61
parties to have the opportunity to object, the Community abstained
from raising any objection to that concession, thus turning it into a
consensual act.
2. Once the logging concession had been granted to the SOLCARSA
corporation, the Community did not resort to the amparo remedy
within the term established by law. Through this grave omission,
absolutely imputable to the applicant party, they lost the possibility of
a judicial review of the administrative decisions pertaining to the
concession.
3. In a negligent manner, the Community disputed the judicial
decision which denied the amparo remedy mentioned in the previous
point, by filing another amparo remedy appealing for review of facts as
well as law,
in which it did not request suspension of the
administrative act which granted the concession.
However, the
Supreme Court of Justice had to restrict its ruling strictly to the
question posed by the applicant (principle of strict right in the review).
4. While the judgment on the remedy appealing for review of facts as
well as law was still pending, the Community did not object to the
logging concession through a remedy of unconstitutionality, when it
had the opportunity to do so. This is another expression of their
negligent exercise of their right to petition. The Community had to
depend on the action of a third party to obtain what it was incapable of
obtaining. The obligation to exhaust all domestic remedies falls
exclusively on the applicants, who cannot excuse themselves from
their procedural obligation due to remedies filed by third parties;
5. Regarding the request for annulment of the logging concession
granted to SOLCARSA, the Nicaraguan judicial system was effective in
providing the judicial remedy requested, as that concession was
declared null. Those who were not effective were the advisors to the
Awas Tingni Community who did not file any remedy of
unconstitutionality against that concession, as was done by some
members of the Regional Council of the RAAN. Regarding the alleged
delay in the enforcement of the judgment that declared the concession
to be null, it must be taken into account that the State requested that
SOLCARSA suspend the concession shortly after that judgment was
issued. Furthermore, the significance of this issue is not clear, as the
remedy which led to that judgment was filed by a third party, alleging
unconstitutionality of a concession granted in areas which Awas Tingni
claims without having demonstrated ancestrality nor property rights;
g)
the right of Awas Tingni to titling of the non-ancestral lands that it
occupies would be subject to a decision by the State, after having consulted
with that Community;
h)
the Commission has said that Nicaragua uses the excuse that it has
not given title deed to the Awas Tingni Community because the territorial
claim submitted by the latter is complex. However, there has been no
decision on that claim because Awas Tingni has not proven that it has the
necessary requirements to substantiate it, specifically that of ancestral
occupation of the ancestral lands; and