80
164. For the aforementioned reason, pursuant to article 2 of the American
Convention on Human Rights, this Court considers that the State must adopt the
legislative, administrative, and any other measures required to create an effective
mechanism for delimitation, demarcation, and titling of the property of indigenous
communities, in accordance with their customary law, values, customs and mores.
Furthermore, as a consequence of the aforementioned violations of rights protected
by the Convention in the instant case, the Court rules that the State must carry out
the delimitation, demarcation, and titling of the corresponding lands of the members
of the Awas Tingni Community, within a maximum term of 15 months, with full
participation by the Community and taking into account its customary law, values,
customs and mores. Until the delimitation, demarcation, and titling of the lands of
the members of the Community have been carried out, Nicaragua must abstain from
acts which might lead the agents of the State itself, or third parties acting with its
acquiescence or its tolerance, to affect the existence, value, use or enjoyment of the
property located in the geographic area where the members of the Awas Tingni
Community live and carry out their activities.
165. In the instant case, the Court notes that the Commission did not prove that
there were material damages caused to the members of the Mayagna Community.
166. The Court considers that this Judgment is, in and of itself, a form of
reparation to the members of the Awas Tingni Community.64
167. The Court considers that due to the situation in which the members of the
Awas Tingni Community find themselves due to lack of delimitation, demarcation,
and titling of their communal property, the immaterial damage caused must also be
repaired, by way of substitution, through a monetary compensation. Under the
circumstances of the case it is necessary to resort to this type of compensation,
setting it in accordance with equity and based on a prudent estimate of the
immaterial damage, which is not susceptible of precise valuation.65 Due to the above
and taking into account the circumstances of the cases and what has been decided in
similar cases, the Court considers that the State must invest, as reparation for the
immaterial damages, in the course of 12 months, the total sum of US$ 50,000 (fifty
thousand United States dollars) in works or services of collective interest for the
Judgment of January 29, 1997. C Series No. 31, para.15; Neira Alegría et al. case. Reparations (art. 63.1
American Convention on Human Rights). Judgment of September 19, 1996. C Series No. 29, para.36; El
Amparo case. Reparations (art. 63.1 American Convention on Human Rights). Judgment of September
14, 1996. C Series No. 28, para.14; and Aloeboetoe et al. case. Reparations (art. 63.1 American
Convention on Human Rights). Judgment of September 10, 1993. C Series No. 15, para.43. In this same
direction, cfr., Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion,
I.C.J. Reports 1949, p. 184; Factory at Chorzów, Merits, Judgment No. 13, 1928, P.C.I.J., Series A, No.
17, p. 29; and Factory at Chorzów, Jurisdiction, Judgment No. 8, 1927, P.C.I.J., Series A, No. 9, p. 21.
64
cfr. Case of “The Last Temptation of Christ” (Olmedo Bustos et al.), supra note 9, para.99; and
Suárez Rosero case. Reparations, supra note 63, para.72.
65
cfr. Cesti Hurtado case. Reparations, supra note 13, para.51; “White van” case (Paniagua
Morales et al. vs. Guatemala). Reparations, supra note 13, para.105; Ivcher Bronstein case, supra note
9, para.183; Baena Ricardo et al. case, supra note 9, para. 206; and Castillo Páez case, Reparations (Art.
63.1 American Convention on Human Rights). Judgment of November 27, 1998. C Series No. 43, para.
84. Also cfr., inter alia, Eur. Court H.R., Wiesinger Judgment of 30 October 1991, series A no. 213, para.
85; Eur. Court H.R., Kenmmache v. France (Article 50) judgment of 2 November 1993, Series A no. 270B, para. 11; Eur. Court H.R., Mats Jacobsson judgment of 28 June 1990, Series A no. 180-A, para. 44;
and Eur. Court H.R., Ferraro judgment of 19 February 1991, Series A no. 197-A, para. 21.