The ruling of the Inter-American Court of Human Rights of October 8, 2015 in the case of the Punta Piedra Garifuna Community v. Honduras (Series C, No. 304).
The applicant was assisted in preparing a complaint to the Inter-American Commission on Human Rights (Washington, USA).
Subsequently, the Inter-American Commission on Human Rights referred the applicant's complaint to the Inter-American Court of Human Rights (San Jose, Costa Rica) for consideration. The complaint was then communicated to Honduras.
The case has successfully examined the complaint about the obligation to guarantee the effective use of the collective territory of indigenous and tribal peoples by purifying the title.
The obligation to guarantee the effective use of the collective territory of indigenous and tribal peoples through the purification of the title.
Circumstances of the case
In 1993, the state of Honduras granted a title to the community of Punta Piedra Garifuna. The title was subsequently expanded in 1999. Nevertheless, at the moment when the community received the title, part of the territory was occupied by the peasants of the village of Rio Miel. As a result, numerous conciliation procedures were launched. In 2001, the state pledged to restore the title to the territory in favor of the Punta Piedra Garifuna community by paying for the resettlement of Rio Miel peasants and the improvements they made to their property. However, these obligations were not fulfilled, which exacerbated the conflict between the communities. From that moment, acts of violence and intimidation took place, and the leader of the Punta community, Piedra Garifuna, Felix Ordonez, Suazo, was killed. In the course of the proceedings, information submitted to the Inter-American Court of Human Rights indicated that the concession for subsoil exploration granted by the state could also affect part of the territory in which the Punta Piedra Garifuna community received the title. For the purposes of this particular case, the Inter-American Court of Human Rights (hereinafter - the Inter-American Court of Justice) requested the report of the American Association (hereinafter - AAAS) for more information using satellite imagery analysis tools for the territory belonging to the Punta Piedra Garifuna community. In addition, a court delegation led by the chairman of the court visited the territories to inspect some disputed areas, interview villagers and meet with the parties.
The peoples of Garifuna are a cultural and special ethnic group that arose due to the syncretism of indigenous and African people, which asserts its rights in Honduras as indigenous peoples.
QUESTIONS OF LAW
(a) Preliminary objections. The Government submitted two preliminary objections to the failure to exhaust domestic remedies. They were unanimously rejected on the grounds that some of the arguments in Honduras had expired and there were unjustified delays in making the final decision in the investigation into the death of Ordonez Suaso.
(b) Partial recognition of international responsibility. The Inter-American court unanimously accepted the recognition of international responsibility expressed by the state authorities, since they did not release the community title of Punt Piedr Garifun from encumbrance and, thus, did not guarantee the community unhindered possession of the territory. According to the Inter-American Court, this recognition had legal consequences regarding the violation of the right to collective property of the community of Punta Piedra Garifuna.
(c) Article 21 (right to property) of the American Convention on Human Rights (hereinafter - ACHR) in connection with Articles 1 (1) (obligation to respect and enforce rights) and 2 ACHR (domestic legal consequences). An Inter-American court found that the state’s failure to grant a clean title and conciliation agreements prevented the use of property by the Punta Piedra Garifuna community and effective protection from third parties in violation of the right to collective property. The Inter-American court indicated that one of the appropriate measures to ensure the effective use of the collective territory of indigenous and tribal peoples is to "clear the title." For the purposes of the present case, the court assumed that the “purification of title” (saneamiento) is a process arising from their obligation on the part of the state to eliminate any interference with the territory, in particular, granting unlimited possession to the rightful owner and, if applicable, paying for improvements made by third parties , and their relocation. The court also found that even if the purification of a title is a measure that should usually be performed before the transfer of the title, if this happened, the state has an undeniable obligation to clear the title in order to guarantee the use of the collective property of the Punta Piedra Garifuna community. This obligation must be fulfilled by the state as such and with particular care in order to protect the rights of third parties as well.
