No interdictal protection for non-indigenous person on indigenous landImposibilidad de tutela interdictal para no indígena en territorio indígena

VOTO N° 648-F-18 AGRARIAN TRIBUNAL. SECOND JUDICIAL CIRCUIT OF SAN JOSÉ.- At sixteen hours and forty-five minutes on the thirteenth of July, two thousand eighteen.- INTERDICTAL PROCEEDING filed by [Nombre1], of legal age, widower, farmer, resident of Cabagra de Brunka de Buenos Aires de Puntarenas, identity card number CED1 - - ; against [Nombre2], identity card number CED2 - - ; [Nombre3], identity card number CED3 - - ; [Nombre4], identity card number CED4 - - ; [Nombre5], identity card number CED5 - - ; [Nombre6], identity card number CED6 - - ; [Nombre7], identity card number CED7 - - ; [Nombre8], identity card number CED8 - - ; [Nombre9], identity card number CED9 - - ; [Nombre10], identity card number CED10 - - ; [Nombre11], identity card number CED11 - - ; [Nombre12], identity card number CED12 - - ; [Nombre13], identity card number CED13 - - ; [Nombre14], identity card number CED14 - - ; [Nombre15]; identity card number CED15 - - ; [Nombre16], identity card number CED16 - - ; [Nombre17], identity card number CED17 - - ; [Nombre18], identity card number CED18 - - ; [Nombre19], identity card number CED19 - - ; [Nombre20], identity card number CED20 - - ; [Nombre21], identity card number CED21 - - ; [Nombre22], identity card number CED22 - - ; and against [Nombre23], identity card number CED23 - - . The Asociación de Desarrollo Integral de Reserva Indigena de San Rafael de Caragra de Buenos Aires, legal entity number CED24 - - , represented by its president [Nombre24], of legal age, educator, resident of Buenos Aires, identity card number CED25 - - , intervenes in the proceeding. Acting in the proceeding as special judicial representative of the plaintiff is licensed attorney Thais Vidal Navarro, of legal age, single, attorney, resident of Puntarenas, identity card number CED26 - - ; and as directing attorneys: for the defendants, attorney Ricardo Araya Piedra, bar association number eighteen thousand nine hundred eighteen, and for the Association, attorney Hugo Lazaro Estrada, card number twenty thousand seven hundred eighty-six. Processed before the Agrarian Court of Buenos Aires.- R E S U L T A N D O:

1.- The plaintiff filed an interdictal proceeding, valued at the sum of five million five hundred thousand colones, so that in the judgment it be declared: \"...1.- The interdict of Agrarian Protection of Possession (Amparo de Posesión Agraria) is upheld and the defendants are ordered to refrain from disturbing the possession of the undersigned, to withdraw from the boundary line, to threaten, to conduct burnings, to cut fences, to approach the boundary line, or to enter in any way onto the property of the undersigned. Likewise, not to attack, threaten, or intimidate the plaintiff, his laborers, and witnesses in this proceeding under warning that failure to comply will result in being tried for the crime of disobedience to authority. 2.- That they be ordered to pay the damages and losses caused, as well as the costs of this action,\" (folios 45 to 55).- 2.- The defendants were duly notified of the claim filed against them, and within the legal term, they responded negatively to this action, opposing the exceptions of lack of standing of the plaintiff and lack of right, (folios 97 to 101).- 3.- Judge Jean [Nombre25] Céspedes Mora, of the Agrarian Court of Buenos Aires, through judgment number 01-2017 at fourteen hours and fifty-seven minutes on the eleventh of January, two thousand seventeen, resolved: “POR TANTO: In accordance with the foregoing, facts deemed proven, analysis set forth, cited legal and jurisprudential references, the exception of lack of right filed by the defendants is upheld. Consequently, the present interdictal claim for protection of possession (amparo de posesión) filed by [Nombre1] against [Nombre2] and others is DECLARED WITHOUT MERIT IN ALL ITS ASPECTS. A ruling on the defense of lack of standing is omitted as unnecessary. The losing party is exempted from the payment of costs,\" (See Virtual Desk of the Agrarian Court of Buenos Aires, in Associated Documents, file dated 1/11/17 at 14:57:00 p.m.).- 4.- Licensed attorney Thais Vidal Navarro, special judicial representative of the plaintiff [Nombre1], filed an appeal with an express indication of the reasons on which she relied to refute the thesis of the lower court, (See Virtual Desk of the Agrarian Court of Buenos Aires, in the Filing Tray, file dated 2/3/17 at 8:20:34 a.m., images 3 to 12).- 5.- In the processing of the proceeding, the legal requirements have been observed, and there are no errors or omissions capable of causing the nullity of the judgment.- Drafted by Judge Alvarado Paniagua, and;

