85
Presidential Order became effective, at least 19 persons died (supra para. 73(74)(1),
(5) to (16), (20), (22) and (27) to (30).)
171. As it has been shown in the chapter of Proven Facts (supra para. 73(74,)
most of the Community members that died were boys and girls under 3 years of age,
and the causes of their deaths range from enterocolitis, dehydration, cachexia,
tetanus, measles, and respiratory illnesses, such as pneumonia and bronchitis; all of
them are reasonably foreseeable diseases that can be prevented and treated at a low
cost.219
172. The illnesses of Rosana López (supra para.73(74)(2)), Esteban González
(supra para. 73((74)(5),) NN Yegros (supra para. 73(74)(7),) Guido Ruiz-Díaz (supra
para.73(74)(9),) Luis Torres-Chávez (supra para. 73(74)(11),) Francisca Brítez
(supra para. 73(74)(16),) and Diego Andrés Ayala (supra para. 73(74)(15),) were
not treated. These persons simply died in the Community. The State has not
specifically contested these facts and has not filed any evidence to prove the
contrary, in spite of the requests made by the Tribunal (supra para. 20.)
Consequently, this Court finds that the said deaths are attributable to the lack of
adequate prevention and to the failure by the State to adopt sufficient positive
measures, considering that the State had knowledge of the situation of the
Community and that action by the State could be reasonably expected. The aforesaid
cannot be applicable to the death of the male child NN Torres (supra para.
73(74)(13,) who suffered from blood dyscracia and whose death cannot be
attributable to the State.
173. The Court does not accept the State argument regarding the joint
responsibility of the ill persons to go to the medical centers to receive treatment, and
of the Community leaders to take them to such centers or to communicate the
situation to the health authorities. From the issuance of the emergency Order, the
INDI and the Ministerio del Interior [Ministry of the Interior] and the Ministerio de
Salud Pública y Bienestar Social [Ministry of Public Health and Social Welfare] had
the duty to take “the actions that might be necessary to immediately provide food
and medical care to the families that form part of [the Sawhoyamaxa Community],
pending the judicial proceedings regarding the legislation of the lands claimed by
such Community as part of [their] traditional habitat” (supra para. 73(63).)
Therefore, the provision of goods and health services did no longer specifically
depend on the individual financial capacity of the alleged victims, and therefore, the
State should have taken action contributing to the provision of such goods and
services. That is to say, those measures which the State undertook to adopt before
the members of the Sawhoyamaxa Community were different, in view of their urgent
nature, from those that the State should adopt to guarantee the rights of the
population and of the indigenous communities in general. To accept the contrary
would be incompatible with the object and purpose of the American Convention,
which requires that its provisions be interpreted and applied so that the rights
contemplated therein be effectively protected in practice.
174. The serious impediments for the members of this Community to reach the
health centers on their own must be added to the foregoing. The alleged victims
pointed out the following:
219
Cf. The United Nations Children’s Fund (UNICEF) and the World Health Organization (WHO),
Immunization Summary 2006 (2006).