77
1.
2.
3.
4.
Establish a juridical procedure, in accordance with relevant international and
national legal norms, which will lead to prompt and specific official recognition
and demarcation of the rights of the Awas Tingni Community to its communal
natural resources and rights;
Abstain from granting or considering any concessions to utilize natural
resources in the lands used and occupied by Awas Tingni, until the issue of
land tenure affecting Awas Tingni has been resolved, or until a specific
agreement has been reached on this matter between the State and the
Community;
Pay equitable compensation for the monetary and moral damage suffered by
the Community due to lack of specific official recognition of its rights to natural
resources and lands and due to the concession to SOLCARSA, [and]
Pay the Indigenous Community for the costs it incurred in to defend its rights
before the Courts in Nicaragua and in the procedures before the Commission
and the Inter-American Court.
159. On August 22, 2001 the Commission filed the brief on reparations, costs and
expenses, which had been requested by the Secretariat on July 31, 2001. The
deadline for filing that brief expired on August 10, 2001, so it was received 12 days
after expiration of the term. In this regard, the Court considers that the time
elapsed cannot be considered reasonable, according to the criterion the Court has
followed in its jurisprudence.61 Under the circumstances of this case, the delay was
not due to a mere mistake in calculating the term. Furthermore, the imperatives of
legal certainty and procedural balance require that terms be respected62, unless
exceptional circumstances impede this, which did not occur in the instant case.
Therefore, the Court rejects the brief filed by the Commission on August 22, 2001,
because it was time-barred, and abstains from discussing its content.
Arguments of the State
160. The State, in turn, stated in its briefs responding to the petition and to the
final arguments, that:
a)
any claim to compensation due to lack of titling or granting of the
logging concession to the SOLCARSA corporation is unfounded because:
i)
the SOLCARSA concession caused no damage to the
Community.
In its submission on the facts, the Commission
recognized that it is not clear whether there was damage to the forest
in the areas claimed by the Community. Execution of the logging
activity derived from the concession granted to SOLCARSA did not
begin, because the State did not approve the First Management Plan
for the logging operation. However, the corporation did in effect cause
damage to the forest in the area of Cerro Wakambay, through illegal
felling of trees outside the area of the logging concession granted to it.
The illegal action by SOLCARSA, which was external to the concession,
was a private action not linked to any governmental permissiveness,
and which was punished by the State authorities;
61
cfr. Baena Ricardo et al. case, supra note 9, para. 50; Case of “The Last Temptation of
Christ”(Olmedo Bustos et al. case). Order by the Inter-American Court of Human Rights on November 9,
1999, Whereas clause No. 4; Castillo Páez case, Preliminary Objections. Judgment of January 30, 1996. C
Series No. 24, para. 34; Paniagua Morales et al. case, Preliminary Objections. Judgment of January 25,
1996. C Series No. 23, paras. 38, 40-42; and Cayara case, Preliminary Objections. Judgment of February
3, 1993. C Series No. 14, paras. 42 and 63.
62
cfr. Case of “The Last Temptation of Christ”, supra note 61, Whereas clause No. 4.