Access to Public Information, National Security, Political Expression
Abdullah Al-Hadidi (U.A.E. Twitter Case)
United Arab Emirates
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The Inter-American Court of Human Rights declared the State of Suriname internationally responsible for the violation of the rights to the recognition of the juridical personality, to collective property, to political rights, to cultural identity of indigenous peoples, and to the obligation to adopt the necessary domestic legal provisions. In turn, the Court declared the violation of the right to judicial protection concerning the obligation to adopt domestic legal provisions as well as the right to free access to public records, all to the detriment of the Kaliña and Lokono peoples and their members. The members of eight communities of the indigenous peoples Kaliña and Lokono in Surinam were the victims of several violations of their rights due to the lack of a normative framework that recognized the juridical personality of the indigenous peoples, the lack of recognition of collective property of the land, territories and natural resources as well as the lack of a consultation process at the time granting the concessions and licenses to carry out mining operations. The Court ruled that the State had violated the right to judicial protection regarding the right to the free access to information of the members of the community given the failure to provide the information in the possession of Suriname’s public records which “placed these peoples at a disadvantage and in ignorance in relation to the third parties who alleged that they held title to part of the lands” [para. 267].
The Kaliña and Lokono peoples, know as the “Peoples of the Lower Marowijne”, are two of the four indigenous people with the largest population in Suriname. These peoples have a physical and spiritual bond with their territories and natural resources. Even prior to the independence of the State of Suriname, which was achieved on November 25, 1975, these peoples have taken steps to obtain recognition of their rights over their territories. This is due to the fact that the Surinamese legal system does not recognize the juridical personality of the indigenous peoples as a collective entity nor their right to property with respect to their ancestral territories. Particularly, prior to the independence, in 1972 various petitions were filed before the Independence Commission in which they denounced that classifying indigenous territory as State-owned lands was unjust. In addition to this, the Kaliña and Lokono peoples took part in different social protests, administrative petitions and judicial proceedings with respect to the territory claimed in this case, which were rejected citing lack of legal grounds.
At various times different natural reserves were created in the ancestral territory of the Kaliña and Lokono peoples without any consultation process aimed at obtaining their prior, free and informed consent. Also, prior to the independence of Suriname, mining concessions were granted for the extraction of bauxite in the eastern region of Suriname, which included one of the natural reserves. These activities not only generated a grave environmental impact that resulted in, among other consequences, the reduction of hunting and fishing, but also reduced the access of the indigenous peoples to the concession area. In addition to this, part of the territories of these peoples were subjected to a parceling project in which the State issued titles to non-indigenous third parties, which in turn forced the displacement of certain groups and indigenous peoples.
In the framework of the claims against the issuance of titles to non-indigenous third parties, on October 7, 2007, the leaders of eight communities of the Kaliña and Lokono Peoples, alongside with the Lower Marowijne Land Rights and the Association of Indigenous Peoples’ Leaders in Suriname requested the State to clarify and produce the relevant documents that prove whether certain non-indigenous persons possessed valid titles in the Village of Pierrekondre and, if so, to explain the nature and scope of those titles. They asked that this information be provided in writing and discussed with them as soon as it was available. However, the State of Suriname did not respond to this request. The same occurred with other petitions, letters, communications and complaints carried out by the Kaliña and Lokono Peoples between 2002 and 2013, which were either rejected or, for the most part, ignored by the State.
On February 16, 2007, representatives of the Kaliña and Lokono Peoples lodged a petition to the Inter-American Commission on Human Rights, who, on January 28, 2014 formally submitted the case to the Court’s jurisdiction.
In its decision, the Court reviewed whether the State’s failure to answer the request for information about the land titles issued to non-indigenous third parties constituted a violation of article 25 of the Convention in connection with article 13 of the Convention. The Court started its analysis by highlighting that the parties to the case had not alleged a violation of article 13 of the Convention. Nevertheless, by application of the principle iura novit curia, the Court deemed it pertinent to investigate a violation, considering that the parties had the opportunity to express “their respective positions in relation to the facts that substantiate such violations” [para. 259].
On the other hand, the Commission concluded in its Merits Report that the State, without any justification, refused to provide the victims information regarding the titles issued to non-indigenous persons with respect to ancestral territories of the Kaliña and Lokono Peoples. However, the Commission did not declare the violation of article 13 and decided to consider these facts in connection with the violation to the right to collective property recognized in Article 21 of the Convention. Incidentally, the State made no mention of the alleged violations during the merits stage of the case before the Commission whilst the representatives of the victims agreed with the Commissions’ affirmation that “Suriname had still not created legal or administrative mechanisms to restitute or to recognize the property rights of the indigenous peoples, or to delimit, demarcate and grant title to their ancestral territories” [para. 233].
