63
Nicaragua also maintains that there is a legal framework which regulates the
procedure of land titling for indigenous communities under the authority of the
Nicaraguan Agrarian Reform Institute (INRA). As regards the logging concession
granted to SOLCARSA, the State points out that the Awas Tingni Community suffered
no prejudice, as that concession was not executed but rather was declared
unconstitutional.
111. The Court has noted that article 25 of the Convention has established, in
broad terms,
the obligation of the States to offer, to all persons under their jurisdiction, effective
legal remedy against acts that violate their fundamental rights. It also establishes that
the right protected therein applies not only to rights included in the Convention, but also
to those recognized by the Constitution or the law.46
112. The Court has also reiterated that the right of every person to simple and
rapid remedy or to any other effective remedy before the competent judges or
courts, to protect them against acts which violate their fundamental rights, “is one of
the basic mainstays, not only of the American Convention, but also of the Rule of
Law in a democratic society, in the sense set forth in the Convention”.47
113.
The Court has also pointed out that
the inexistence of an effective recourse against the violation of the rights recognized by
the Convention constitutes a transgression of the Convention by the State Party in
which such a situation occurs. In that respect, it should be emphasized that, for such a
recourse to exist, it is not enough that it is established in the Constitution or in the law
or that it should be formally admissible, but it must be truly appropriate to establish
whether there has been a violation of human rights and to provide everything necessary
to remedy it.48
114. This Court has further stated that for the State to comply with the provisions
of the aforementioned article, it is not enough for the remedies to exist formally,
since they must also be effective.49
115. In the present case, analysis of article 25 of the Convention must be carried
out from two perspectives. First, there is the need to analyze whether or not there is
a land titling procedure with the characteristics mentioned above, and secondly
whether the amparo remedies submitted by members of the Community were
decided in accordance with article 25.
a)
116.
Existence of a procedure for indigenous land titling and demarcation:
Article 5 of the 1995 Constitution of Nicaragua states that:
46
cfr. Case of the Constitutional Court, supra note 10, para. 89; and Judicial Guarantees in States
of Emergency (arts. 27.2, 25 and 8 American Convention on Human Rights) Advisory Opinion OC-9/87 of
October 6, 1987. A Series No. 9, para. 23.
47
cfr. Ivcher Bronstein case, supra note 9, para.135; Case of the Constitutional Court, supra note
10, para. 90; and Bámaca Velásquez case. Judgment of November 25, 2000. C Series No. 70, para. 191.
48
cfr. Ivcher Bronstein case, supra note 9, para. 136; Cantoral Benavides case. Judgment of
August 18, 2000. C Series No. 69, para. 164; and Durand and Ugarte case, supra note 12, para. 102.
49
cfr. Case of the Constitutional Court, supra note 10, para. 90; Bámaca Velásquez case, supra
note 47, para. 191; and Cesti Hurtado case. Judgment of September 29, 1999. C Series No. 56, para.
125.