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Judgement ratifying that public authorities and, in particular, SEDECA are obliged to comply with constitutional judgements and indigenous rights standards

Judgement Court of Entre Ríos

Entre Ríos, 2 December 2013

In view and in consideration of the following: the APG IG claim that there has been a breach of the terms of the Constitutional Judgement 2003/2010-R; with respect to the same and by way of background, the said Constitutional Judgement dated 25th October 2010 originated in a claim of constitutional relief submitted in the name of the Legal representative of SEDECA against the Assembly of the Guaraní People, represented by Mr Never Barrientos. At first instance in judgement 01/08, the legal protection sought [by SEDECA] was granted but this judgement was appealed to the Constitutional Court, which in turn, first, ruled that it refuses the relief sought [by SEDECA] and, second, it rules that its decision is made on the basis of applicable legal analysis and the recommendations of the Inter-American Commission on Human Rights and its Report on Captive Communities.

The Court EXHORTS the organs of Public Power and state institutions to comply with international and constitutional norms concerning indigenous peoples; and it should be borne in mind that in its legal analysis the Constitutional Court, in acknowledgement of the norms contained in the ILO Convention nš 169 and the United Nations Declaration on the Rights of Indigenous Peoples, has affirmed the right of prior consultation. Its rationale is based on the fact that these norms are of obligatory performance and that Art 13 para IV of the Political Constitution of the State provides with respect to conventions ratified by the State, that they are to be complied with and observed. Therefore the Court orders that the said obligations are equally binding on all the organs and institutions of the State. For this reason it will not grant a deadline or any other type of legal constraint to the petitioner to achieve compliance as it considers that these are norms of public order and obligatory performance, nor does it grant protection or special rights in favour of the defendants in this action, ordering simply performance of the relevant norms in the light of the recommendations made by the Inter-American Commission on Human Rights and its Report on Captive Communities.

And further, as Constitutional Judgements are of binding and obligatory character and given that the measures necessary for their performance should be adopted pursuant to art. 17 of Law nš 254, in exhorting all State organs and entities, the Court decides:

THEREFORE: Pursuant to the provisions of the aforementioned laws and in accordance with the decision of the Constitutional Judgement 2003/2010-R, the Court EXHORTS the organs of public power and state institutions to comply with the international and constitutional norms referring to the rights of indigenous peoples and in particular, it so exhorts the Director of the Department Road Service (SEDECA) of Tarija. In the event that it considers that a norm or right has been violated, a party who considers itself affected thereby may appeal this decision to the legally designated authority.

Likewise, for the purposes of this ruling, please record and notify the same to the public institutions and entities of O'Connor Province to ensure their compliance and observance of the said judgement, annexing a copy of the same.

Moreover: Let this be the decision.

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