Report No. 5 (2013) IACHR. Petition No. 273-05 (Argentina)

• Year: 2013
• Petition Number: 273-05
• Report Number: 5
• Alleged Victim: Comunidad indígena Nam Qom del pueblo QOM
• Court: Inter-American Comission of Human Rights
• Case Type: Admissibility
• Respondent State: Argentina

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REPORT No. 5/13 PETITION 273-05 ADMISSIBILITY NAM QOM INDIGENOUS COMMUNITY OF THE QOM (TOBA) PEOPLE ARGENTINA March 19, 2013

1. SUMMARY

1. On March 1, 2005, the Inter-American Commission on Human Rights (hereinafter "Inter-American Commission,” “Commission,” or "IACHR") received a complaint filed by the Nam Qom indigenous community of the Qom (Toba) people (hereinafter “Nam Qom indigenous community” or “community of Nam Qom”), represented by the Equipo Nacional de Pastoral Aborigen (ENDEPA) and the Centro de Estudios Legales y Sociales (CELS) (hereinafter "petitioners") against the Argentine State (hereinafter "Argentina" or "State") for the alleged violation of the human rights of the Nam Qom indigenous community and its members, as well as the rights of the attorney for the community, Roxana Silva (hereinafter “alleged victims”).

2. The petitioners allege that the members of the community of Nam Qom were victims of illegal and arbitrary detentions; torture and other cruel, inhuman, and degrading treatment; rape; failure to provide assistance; and breaking and entering of their homes without judicial order. These acts were allegedly carried out by police agents of the province of Formosa and of the Special Rural Affairs Unit (UEAR: Unidad Especial de Asuntos Rurales) during an operation carried out on August 16 and 17, 2002, which is said to have been characterized by special cruelty motivated by their ethnic identity. They argue that these events were not investigated by the judicial authorities, and that their attorney, Roxana Silva, was subjected to illegal intelligence activities by police officers. They argue that the facts alleged constitute a violation of Articles 5, 7, 8, 11, 19, 24, and 25 of the American Convention on Human Rights (hereinafter “the Convention” or “the American Convention”), in relation to Articles 1 and 2 of the same instrument. They also assert that the State is responsible for the violation of Articles 1, 6, and 8 of the Inter-American Convention to Prevent and Punish Torture (hereinafter “the Inter-American Convention against Torture”).

3. The State did not expressly controvert the factual and legal arguments presented by the petitioners, but rather referred to the measures said to have been adopted subsequent to the facts alleged, and to the situation of the community of Nam Qom.

4. Without prejudging on the merits, after analyzing the parties’ positions and in compliance with the requirements provided for at Articles 46 and 47 of the American Convention, the Commission decides to declare the petition admissible for the purposes of examining the alleged violation of rights enshrined in Articles 5, 7, 8, 11, 19, 24, and 25 of the American Convention in relation to Articles 1(1) and 2 of the same instrument; and of Articles 1, 6, and 8 of the Inter-American Convention to Prevent and Punish Torture. In addition, the IACHR decides to find the petition admissible as to the alleged violation of Article 7 of the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (hereinafter the “Convention of Belém do Pará”), to the detriment of L.L. and María Magdalena García, both members of the community of Nam Qom. The Commission decides to give notice of this decision to the parties, to publish it, and to include it in its Annual Report to the General Assembly of the Organization of American States.

2. PROCEEDINGS BEFORE THE COMMISSION

5. On March 1, 2005, the Commission received the petition and assigned it number 273-05. The IACHR received additional information from the petitioners by communication of December 19, 2005. On January 7, 2008, the IACHR forwarded the pertinent parts to the State, and asked that it submit its observations within two months. By note of March 13, 2008, the State of Argentina requested a one-month extension. The State’s response was received April 2, 2009; it was duly forwarded to the petitioners.

• Friendly Settlement

6. On April 2, 2009, the State expressed its willingness to pursue a friendly settlement. On April 30, 2009, the IACHR placed itself at the disposal of the parties with a view to reaching a friendly settlement. In a note received May 29, 2009, the petitioners expressed their agreement with this offer, and asked to define an agenda and a timetable for work to specify the points of the negotiation. On that occasion the petitioners also asked to be informed with respect to the position of the province of Formosa regarding the possibility of a friendly settlement, “in light of the division of functions stemming from the federal form of government, and in view of the indifference of the autonomous state, [the federal state] lacks specific instructions to go forward in concrete negotiations.”

7. In notes received on October 19, 2009, and September 28, 2010, the State reported that the National Government was in conversations with the authorities of the province of Formosa for the friendly settlement of the matter. On December 17, 2009, and on February 18, 2011, the petitioners communicated their decision not to continue with the process as they considered that the response of the State did not address their concern in relation to the position of the province of Formosa in the face of a possible friendly settlement process. On July 6, 2011, the IACHR asked the State to forward its observations on the admissibility of the petition; after it made two requests for extensions, the State did not subject any observations.

8. On October 25, 2011, a hearing was held, during the 143^rd regular period of sessions of the IACHR. On that occasion the parties once again took up the possibility of pursuing a friendly settlement and the petitioners indicated that they would consult the community on the minimum conditions for reaching an agreement. Neither the petitioners nor the State subsequently formally expressed willingness to so proceed.

3. POSITION OF THE PARTIES

1. Position of the petitioners

9. The petitioners allege that on August 16 and 17, 2002, a police operation – allegedly illegitimate, violent, and without judicial authorization – was carried out in the Nam Qom indigenous community of the Toba people, located in the province of Formosa, which was characterized by special cruelty towards the community. They add that the events were not investigated by the judicial authorities, and that the criminal case was definitely concluded on August 25, 2004.

10. The petitioners argue that the acts were carried out in a context of the alleged systematic violation of human rights by the different parts of the government in the State, to the detriment of the indigenous peoples and communities who live in Argentine territory. They also assert that these acts are part of a practice of police brutality, allegedly carried out by the State, and which has enjoyed impunity due to the inefficiency or complicity of the judicial branch. They state that these police practices are directed at the most socially, economically, and culturally vulnerable groups.

11. Next, the petitioners describe the Qom (Toba) people, and the community of Nam Qom. In summary, they report that the territory the Qom people occupied ancestrally was a vast zone of the Gran Chaco; they were organized in extended families, and their sustenance was based on hunting, fishing, and gathering. They provide information on the form of organization of the people and on the process of forced sedentarization to which they were subjected in the late 19^th century. With respect to Nam Qom, they indicate that it is a community that arose from the settlement of several indigenous families from the interior of the provinces of Formosa and Chaco on lot 68 of the province of Formosa, 12 kilometers from the city of Formosa. They report that in 1984 the province recognized the indigenous peoples’ right to exercise community property rights over the land (Law 426), and in 1995 lot 68 was transferred to the civil association (Asociación Civil) of the Nam Qom district. They assert that it is a peripheral urban neighborhood with a total area of approximately 20 square blocks, where some 3,000 persons live. They explain the community’s deficient living conditions, which include overcrowding, and a large percentage of dwellings without drinking water or electricity, among others. They report that by virtue...