98
207. The compensation to be established by the Court to the benefit of the
members of the Sawhoyamaxa Community as a whole will be placed at the disposal
of the leaders of the Community, in their capacity as representatives thereof.
208. Furthermore, this Court considers “injured party” the 19 members of this
Indigenous Community who died as a result of the events, to wit: 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, Esteban
Jorge Alvarenga, Derlis Armando Torres, Juan Ramón González, Arnaldo Galarza and
Fátima Galarza (supra para. 178).
209. The amount to be granted in favor of these persons must be delivered to their
next of kin, pursuant to the practices and customary law of the Community.
B) Restitution of traditional lands to the members of the Sawhoyamaxa
Community
210. In view of its conclusions contained in the chapter related to Article 21 of the
American Convention (supra para. 144), the Court considers that the restitution of
traditional lands to the members of the Sawhoyamaxa Community is the reparation
measure that best complies with the restitutio in integrum principle, therefore the
Court orders that the State shall adopt all legislative, administrative or other type of
measures necessary to guarantee the members of the Community ownership rights
over their traditional lands, and consequently the right to use and enjoy those lands.
211. As it has been proven, the lands claimed before the domestic jurisdiction by
the members of the Community are part of their traditional habitat (supra para.
73(9)) and are suitable for their ultimate settlement (supra para. 73(10)). However,
restitution of such lands to the Community is barred, since these lands are currently
privately owned.
212. On that matter, pursuant to Courts precedent,234 the State must consider the
possibility of purchasing these lands or the lawfulness, need and proportionality of
condemning these lands in order to achieve a lawful purpose in a democratic society,
as reaffirmed in paragraphs 135 to 141 of the instant Judgment and paragraphs 143
to 151 of the judgment entered by the Court in the Case of the Indigenous
Community Yakye Axa. If restitution of ancestral lands to the members of the
Sawhoyamaxa Community is not possible on objective and sufficient grounds, the
State shall make over alternative lands, selected upon agreement with the
aforementioned Indigenous Community, in accordance with the community's own
decision-making and consultation procedures, values, practices and customs. In
either case, the extension and quality of the lands must be sufficient to guarantee
the preservation and development of the Community’s own way of life.
213. In the instant case, the Court notes that the State has expressed that it
“intends to make over, for no consideration to the Sawhoyamaxa Community, as
provided in the Constitution and in the statutes in force, an extension of land
234
Cf. Case of Indigenous Community Yakye Axa. Interpretation of the Judgment on the Merits,
Reparations, and Costs (art. 67(1) American Convention on Human Rights). Judgment of February 6,
2006. Series C No. 142, para. 26, and Case of Indigenous Community Yakye Axa, supra note 1, para. 144
to 154 and 217.