65
competence of the Court on March 26, 1993, the Court will compute the duration of
the proceedings as of that date. From said date until the date of the instant
Judgment, 13 years have elapsed without any final solution having been given to the
claim of the Sawhoyamaxa Community members.
96.
Moreover, the Court notes that the delay in the administrative proceedings
under analysis in the instant Judgment is the result of state authorities
systematically deferring action. In fact, since March 26, 1993, date on which
Paraguay recognized the contentious competence of the Court, until now, no
significant steps have been taken in the administrative proceedings analyzed. INDI
and IBR have just sent the case file to each other and recurrently requested the
owners of the lands claimed by the Community to make offers “with respect to the
affected piece of land,” without getting any positive answer thereto, for the IBR
finally to declare, on June 15, 1999, that it had no competence to decide whether or
not to condemn the lands and to hand over the responsibility to the INDI (supra
para. 73(44), an agency which, according to the case file kept in this Court, has
taken no action since July 1999.
97.
In view of the foregoing, and considering that in the above mentioned Case of
the Indigenous Community Yakye Axa v. Paraguay, the Court declared that the term
of 11 years and eight months incurred in the land claim proceedings was in itself a
violation of the right to a fair trial of the members of said Community,178 it declares
that the term of 13 years incurred in the proceedings related to the instant case may
hardly be considered reasonable.
98.
Thus, the Court considers that the action taken by state authorities in the
land claim administrative proceedings fail to conform to the reasonable time
principle.
*
99.
Furthermore, the State asserted that the representatives had not used the
administrative law proceedings to challenge the status of rationally exploited the
lands were given and that the interested parties had failed to institute ordinary
judicial proceedings to determine whether the right to ancestral communal property
of the land prevailed over the right to its private ownership.
100. In this regard, the Court considers that the argument of the State relates to
the exhaustion of domestic remedies; consequently, according to the invariable case
law of this Court, it is not feasible that at this stage of the proceedings to discuss
issues that should have been addressed in previous stages in which the tacit waiver
of the State´s opportunity to object the lack of exhaustion of domestic remedies was
operative.179 Therefore, the Court takes into account that, at the initial stages of the
proceedings before the Commission, the State failed to allege that ordinary and
administrative law remedies had not been exhausted; on the contrary, the State
advocated in furtherance of the requests for condemnation before the National
178
179
Cf. Case of the Indigenous Community Yakye Axa, supra note 1, paras. 85-87.
Case of the Indigenous Community Yakye Axa, supra note 1, para. 91 and cf. Case of AcevedoJaramillo et al, supra note 3, para. 124; Case of García-Asto and Ramírez-Rojas, supra note 4, paras. 49
and 50, and Case of of the Serrano-Cruz sisters v. El Salvador. Preliminary Objections. Judgment of
November 23, 2004. Series C No. 118, para. 135.