6
Court’s case law.
24.
I understand that the creation of the conditions for a decent life, which
signifies the development of an individual’s potential and the search for his own
destiny, should take place in accordance with that individual’s own decisions, his
respective opinions, his shared culture. This is the basis for the close connection
between the right to a decent life, on the one hand, and the right to the “relationship
between man and the land” – ownership, property, in the broadest sense – which the
judgment has taken into account, on the other. This explains why there was a
violation of the right to life embodied in Article 4(1) of the Convention – with the
scope we have described – to the detriment of the members of the Yakye Axa
community. The lack of evidence about the causes of the death of 16 members of
the community, which explains the majority vote in that judgment, does not exclude
or reduce the terms of the declaration formulated in the third operative paragraph:
there was a violation of the right to life and this violation affected all the members of
the community.
E)
Containment. Case of YATAMA
25.
The Case of YATAMA has examined another group of violations that harm
members of communities. This case does not deal with the more dramatic aspects
seen in the previous cases, such as: physical suppression, deprivation of land,
violation of the right to life. The circumstances in which the facts of this case
occurred suggest that, following a long struggle which has produced appreciable
progress, YATAMA, which unites members of many communities, has opened up its
own space in political and social life, which gives it a relevant and accepted position
– not without severe reticence, with diverse juridical implications – and safeguards it
from aggressions such as those observed in the other cases. This case deals with the
acts or omissions by which the progress of the communities, as such, is “contained.”
Thus, we find ourselves faced with a different situation which, perhaps, corresponds
to the final stage in the series of refusals to accept equality and non-discrimination in
favor of every individual, including, of course, the members of these minority
groups.
26.
In this case the acts and omissions that harm the right recognized in the
Convention are concentrated in political activities and, in this regard, affect the
possibility of the members of indigenous communities from intervening on an equal
footing with their fellow citizens, members of other social sectors, and participating
effectively in the decisions that affect them, together with the latter. One of the ways
in which this intervention and participation occurs is through the exercise of political
rights.
27.
Here, I refer, as I have already said, to material equality and effective nondiscrimination, not to a mere formal equality that leaves intact – or scarcely hides –
marginalization and maintains discrimination. This type of equality tends to be
obtained through factors or elements of compensation, equalization, development or
protection that the State provides to the members of the communities, by means of
a juridical regime that recognizes the facts relating to a certain cultural background
and is established on the basis of a genuine recognition of real limitations,
discriminations or restrictions and contributes to overcoming, suppressing or
compensating them with appropriate instruments; not merely with general
declarations on an inexistent and impracticable equality. Equality is not a starting
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