62
i)
the State has promoted important initiatives in connection with titling
of communal lands of the indigenous communities of the Atlantic Coast.
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Considerations of the Court
106.
Article 25 of the Convention states that:
1.
Everyone has the right to simple and prompt recourse, or any other effective
recourse, to a competent court or tribunal for protection against acts that violate his
fundamental rights recognized by the constitution or laws […] or by this Convention,
even though such violation may have been committed by persons acting in the course of
their official duties.
2.
The States Parties undertake:
(a)
to ensure that any person claiming such remedy shall have his rights
determined by the competent authority provided for by the legal system of the State;
(b)
to develop the possibilities of judicial remedy; and
(c)
to ensure that the competent authorities shall enforce such remedies when
granted.
107.
Article 1(1) of the Convention affirms that
[t]he States Parties to this Convention undertake to respect the rights and freedoms
recognized herein and to ensure to all persons subject to their jurisdiction the free and full
exercise of those rights and freedoms, without any discrimination for reasons of race,
color, sex, language, religion, political or other opinion, national or social origin, economic
status, birth, or any other social condition.
108.
Article 2 of the Convention, in turn, asserts that
[w]here the exercise of any the rights or freedoms referred to in Article 1 is not already
ensured by legislative or other provisions, the States Parties undertake to adopt, in
accordance with their constitutional processes and the provisions of this Convention, such
legislative or other measures as may be necessary to give effect to those rights or
freedoms.
109. The Commission argues, as a key point, lack of recognition of the rights of the
Community of Awas Tingni by Nicaragua, and more specifically the ineffectiveness of
the procedures set forth in legislation to make those rights of the indigenous
communities effective, as well as the lack of demarcation of the lands possessed by
that Community. The Commission adds that, despite multiple steps taken by the
Community, official recognition of the communal property has not yet been attained,
and furthermore it has been prejudiced by a logging concession granted to a
company called SOLCARSA on the lands occupied by that community.
110. The State, in turn, argues basically that the Community has disproportionate
claims, since its possession is not ancestral, it is requesting title to lands that have
been claimed by other indigenous communities of the Atlantic Coast of Nicaragua,
and it has never made a formal titling request before the competent authorities.