26
the medical records, medical certificates, or any other documents which show if the
persons […] mentioned received some type of medical care in any medical field of
specialization, at any hospital, clinic, health center or any other type of health facility,
within six months prior to their death, and a detailed report on the alleged health and
food assistance supplied by any State agency to the members of the Sawhoyamaxa
Indigenous Community from the effective date of Presidential Executive Order No. 3.789
of June 23, 1999, to date.
56.
The representatives submitted the documents “which the members of the
Sawhoyamaxa Community were able to gather,” in conjunction with an affidavit by
the Community leader, Mr. Carlos Marecos, which “certifies the date of death of each
of the victims and the pertinent degree of parentage or kinship” (supra para. 24).
The representatives argued that “on many occasions the members of the Community
cannot go to the assistance centers to receive care for their health or even for their
life due to their lack of financial means, let alone going to vital statistics offices.”
57.
For its part, the State only forwarded documents related to the medical care
provided to the Yakye Axa and Sawhoyamaxa Indigenous Communities during the
second semester of 2005 and argued that it was not possible to find the “record
books of births and thus verify the existence of persons [nor their] medical records
[or] evidence of medical care.”
58.
By virtue of the foregoing, the Court considers that the expert opinion given
through an affidavit by Mr. Pablo Balmaceda is a relevant circumstance for the
adjudication of the instant case, whereby it shall be assessed together with the rest
of the body of evidence as a whole.
VI.
PRIOR CONSIDERATIONS
59.
Since the instant case addresses the issue of the rights of the members of an
indigenous community, the Court considers it suitable to point out that, as it has
done on other occasions,15 pursuant to Articles 24 (Equal Protection of the Law) and
1(1) (Obligation to Respect Rights) of the American Convention, the States should
guarantee, under equal conditions, the full exercise and enjoyment of the rights of
these individuals who are under their jurisdiction.
60.
Notwithstanding, it is to be emphasized that in order to effectively guarantee
these rights, in interpreting and applying their domestic legislation, the States should
take into consideration the characteristics which differentiate the members of the
indigenous peoples from the general population and which conform their cultural
identity. The same line of reasoning should be adopted by the Court, as it shall in the
instant case, to assess the scope and meaning of the Articles of the American
Convention the State has been charged with breaking by the Commission and the
representatives.
*
61.
For the purpose of determining the object of the alleged violation of Article 4
of the American Convention (infra paras. 148 to 185), the Court shall now examine
the various lists of the Community members who allegedly died as a consequence of
the alleged failure of the State to comply with its duty to prevent violations of the
15
Cf. Case of the Indigenous Community Yakye Axa, supra note 1, para. 51.