90
that may secure for them the exercise of such right, pursuant to the principle of
equality under the law.
190. In the instant case, the Court has considered proved that 18 out of the 19
members of the Sawhoyamaxa Community who died as a consequence of the failure
by the State to comply with its preventive duty regarding their right to life (supra
para. 178,) did not have any birth or death records, nor any other document
provided by the State capable of evidencing their existence and identity.
191. Likewise, it stems from by the facts that the members of the Community lived
in extremely risky and vulnerable conditions, and thus they have economic and
geographical hindrances to get births and deaths duly registered, as well as to obtain
any other identification documents. In that sense, Carlos Marecos, Community leader
expressed that:
As regards to personal documents, we indigenous peoples have always had many
problems, there are still people that have never had any identification documents, and
there are persons that have got identity cards only when they reached old age, because
they had never gone to Asunción. They worked on estates, just like that, without any
documents [....], not even my children have identity cards, we have to go to Asunción to
get the birth certificate and then the identity card, but the fare to get there is expensive,
it is not easy to travel [....]. Most children born in the Community are not registered. [...]
Neither are the demises of the persons who die registered.
192. The above mentioned members of the Community have remained in a legal
limbo in which, though they have been born and have died in Paraguay, their
existence and identity were never legally recognized, that is to say, they did not
have personality before the law. Indeed, the State, in the instant proceeding before
the Court, has intended to use this situation for its own benefit. In fact, at the time
of referring to the right to life, the State alleged:
If neither the existence of these persons nor even their death has even been proved, it is
not possible to claim liability from anyone, lest the State, where are their birth and death
certificates?
193. This Court, apart from having rejected this allegation by the State and having
determined the violation of Article 4(1) of the Convention, (supra 161,) considered
that Paraguay failed to provide the Court with the evidence it requested to facilitate
the adjudication of the case, which the State particularly has the burden to provide
(supra paras. 22 and 48.) The Court considers that it was the duty of Paraguay to
implement mechanisms enabling all persons to register their births and get any other
identification documents, ensuring that these processes are, at all different levels,
accessible both legally and geographically, to render the right to personality before
the law operative.
194. On the basis of the above considerations, and notwithstanding the fact that
other members of the Community may be in the same situation, the Court finds that
the State violated the right to personality before the law enshrined in Article 3 of the
American Convention, to the detriment of NN Galarza, Rosana López, Eduardo
Cáceres, Eulalio Cáceres, Esteban González-Aponte, NN González-Aponte, NN
Yegros, Jenny Toledo, Guido Ruiz-Díaz, NN González, Luis Torres-Chávez, Diego
Andrés Ayala, Francisca Britez, Silvia Adela Chávez, Derlis Armando Torres, Juan
Ramón González, Arnaldo Galarza and Fátima Galarza.