62
recognition of leaders; ii) proceedings for recognition of legal capacity; iii)
injunctions, and iv) land claim proceedings.
82.
Therefore, in this Chapter, the Court will analyze whether said proceedings
were conducted with respect for the right to a fair trial and within a reasonable time,
as well as whether they were an effective remedy to ensure the rights of the
petitioners. To that effect, the Court recalls that the due process of the law
guarantee must be observed in the administrative process and in any other
procedure whose decisions may affect the rights of persons.175
83.
Likewise, pursuant to the case law of the Court, it is crucial that the States
grant effective protection providing for the particular conditions of the indigenous
peoples, their economic and social situation, as well as their special vulnerability,
customary law, values, and customs.176
i)
Proceedings for recognition of leaders
84.
With regard to the recognition of leaders, Article 12 of Law No. 904/81
establishes that:
The leaders shall act as legal representatives of the community. The nomination of the
leaders shall be notified to the Instituto [Paraguayo del Indígena] [Paraguayan Institute
on Indigenous Affairs], which shall recognize said appointment within the term of thirty
days from the date of notice thereof and shall record it in the Registro Nacional de
Comunidades Indígenas [Indigenous Communities National Registry.]
85.
The Court has ascertained that on August 6, 1991, members of the
indigenous communities of Maroma, Loma Porá, Ledesma, Naranjito, Diana, Santa
Elisa Garay, Santo Domingo and Kilómetro 16 filed with the INDI a petition for
recognition of Carlos Marecos-Aponte and Teresio González as their leaders, which
was granted only as late as April 27, 1993, by Resolution of the President of the
Council (supra paras. 73(11) and 73(12)).
86.
While it took more than twenty months for the State to grant the petition,
even though the legal term is thirty days, the Court notes that Paraguay ratified the
contentious competence of the Court on March 26, 1993, and that as from that date,
it took only thirty-two days for the authorities to issue the decision recognizing the
leaders of the Community. In view of the foregoing, the Court considers that in the
instant case the it lacks competence rationae temporis to declare a violation of the
American Convention, in relation to the process of recognition of leaders.
ii)
87.
Proceedings for recognition of legal personality
The provisions of Law No. 904/81 concerning this issue prescribe that:
Article 9.- The petition for recognition of legal personality shall be filed with the
Instituto Paraguayo del Indígena (Paraguayan Institute on Indigenous Affairs) by the
leaders of the community, and shall include the following particulars:
175
Cf. Case of the Indigenous Community Yakye Axa, supra note 1, para. 62, and Case of BaenaRicardo,. Judgment of February 2, 2001. Series C No. 72, para. 127.
176
Cf. Case of the Indigenous Community Yakye Axa, supra note 1, para. 63.