CONSIDERANDO:

I.- The plaintiff, along with the appeal, provides a document titled \"Documento de reconocimiento indígena\", where it indicates that Mr. [Nombre1] is a Bribrí indigenous person. This is not admissible at this procedural stage. When the defendants answered the claim at folio 97, they indicated that they have rights over the area in conflict and not the plaintiff, given that they are Bribrí indigenous persons and their action is under the protection of recovering lands from the hands of those who are not indigenous, and they affirm that the plaintiff is a recognized merchant of indigenous lands, who acquired after the legal declaration as an indigenous territory. (See folio 98).- Regarding this controversy raised in the answer to the claim, the lower court granted a three-day hearing to the plaintiff to address it (see resolution at folio 134), without Mr. [Nombre1] presenting any counter-evidence. It was at this procedural moment that the opportunity existed to provide and demonstrate his status as an indigenous [Nombre26] if that were the case, but he did not do so, nor did he even respond to that hearing. Accepting the document offered here in the second instance would be to remedy the omission of providing evidence in this sense at the corresponding procedural moment. Doing so would create an imbalance between the parties, since evidence presented for the court's better judgment (prueba para mejor resolver) is not intended to remedy evidence that was not offered in due time, it being the responsibility of the party and his attorney to present it at the appropriate procedural stage, which he did not do. Based on the foregoing, said evidence is not admitted, in accordance with articles 517 paragraph 7, 522, and 536 of the Labor Code, amended by the new Labor Procedural Law, applicable supplementarily to agrarian matters by provision of article 26 of the Law of Agrarian Jurisdiction.- II.- This Tribunal shares the relation of facts deemed proven in the appealed judgment, as it is a faithful reflection of what occurred in the case record.- III.- For the decision of this matter, the following fact is deemed unproven: The plaintiff [Nombre1] did not prove that he is an indigenous person belonging to the Bribrí ethnic group. There is no suitable and timely evidence in this regard.- IV.- The special judicial representative of the plaintiff appeals the judgment of fourteen hours fifty-seven minutes on the eleventh of January, two thousand seventeen, arguing the following: FIRST: She does not share what is stated in the appealed judgment regarding the assertion that the protection of the indigenous territory prevails and that interdictal protection as a judicial action is insufficient in the face of these conflicts, since the collectivity of the land and its communal character prevail. She considers the lower court omits that despite the cited norm, Convention number 169 of the ILO itself safeguards the rights that human beings have independent of their ethnicity, color, or race. It strips the plaintiff of his status as an indigenous person and as a human being to solely indicate that those who have rights are the indigenous defendants, thus incurring a judgment contradictory to the Human Rights recognized and ratified by Costa Rica in the sense that restricting that right based solely on his ethnicity is an action that incurs discrimination, especially when indicating that the plaintiff does not belong to the [Nombre26] ethnic group and therefore cannot hold rights. She argues that the judgment cannot be based on a judgment of the Inter-American Court in the case of the Mayagna (Sumu) Awas Tigni community vs. Nicaragua, since that ethnic group has been located in Nicaragua since 2000 BC, and it is different from the specific case of the southern zone where Bribris and Cabecares arrived from Talamanca, and Teribes from Panama, through migration, given that the only original inhabitants are the Borucas, where a mixed coexistence exists, and the State intends to enact segregation by ethnicity, without considering that families are intermixed among different ethnic groups. She considers that in the assessment of this proceeding, the foregoing is omitted, and a harsh segregation by ethnicity is carried out, incurring a discriminatory judgment against anyone who is not Bribri, failing the same Political Constitution, the American Convention against All Forms of Discrimination, and Convention 169. The customs of each people must be taken into account when resolving, and any person who knows about the different cultures, customs, and traditions can realize that for many years in all the territories of the southern zone, lands are not shared collectively; on the contrary, they are individual, all fenced, and respect for their crops, products, and goods prevails, until this group initiated what they call land recoveries, and if the lower court had doubts, it should have had an anthropological expert report (peritaje