Regarding the obligation to provide advice and the right to cultural identity, the court found that the concession for exploration of mineral resources could also affect part of the territory on which the community of Punta Piedra Garifuna was given the title. Thus, the state was obliged to carry out the consultation process prior to any research prokut that could affect the traditional territory of the indigenous or tribal communities, but did not do so in the present case. In this regard, the court examined domestic law and found it inaccurate in relation to the previous stages of the consultation process, since it did not establish the need for consultations before the research stage. Based on this, the Inter-American court found a violation of the obligation of the state to take domestic measures in relation to articles 21, 1 (1) and 2 of the ACHR.
In this regard, the court took into account that Article 15 (2) of the Convention on Indigenous and Tribal Peoples in Independent Countries, 1989 (Convention of the International Labor Organization No. 169) provides as follows: “In cases where the state reserves the property mineral resources or the resources of the earth’s bowels or rights to other resources related to lands, governments establish procedures or ensure that procedures are maintained through which they consult with these peoples in order to determine whether, and to what extent, the interests of these peoples are harmed - prior to the commencement of or prior to the issuance of a permit for the implementation of any exploration or exploitation programs for such resources relating to their lands. To the extent possible, the peoples concerned shall participate in the results of such activities and receive fair compensation for any damage that may be caused to them as a result of such activities".
The case has violated the requirements of the Convention (pronounced unanimously).
(d) Article 25 of the ACHR (right of judicial defense) in relation to Article 1 (1) of the ACHR. The Inter-American Court indicated that, due to the lack of a collective remedy in Honduras during the events, the conciliation agreements, which were ad hoc procedures, had to be adopted by mechanisms that guaranteed their direct enforceability, without requiring other administrative or judicial proceedings for that purpose. Thus, even if the conciliation agreements adopted in the present case were appropriate for obtaining title deletion to the native territory, the lack of direct enforcement made them ineffective and prevented the use of the territory allotted to the Punta Piedra Garifuna community. Consequently, the court held the state liable for violation of Articles 25 (1) and 25 (2) (c) of the ACHR.
Ad hoc (lat.) - for this particular case (translator's note).
The case has violated the requirements of the Convention (pronounced unanimously).
(e) Article 4 of the ACHR (right to life) in conjunction with Article 1 (1) of the ACHR. Given the alleged evasion of the right to life of Felix Ordonez, Suaso, the Inter-American Court indicated that there was not enough data to determine what the state knew or should have known about the situation of the real and immediate threat of harm to her before his death. Accordingly, the Inter-American Court found no violation of the obligation to guarantee the right to life.
In the case, the requirements of the Convention were not violated (delivered unanimously).
(f) Article 8 (1) of the ACHR (judicial guarantees) and article 25 in relation to article 1 (1) of the ACHR. The Inter-American Court analyzed many complaints filed by members of the Punta Piedra Garifuna community, including the seizure of territories, threats, and the assassination of Ordonez Suaso. He concluded that the State had not respected its obligations of due diligence and of conducting an investigation within a reasonable time. Thus, the state was responsible for violating the rights provided for in Articles 8 (1) and 25 of the AHRC, to the detriment of the interests of Felix Ordonez Suaso and members of the Punta Piedra Garifuna community.
The case has violated the requirements of the Convention (unanimously).
(g) Reparations. The Inter-American Court found that the ruling itself constitutes a form of reparation, and indicated, in particular, that the state: (i) guarantees the use of the traditional territory of the Punta Piedra Garifuna community by purging the title; (ii) terminate any activity regarding a subsoil exploration concession that has not been previously agreed upon; (iii) establish a community development fund for members of the Punta Piedra Garifuna community in compensation for pecuniary and non-pecuniary damage; (iv) publish an overview of the decision and broadcast it on the radio; (v) take measures to ensure that domestic mining laws do not affect the right to consult; (vi) create an appropriate mechanism for regulating the property registry system; (vii) continue and complete within a reasonable time an investigation into the death of Ordonez Suaso and, if applicable, punish those responsible.