76
international responsibility of the State and applicable under International Human
Rights Law, actions or omissions by any public authority, whatever its hierarchic
position, are chargeable to the State which is responsible under the terms set forth in
the American Convention59.
155. For all the above, the Court concludes that the State violated article 21 of the
American Convention, to the detriment of the members of the Mayagna (Sumo) Awas
Tingni Community, in connection with articles 1(1) and 2 of the Convention.
X
OTHER ARTICLES OF THE AMERICAN CONVENTION
156. In its brief with the final pleadings, the Commission alleged that given the
nature of the relationship that the Awas Tingni Community has with its traditional
land and natural resources, the State is responsible for the violation of other rights
protected by the American Convention. The Commission stated that, by ignoring and
rejecting the territorial claim of the Community and granting a logging concession
within the traditional land of the Community without consulting the opinion of the
Community, “the State breached a combination” of the following articles enshrined in
the Convention: 4 (Right to Life), 11 (Right to Privacy), 12 (Freedom of Conscience
and Religion), 16 (Freedom of Association), 17 (Rights of the Family); 22 (Freedom
of Movement and Residence), and 23 (Right to Participate in Government).
*
*
*
Considerations of the Court
157. With respect to the alleged violation of articles 4, 11, 12, 16, 17, 22 and 23
of the Convention, as argued by the Commission in its brief on final pleadings, the
Court has considered that even when the violation of any article of the Convention
has not been alleged in the petition brief, this does not impede the violation being
declared by the Court, if the proven facts lead to conclude that such a violation did in
fact occur.60 However, in the instant case, the Court refers to what was decided in
this same Judgment in connection with the right to property and the right to judicial
protection of the members of the Awas Tingni Community, and it also dismisses the
violation of rights protected by the abovementioned article because the Commission
did not state the grounds for it in its brief on final arguments.
XI
APPLICATION OF ARTICLE 63(1)
Arguments of the Commission
158. In its application brief, the Commission requested that the Court, pursuant to
article 63(1) of the Convention, declare that the State must:
59
cfr. Ivcher Bronstein case, supra note 9, para. 168; Case of the Constitutional Court , supra note
10, para. 109; and Bámaca Velásquez case, supra note 47, para. 210.
60
cfr. Durand and Ugarte case, supra note 12, para.84; Castillo Petruzzi et al. case. Judgment of
May 30, 1999. C Series No. 52, para. 178; and Blake case. Judgment of January 24, 1998. C Series No.
36, para. 112.