In its analysis, the Court reiterated that the right to freedom of thought and expression includes not only the right and freedom to express one’s own thoughts, but also the right and freedom to “seek, receive and disseminate information and ideas of all kinds”. [para. 261] Hence, the Court reiterated that this provision protects “the right of everyone to request access to information in the hands of the State, with the exceptions permitted under the Convention’s regime of restrictions”. In the same manner, the Court reaffirmed the obligation of the State to either hand over the information requested, or in case of a refusal, to provide a justification that explains the reasons, as well as the norms on which the refusal to hand over the information is based. [para. 261]
The Court highlighted that it could not verify the existence of a law “that establishes and regulates access to information in Suriname”, however, it observed that article 22 of its Constitution permits anyone to present written petitions to the public authorities. Nevertheless, in this case the Court found that there was no response to the petition justifying its decision not to provide the documentation requested. In this regard, the Court reiterated that the failure to provide a response enables the State to decide in a discretionary or arbitrary manner which in turn, generates legal uncertainty in relation to the exercise of the right to free access to information. [para. 265]
The Court appreciated the importance of the information requested by the Kaliña and Lokono Peoples as it understood that it would have provided them precise facts on “how many individuals from outside their communities were in the area, and the legal situation of the land ownership”. Thus, the Court held that the information could have allowed them to obtain additional evidence when filing their claims in the domestic jurisdiction. Consequently, “the failure to hand over information in Suriname’s public records (…), placed these peoples at a disadvantage and in ignorance in relation to the third parties who alleged that they held title to part of the lands”, in turn failing to ensure their rights to access to information and to justice. Hence, the State is internationally responsible for the violation of the rights to judicial protection in connection with article 13 of the Convention due to the lack of adequate nor effective remedies to demand their right to access to information. [para. 267]
Partially dissenting opinion of judge Alberto Pérez Pérez
The dissenting opinion of judge Alberto Pérez Pérez focused on the operative paragraphs 1 to 3 of the decision as he understood that the rights to the recognition of the juridical personality, to the freedom of thought and expression and the political rights recognized on articles 3, 13 and 23 of the Convention, respectively.
Regarding the judgment of the majority on the violation of article 13 of the Convention, judge Pérez Pérez holds that the “request for information [addressed in the decision] is unrelated to ‘a matter of evident public interest,’ rather it refers to a matter of interest to the Kaliña and Lokono indigenous peoples in order to exercise their right to judicial protection (Article 25) in relation to their rights to collective property, participation and consultation”. To the contrary, in his opinion, the freedom of information recognized in Article 13 refers to information that is vital for effective democratic monitoring of the State’s functioning. In this regard, he concludes that in the present case there is no relation to the democratic oversight of the State’s management but instead of the exercise of the rights to collective property, participation and consultation, thus, in his opinion it was sufficient to declare the violation of article 25 about the right to judicial protection [p. 5].
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
In this decision the Inter-American Court of Human Rights adequately appreciated the impact of the absence of a response to the request of information by the Kaliña and Lokono Peoples regarding their exercise of their right to judicial protection. Likewise, the decision not only highlights the obligation to hand over the information requested but also, that the State has the obligation to give a justified response in case that the refusal of the request was necessary based on a legitimate restriction permitted by the Convention. The Court’s ruling on this case in relation to the recognition of the violation of article 13 differs to other cases related to indigenous communities and the access to information. Previously, on the case Kichwa Indigenous People of Sarayaku v. Ecuador, the Court did not declare the violation of article 13 as in this case the Court held that the facts had already been sufficiently analyzed and the violations conceptualized under the rights to communal property, consultation and cultural identity. Additionally in the case of the Indigenous Communities of the Lhaka Honhat (Our Land) v. Argentina, decided subsequent to the present case, the Court arrived to the same conclusion considering that it did not have sufficient specific evidence to determine whether there was a violation of the right to information recognized in article 13 in addition to the violation of the right to participation. All the same, in the present decision, the Court specifically recognizes the protection to the right to access information of the Kaliña and Lokono Peoples in pursuance of article 13 of the Convention.
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