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d) in the instant case, the lack of an effective remedy allowing Paraguayan
state agencies to secure full and free exercise of human rights by the
members of the Community is tantamount to a violation by Paraguay of the
duty to adopt domestic provisions that ensure the exercise of the rights
established in the American Convention, pursuant to Article 2 thereof, and
e) the State should have adopted effective administrative, legal or judicial
measures for the purpose of achieving a final solution to the claim laid by the
leaders of the Sawhoyamaxa Community in 1991.
Argument by the Representatives
75.
In relation to Articles 8, 25, 1(1) and 2 of the American Convention, the
Representatives alleged that:
a) the Paraguayan State failed to comply with its obligation to provide for an
effective remedy aimed at restoring their lands to the Sawhoyamaxa
Community. Firstly, because of the lack of administrative and legislative
response, since 1991, to the claim laid by the Sawhoyamaxa Community over
their lands; and, secondly, because the provisional measures adopted in order
to protect their habitat were overlooked with impunity, and as a result, over
1,250 hectares of forest were cut down;
b) the judicial measures ordered on the motion of the members of the
Community to protect their ancestral habitat turned out to be ineffective,
since six months after their adoption, the owner of the piece of real estate
conveyed the lands fictitiously and cut down 1,250 hectares of forest, and
was stopped on account of the pressure of national and international public
opinion. Finally, said orders were reversed by the Court of Appeals seized with
the matter, even though the Community stated its claim to be still current
and therefore its interest in protecting its habitat;
c) although the land restitution proceedings are very complex, the
reasonable time guarantee was violated because the case file rested in
several state agencies for long periods of time — even though they were
seized with no more than trivial proceedings — and no pronouncement or
ruling with respect to the requests was entered within statutory deadlines, it
being therefore possible to uphold that the omissive attitude taken up by the
State adds one more factor to the inherent complexity of land restitution
proceedings;
d) according to Inter-American precedents, an excessive delay amounts, per
se, to a violation of the right to fair trial. Therefore, the delays of 14 years
and 6 months in providing a response to land claims; of 1 year and 9 months
in recognizing leaders; of 6 years and 11 months in recognizing legal
personality, and the delay of two months to grant the requested injunctions,
fail to conform to the concept of reasonable time defined in Article 8(1) as a
conditioning element of full protection and respect of the right to fair trial;
e) the administrative remedies for land restitution is so ineffective that the
possibility of the State purchasing the claimed lands remains subject to the
exclusive acquiescence of the affected owner, who by withholding consent