REPORT 58/09 PETITION 12.354 ADMISSIBILITY KUNA OF MADUNGANDÍ AND EMBERÁ OF BAYANO INDIGENOUS PEOPLES AND THEIR MEMBERS PANAMA April 21, 2009 I. SUMMARY 1. On May 11, 2000, the Inter-American Commission on Human Rights (hereinafter "the InterAmerican Commission", "the Commission" or "the IACHR") received a complaint presented by the International Human Rights Law Clinic of the Washington College of Law, Centro de Asistencia Legal Popular (CEALP), Asociación Napguana, and Emily Yozell (hereinafter "the petitioners"),1 on behalf of the indigenous peoples Kuna of the Madungandí and the Emberá of Bayano and their members, (hereinafter “the alleged victims”), against the Republic of Panama, (hereinafter the “Panamanian State”, “Panama” or the “State”). 2. The petition alleges that the construction of the Bayano Hydrolectric Dam, which resulted in the flooding of the ancestral territory they used to inhabit, violated the collective rights of the Kuna of Madungandí and Emberá of Bayano peoples because: the alleged victims were not paid the full amount of compensation agreed to by the State; the lands currently inhabited by the Kuna of Madungandí have not been demarcated or protected; the territory occupied by the Emberá of Bayano has not been recognized; the intrusion by colonists into the lands presently inhabited by the alleged victims has generated a situation of constant conflict; and because indigenous culture has not been respected. The petitioners allege that the State of Panama is responsible for the violation of the rights enshrined in Articles 4 (right to life), 7 (right to personal liberty), 10 (right to compensation), 12 (freedom of conscience and religion), 17 (rights of the family), 19 (rights of the child) and, 21 (right to private property) of the American Convention on Human Rights (hereinafter the “Convention” or the “American Convention”). They also hold that the State disregarded Articles I, III, V, VI, VII, XI, and XIII of the American Declaration of the Rights and Duties of Man (hereinafter “the American Declaration”). 3. The State, for its part, asserts that the petition should be declared inadmissible because no violation exists of the alleged victims’ human rights on account of the fact that it has met their demands through various agreements and resolutions and that they have been compensated for being moved off their lands. The State also argues that the rule of prior exhaustion of domestic remedies set forth in Article 46(1)(a) of the American Convention has not been met. 4. Having examined the positions of the parties and the requirements set forth in Articles 46 and 47 of the Convention, and without prejudging the merits of the matter, the Commission concludes that the petition is admissible with regard to alleged violations of Article 21 of the American Convention, in conjunction with Article 1(1) of same. Furthermore, under the principle of iura novit curia, the Commission will, in the merits stage, analyze if a possible violation exists of Articles 2, 8(1), 24, and 25 of the American Convention. The Commission concludes that the petition is inadmissible with respect to Articles 4, 7, 10, 12, 17, and 19 of the Convention and inadmissible with respect to Articles I, III, V, VI, VII, XI and XIII of the American Declaration. The Commission has decided to notify the parties of this decision, publish it, and include it in its Annual Report to the General Assembly of the Organization of American States. II. PROCESSING BY THE COMMISSION A. Processing of the Petition In a letter received on October 30, 2008, the International Human Rights Law Clinic of the Washington College of Law informed that Chief Félix Mato Mato, legal representative of the Madungandí Reserve designated the law firm of Rubio, Álvarez, Solís & Abrego as their new representatives. 1 1

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