I/A Court H.R., Case of the Moiwana Community v. Suriname. Preliminary Objections, Merits, Reparations and Costs. Judgment of June 15, 2005. Series C No. 124.

Non official brief

 This summary is also published in the website of the Council of Europe in the following link: https://www.venice.coe.int/files/Bulletin/B2006-1-e.pdf

 

Headnotes:

 

The Court is competent to declare violations of the American Convention with regard to actions or omissions that have taken place following the date of recognition of the Tribunal's jurisdiction and with respect to any situations that have not ceased to exist by that date.

 

The Court has the competence - based upon the American Convention and grounded in the iura novit curia principle - to study the possible violation of Convention provisions that have not been alleged in the pleadings submitted before it, in the understanding that the parties have had an opportunity to express their respective positions with regard to the relevant facts.

 

A long-standing absence of effective remedies is typically considered by the Court as a source of suffering and anguish for victims and their family members that compromises the rights enshrined in Article 5 ACHR.

 

Liberty of movement, embodied in Article 22 ACHR, is an indispensable condition for the free development of a person. The right to freedom of movement and residence consists, inter alia, in the following:

 

a. the right of all those lawfully within a State to move freely in that State, and to choose his or her place of residence; and

b. the right of a person to enter his or her country and the right to remain in one's country. In addition, the enjoyment of this right must not be made dependent on any particular purpose or reason for the person wanting to move or to stay in a place.

 

In the case of indigenous communities who have occupied their ancestral lands in accordance with customary practices - yet who lack real title to the property - mere possession of the land should suffice to obtain official recognition of their communal ownership. Indigenous communities hold unique and enduring ties that bind them to their ancestral territory. The relationship of an indigenous community with its land must be recognised and understood as the fundamental basis of its culture, spiritual life, integrity, and economic survival. For such peoples, their communal nexus with the ancestral territory is not merely a matter of possession and production, but rather consists in material and spiritual elements that must be fully integrated and enjoyed by the community, so that it may preserve its cultural legacy and pass it on to future generations.

 

A swift and exhaustive judicial investigation must be undertaken in a serious manner and not as a mere formality predestined to be ineffective. This effective search for the truth is the State's responsibility, and decidedly does not depend upon the initiative of victims and their family members or upon their submission of evidence. At a minimum, state authorities conducting an inquiry shall seek, inter alia:

 

a. to identify the victim;

b. to recover and preserve evidentiary material related to the death in order to aid in any potential prosecution of those responsible;

c. to identify possible witnesses and obtain statements from them concerning the death;

d. to determine the cause, manner, location and time of death, as well as any pattern or practice that may have brought about the death; and

e. to distinguish between natural death, accidental death, suicide and homicide.

 

Furthermore:

 

a. the crime scene must be exhaustively investigated and

b. autopsies, as well as analyses of skeletal remains, must be rigorously performed by competent professionals, employing the most appropriate procedures.

 

A prolonged delay constitutes per se a violation of judicial guarantees, which only exceptionally could be justified by the State.

 

Summary:

 

I. On 20 December 2002, the Inter-American Commission on Human Rights filed an application with the Court against the State of Suriname for the Court to decide whether the State violated the rights to judicial protection and fair trial, in relation to the general obligation to respect rights, embodied in Articles 8, 25 and 1.1 ACHR, to the detriment of certain former residents of Moiwana Village, settled by the N'djuka community. The Commission alleged there had not been an adequate investigation of the 29 November 1986 massacre of over 40 members of the Moiwana Village, where members of the armed forces razed the village to the ground, forcing the survivors into exile or internal displacement. The Commission alleged that, while the attack itself predated Suriname's ratification of the American Convention and its recognition of the Court's jurisdiction, the Court still had jurisdiction over the alleged denial of justice and displacement of the Moiwana community that occurred subsequent to the attack. According to the Commission no one had been prosecuted or punished for the facts and the survivors remained displaced from their lands.

 

II. In its Judgment of 15 June 2005, the Court, by way of iura novit curia, held that the State violated the rights to humane treatment, freedom of movement and residence and property embodied in Articles 5.1, 22 and 21 ACHR, respectively, and the rights to judicial guarantees and judicial protection enshrined in Articles 8.1 and 25 ACHR, all in relation to Article 1.1 ACHR (Obligation to Respect Rights) to the detriment of the Moiwana community members. The Court ordered the State to investigate effectively the facts in question, identify, prosecute and punish the responsible parties; recover the remains of the Moiwana community members killed during the 1986 attack and deliver them to the surviving community members; adopt such legislative, administrative and other measures as are necessary to ensure the property rights of the members of the Moiwana community in relation to the traditional territories from which they were expelled, and provide for their use and enjoyment of those territories; guarantee the safety of those community members who decide to return to Moiwana Village; establish a developmental fund; publicly recognise its international responsibility for the facts of the case and issue an apology to the Moiwana community; build a monument and place it in a suitable public location; pay moral and material damages to the victims, and pay costs and expenses.