Xákmok Kásek Indigenous Community v. Paraguay
Paraguay, Inter-American Court of Human Rights

Xákmok Kásek Indigenous Community v. Paraguay

DATE 24-08-2010DOWNLOAD LEGAL DECISION

Judges:

Diego García-Sayán

Diego García-Sayán

Leonardo Alberto Franco

Leonardo Alberto Franco

Manuel E. Ventura Robles

Manuel E. Ventura Robles

Margarette May Macaulay

Margarette May Macaulay

Rhadys Iris Abreu Blondet

Rhadys Iris Abreu Blondet

Alberto Pérez Pérez

Alberto Pérez Pérez

Eduardo Renato Vio Grossi

Eduardo Renato Vio Grossi

Augusto Fogel Pedrozo

Augusto Fogel Pedrozo

prevnext

Topics:

Maternal Health

Related standards:

American Convention on Human Rights, San José of Costa Rica Pact. Article 1

RELATED STANDARDS

American Convention on Human Rights, San José of Costa Rica Pact. Article 1

1. Los Estados Partes en esta Convención se comprometen a respetar los derechos y libertades reconocidos en ella y a garantizar su libre y pleno ejercicio a toda persona que esté sujeta a su jurisdicción, sin discriminación alguna por motivos de raza, color, sexo, idioma, religión, opiniones políticas o de cualquier otra índole, origen nacional o social, posición económica, nacimiento o cualquier otra condición social. 2. Para los efectos de esta Convención, persona es todo ser humano.
American Convention on Human Rights, San José of Costa Rica Pact. Articule 21. Right to Property

RELATED STANDARDS

American Convention on Human Rights, San José of Costa Rica Pact. Articule 21. Right to Property

1. Everyone has the right to the use and enjoyment of his property. The law may subordinate such use and enjoyment to the interest of society. 2. No one shall be deprived of his property except upon payment of just compensation, for reasons of public utility or social interest, and in the cases and according to the forms established by law. 3. Usury and any other form of exploitation of man by man shall be prohibited by law.
American Convention on Human Rights, San José of Costa Rica Pact. Article 3. Right to Juridical Personality

RELATED STANDARDS

American Convention on Human Rights, San José of Costa Rica Pact. Article 3. Right to Juridical Personality

Every person has the right to recognition as a person before the law.
American Convention on Human Rights, Pact of San José, Costa Rica. Article 2. Domestic legal effects.

RELATED STANDARDS

American Convention on Human Rights, Pact of San José, Costa Rica. Article 2. Domestic legal effects.

Where the exercise of any of 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.
American Convention on Human Rights, Pact of San José, Costa Rica. Article 5. Right to Humane Treatment

RELATED STANDARDS

American Convention on Human Rights, Pact of San José, Costa Rica. Article 5. Right to Humane Treatment

1. Every person has the right to have his physical, mental, and moral integrity respected. 2. No one shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment. All persons deprived of their liberty shall be treated with respect for the inherent dignity of the human person. 3. Punishment shall not be extended to any person other than the criminal. 4. Accused persons shall, save in exceptional circumstances, be segregated from convicted persons, and shall be subject to separate treatment appropriate to their status as unconvicted persons. 5. Minors while subject to criminal proceedings shall be separated from adults and brought before specialized tribunals, as speedily as possible, so that they may be treated in accordance with their status as minors. 6. Punishments consisting of deprivation of liberty shall have as an essential aim the reform and social readaptation of the prisoners.
American Convention on Human Rights, Pact of San José, Costa Rica. Article 8. Right to a Fair Trail.

RELATED STANDARDS

American Convention on Human Rights, Pact of San José, Costa Rica. Article 8. Right to a Fair Trail.

1. Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature made against him or for the determination of his rights and obligations of a civil, labor, fiscal, or any other nature. 2. Every person accused of a criminal offense has the right to be presumed innocent so long as his guilt has not been proven according to law. During the proceedings, every person is entitled, with full equality, to the following minimum guarantees: a. the right of the accused to be assisted without charge by a translator or interpreter, if he does not understand or does not speak the language of the tribunal or court; b. prior notification in detail to the accused of the charges against him; c. adequate time and means for the preparation of his defense; d. the right of the accused to defend himself personally or to be assisted by legal counsel of his own choosing, and to communicate freely and privately with his counsel; e. the inalienable right to be assisted by counsel provided by the state, paid or not as the domestic law provides, if the accused does not defend himself personally or engage his own counsel within the time period established by law; f. the right of the defense to examine witnesses present in the court and to obtain the appearance, as witnesses, of experts or other persons who may throw light on the facts; g. the right not to be compelled to be a witness against himself or to plead guilty; and h. the right to appeal the judgment to a higher court. 3. A confession of guilt by the accused shall be valid only if it is made without coercion of any kind. 4. An accused person acquitted by a nonappealable judgment shall not be subjected to a new trial for the same cause. 5. Criminal proceedings shall be public, except insofar as may be necessary to protect the interests of justice.
American Convention on Human Rights, Pact of San José, Costa Rica. Article 19. Rights of the Child.

RELATED STANDARDS

American Convention on Human Rights, Pact of San José, Costa Rica. Article 19. Rights of the Child.

Every minor child has the right to the measures of protection required by his condition as a minor on the part of his family, society, and the state.
American Convention on Human Rights, Pact of San José, Costa Rica. Article 25. Right to Judicial Protection.

RELATED STANDARDS

American Convention on Human Rights, Pact of San José, Costa Rica. Article 25. Right to Judicial Protection.

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 of the state concerned 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.

WHY IT MATTERS:

The Inter-American Court of Human Rights’ decisions are binding on states parties to the American Convention on Human Rights who have accepted the Court’s competence.
The matter of the Xákmok Kásek Indigenous Community is the third case regarding indigenous issues brought against the State of Paraguay before the Inter-American Court (Yakye Axa in 2005 and Sawhoyamaxa in 2006), making Paraguay the State that has been found responsible for the most violations of indigenous peoples’ rights.
This is an important decision for sexual and reproductive rights advocacy in the region, not only because of the Court’s refusal to rule on the violation of right to life of the unborn, but also because the Court developed case law regarding the right to safe maternity, reminding all States (not just Paraguay) that it is their obligation to establish special measures for the protection of pregnant women, especially poor women, in light of their special vulnerability. This case is a clear example of the intersectional nature of overlapping protected classes: gender, ethnicity, and socioeconomic status.
The Xákmok Kásek Indigenous Community and its members filed a complaint against the State of Paraguay because it was impossible for them to secure the return of their ancestral property. The fact that they have been unable to access the property and take possession of their territory, besides prejudicing the Community’s composition and means of support, has kept them in a vulnerable situation with regard to food, medicine and sanitation that has led to the death of pregnant women, girls, boys, and the elderly. In its analysis, the Court emphasized how poverty prevents people from exercising their rights, noting the special obligation on the State to create adequate healthcare policies for pregnant women in order to prevent maternal mortality.
The process of colonizing and the sale of large tracts of Paraguayan territory affected the Xákmok Kásek Community, which claims an area of 10,700 hectares, which forms part of its traditional territory, now located within a private property known as “Salazar Ranch.”
In 1990, the Community filed an administrative action to recover their traditional lands under the Paraguayan Constitution and internal laws. However, the proceedings stalled and did not achieve results in over 17 years. In 1999, Community leaders went to the Congress of the Republic to request the expropriation of the lands, but the bill was rejected. Finally, in 2008, part of the lands claimed were declared a protected nature reserve, which precluded any possibility of the return of the area to the Community. The Community, in response, filed an action on unconstitutionality, but these proceedings too were suspended. The matter was then brought before the Inter-American Commission on Human Rights, which referred the case to the Inter-American Court of Human Rights due to the failure of the State of Paraguay to resolve the matter.
The Commission asked the Court to find the State responsible for violations of the right to juridical personality, the right to life, including the right to a decent life, judicial guarantees, children’s rights, the right to private property, and the right to judicial protection, all in light of the obligation to respect rights and adopt domestic legal provisions, under the American Convention on Human Rights (ACHR).
The Court analyzed the scope of the right to communal ownership, taking into account the close relationship of indigenous communities with their traditional lands and natural resources, as well as the intangible elements resulting from them, which must be safeguarded.
Right to life. Article 4.1 of the American Convention on Human Rights
In its analysis of the right to life, the Court held that right to life includes the right to conditions that guarantee a decent existence. In this sense, the Community’s lack of land has resulted in a situation of extreme poverty in recent years, and domestic authorities knew of the existence of this situation of real and immediate risk to the life of the members of the Community. Consequently, this gave rise to certain State obligations of prevention that required it to take the necessary measures that could reasonably be expected, to prevent or avoid this risk.
The Court went on to assess the measures taken by the State to comply with its obligation to guarantee the right to life of the members of the Community, in two parts: 1) the right to a decent existence, and 2) the alleged international responsibility of the State for the deaths attributed to it.
In its assessment of the right to a decent existence, the Court reviewed several aspects, including access to water, diet, education, and health of the Community, all of which were very limited. The Court therefore declared the State responsible for these violations. In its assessment, the Court relied on General Comment No. 21 of the Committee on Economic, Social and Cultural Rights, noting that poverty restricts the ability of a person or a group of persons to take part in, gain access and contribute to, on equal terms, all spheres of cultural life, and more importantly, it seriously affects their hopes for the future and their ability to effectively enjoy their own culture.
Secondly, the representatives asked the Court to declare the State internationally responsible for the death of several members of the Community, including the death of two unborn children and of a pregnant woman who did not receive medical attention.
Regarding the two unborn children, the Court noted that the representatives and the Commission did not present arguments regarding the alleged violation of the right to life of the unborn. Given the absence of grounds, the Court declared that it lacked facts on which to form an opinion as to the State's responsibility in these cases.
However, in its analysis of the death of a pregnant woman, the Court acknowledged that her death revealed many of the inherent characteristics of maternal mortality, including death during labor without adequate medical care, a situation of exclusion or extreme poverty, lack of access to adequate health services, and a lack of documentation on cause of death, among others.
The Court underscored that extreme poverty and the lack of adequate medical care for pregnant women or women who have recently given birth result in high maternal mortality and morbidity. It cited the obligation of States to design appropriate health-care policies that permit assistance to be provided by personnel who are adequately trained to attend to births, policies to prevent maternal mortality with adequate pre-natal and post-partum care, and legal and administrative instruments for health-care policies that permit cases of maternal mortality to be adequately documented.
The Court found Paraguay responsible for violations of Articles 3 (Right to Juridical Personality), 4 (Right to Life), 5 (Right to Personal Integrity), 8.1 (Judicial Guarantees), 19 (Rights of the Child), 21 (Right to Property), and 25 (Judicial Protection) of the Convention, in relation to the obligations set forth in its Articles 1.1 (Obligation to Respect Rights) and 2 (Duty to Adopt Domestic Legal Provisions).
The Court ordered the State to implement a set of measures of reparations, including the return of the lands to the Community, compensation, a set of guarantees of non-repetition, and measures of satisfaction and rehabilitation.
One of the measures ordered by the Court was the obligation to provide “specialized medical care for pregnant women, both pre- and post-natal and during the first months of the baby’s life,” which must be complied with immediately.

Related decisions:

CEHURD v. Mulago National Referral Hospital 212 of 2013
Uganda , 24-01-2017

CEHURD v. Mulago National Referral Hospital 212 of 2013

High Court of Uganda at Kamapala

The Court finds a hospital’s negligence resulting in the disappearance of the couple’s baby resulted in psychological torture for the parents and violated their right to health and right to access to information.

See more »
B Vs. El Salvador
El Salvador, 29-05-2013

B Vs. El Salvador

Inter-American Court of Human Rights

The Inter-American Court of Human Rights adopted provisional measures with regard to El Salvador in the matter of “B” in May 2013. “B” was a 22-year-old woman suffering from serious health problems who was pregnant with an anencephalic fetus...

See more »
Ternovszky v. Hungary
Hungary, 02-02-2013

Ternovszky v. Hungary

European Court of Human Rights

At the time of introduction of the application the applicant was pregnant and intended to give birth at her home, rather than in a hospital or a birth home. However, in view of a Government Decree any health...
See more »

Cookies allow us to improve our services. By continuing to browse the site, you agree to our use of cookies. See more information.

Understood