legal science has been imposed through different devices, including criminal law, secular sword of our modern Leviathan, a "dogma" outside the historical and structural circumstances of indigenous peoples.
In America, indigenous peoples, existing for the different processes of formation of national states have long been victims of the major human rights abuses, from genocide to political exclusion and social and economic discrimination.
E n this sense, the neglect of the criminal status of indigenous "leads to imposition of discriminatory and arbitrary and drastic particular behavior patterns to ethnic, culturally diverse, possessing behavioral patterns and a variety of axiological supported by the legislature and the law that mattered ". [1]
Thus, we propose to give a brief overview of the importance of respecting the guarantee of ne bis in idem in cases which has been applied to the right of an indigenous community determind.
is in response to the situation mentioned above
The issue at hand, the Convention 169 incorporates three essential items, articles 8, 9 and 10 [2] that " according to the most widespread interpretations, grants indigenous peoples the right to administer justice according to their own guidelines to Once it attaches to the States the obligation to respect its own decisions (in any subject), generating a joint on justice that discussion remains stone within States. It also expressly states that preference should be given the types of punishment other than imprisonment (10.2). " [3]
Cobra particular relevance in this review then, the problematic product of "double jeopardy" in cases that despite existing resolutions of indigenous leaders in conflicts arising between Indians in the community, again subjected to criminal proceedings to the same people, for the same acts, this may not be necessary on the grounds that the conflict has been resolved within it.
Thus, this guarantee means avoiding double jeopardy, it is extremely important, because it can overcome the legal uncertainty that leads to the fact of not knowing whether the conflict will end permanently or, in any case remains "open" to other decision-making body, understood in many cases as unnecessary and others just as overwhelming rights and cultural identity of peoples.
To exemplify how this procedural institution developed in a first step towards other purposes or other cases, it is adapted in order to provide new solutions to situations that would not have been contemplated previously, we consider pertinent to add a brief comment regarding the interpretation has made the District Court Criminal, Drug Trafficking and Environmental Crimes Totonicapán Department of Guatemala about the warranty.
E.312.2003 Of Record. 6th., Judgement of June 25, 2003 [4]
Summary of facts: It is a criminal investigation for aggravated robbery, involving three members of an indigenous community.
The judge orders the dismissal of the three defendants, having been shown that the crime was tried by the authorities of the indigenous community, which has imposed a penalty on those responsible. The judge stated that recognition of the legal validity of the penalty imposed by the community is apparent inability to implement new criminal penalties on those responsible, it would mean violating the principle of ne bis in idem.
Law applied: Constitution of Guatemala, Articles 46, 58 and 66, Convention No.. ILO 169,
relevant considerations of the Court: transcribe a few paragraphs below we understand very interesting to note:
"... An analysis of Articles 46, 58 and 66 of the Constitution
By analyzing these articles should be clear obligation acquired by the State to recognize the rights and the existence of "peoples" or indigenous communities in its legal structure. All articles are going further to establish that the state promotes such forms of life and social organization as well as custom suit and language.
(...) When analyzing the document dated June Twenty two thousand three, signed by the Community authorities Chiyax of this county and department, it is concluded through the penalty described her , which does not contravene international law provisions on Human Rights or the Constitution
Based on these ends and the findings of fact and law previously enunciated which when analyzed together with the principles of non-intervention or minimal intervention from the Criminal Law, which states in essence that it must intervene in Ultima Ratio, ie, when all other legal avenues had failed, which is not true in this case because there was a legal and effective application of indigenous law in the resolution of this conflict, and when concatenated with the principle of non bis in idem principle, which essentially provides that a person can not be tried (twice) for the same act, and that also implemented an endorsement or contained in the Criminal Code would be contrary to the guiding principle, and unable to issue a final decision either conviction or acquittal in his case, it is relevant to this impossibility of judging and being an objective causal origin of the penal dismissal from results reported in these proceedings for lack of legitimacy in the exercise of criminal action by the public Tax Entity monopoly absence of action, since it was taken over entirely by the Community authorities Chiyax community and its Indigenous rights application (...)".
is clear from the above that s and is a case of recognizing the legal validity of a sanction imposed by the Community authorities the case of a crime, and consequent dismissal of criminal proceedings, by application of the principle ne bis in idem and in accordance with the other constitutional guarantees in the case cited.
Finally, we express our regret having to discuss a resolution of a Guatemalan court after failing to find a similar resolution in our country. hope that this is solely due to not having the means to do so in the short term, hoping to find as discussed above, we promise more investigation.
Romano Antonella Arias
Daniela Romina Dibilio
[1] "Abolitionism AND THE ROLE OF INDIGENOUS COMMUNITIES. " Sánchez Romero, Houed Vega, Chirino Sánchez .- Teachers
[2]
Article 8 1 . When implementing national legislation to the peoples concerned shall take due account of their customs or customary laws.
2. These peoples shall have the right to retain their own customs and institutions, provided that these are not incompatible with fundamental rights defined by the legal system with national or internationally recognized human rights. Whenever necessary, procedures should be established to resolve conflicts that may arise in the application of this principle.
3. The application of paragraphs 1 and 2 of this Article shall not prevent members of these peoples from exercising the rights granted to all citizens and from assuming the corresponding duties.
Article 9 1. To the extent that it is compatible with the national legal system and internationally recognized human rights, methods shall be respected by the peoples concerned for the punishment of crimes committed by their members.
2. The authorities and courts to rule on criminal matters should take into account the customs of indigenous peoples in the area.
Article 10 1. In imposing penalties laid down by general law on members of these peoples should take into account their economic, social and cultural rights.
2. Must preference given to methods of punishment other than imprisonment.
[3] RIGHTS OF INDIGENOUS PEOPLES AND CRIMINAL PROCEDURE REFORM -Cases of Chile and Guatemala-
[4] The application of Convention No. 169 by international and national courts in Latin America-A Compilation case. ( PROGRAM TO PROMOTE THE CONVENTION NO. 169 OF THE ILO
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