antropológico) as a novel figure in Costa Rica. SECOND: She considers the spirit of the interdict is set aside, since the facts of disturbance by the defendants were accredited, but the lower court indicates that because it is an indigenous territory it does not merit protection and resolves by analyzing property aspects that are not discussed within a proceeding such as the present one, since what is sought is to protect the current and momentary possession, an aspect demonstrated and recognized by the same judge, but indicating that only the defendants have a right to said lands based on the lower court's own assumption regarding the plaintiff's indigenous status. She indicates it uses national and international legislation as a foundation in a biased manner in favor of the defendants, setting aside what is established in Convention 169 itself in its article 4, paragraph 3, as well as the last paragraph of article 8, which clearly indicates that indigenous people have rights but must assume the corresponding obligations, like any citizen, especially since the indigenous territories are part of Costa Rica. She considers this judgment to be serious due to the abuse by this minority indigenous group who decided to carry out disturbances and invasions, killing of animals, burnings, and destruction on the properties that for one reason or another they wish to take by force. With the challenged judgment, the victims possessors of those lands are left in a complete state of defenselessness and the doors are opened for all the acts of violence and abuse by these small groups to continue, therefore the judgment is contrary to national and international law. THIRD: She argues that from the claim, Mr. [Nombre1] clearly indicates that he is indigenous; in the defendants' answer, they themselves accept that the plaintiff is indigenous; during the presentation of evidence, witnesses were consulted and they indicated the plaintiff is indigenous. She argues that whether or not the plaintiff was indigenous was not a contested fact, as even the co-defendants themselves accepted him as indigenous (see answer brief). If the lower court had doubts, it should have requested evidence in this sense, since the plaintiff is of Bribrí descent through his father and grandfather, and therefore he has his rights as an indigenous person within this territory. FOURTH: In the challenged judgment, aspects of property rights are resolved as if it were an ordinary proceeding (proceso ordinario), but the international legislation ratified by Costa Rica in this sense is not taken into account, and that is that even if it involves indigenous territory, it is governed by the same laws of Costa Rica, given that in our country, since 1949, respect for private property has been regulated in article 45 of the Constitution and article 21 of the American Convention on Human Rights, which states: No person may be deprived of his property, except through the payment of just compensation, for reasons of public utility or social interest. She indicates in the same sense, article 17 of the Universal Declaration of Human Rights regulates the right of every person to property individually and collectively, and no one may be arbitrarily deprived of his property. The lower court should also have evaluated this regulation and not resolved only with what serves the defendants, leaving the plaintiff's agrarian activity and possession in a state of defenselessness. FIFTH: In this section, the appellant makes statements regarding the requirements that judgments must meet, such as that they must be congruent, maintaining a correlation between what was requested and what was resolved, resolving all points submitted to debate, carrying out an evaluation of the evidence according to the rules of sound rational criticism (sana crítica racional), analyzing the evidence received and reasoning the foundations of its judgment. She argues that the lack of congruence causes her great defenselessness. SIXTH: She alleges violation of law due to lack of application of article 317 of the Code of Civil Procedure, since she has met the burden of proof to demonstrate that the plaintiff has been the indigenous possessor owner of the property that suffered disturbances by the defendants. By way of conclusion, the appellant indicates that the lower court should have taken into account the entirety of the evidence in the case record, not just what benefited the defendant party, and by not doing so, the error was committed of declaring this claim without merit, incurring the defect of not resolving each and every one of the points that were the subject of debate, issuing an incongruent judgment with the true claims of the proceeding, and violating the procedural and substantive law cited. (Cf: appeal brief in virtual desk 2/3/17 8:20:34 am).

V.- The interdictal proceeding for protection of possession (amparo de posesión) and restitution has as its object the protection of possession when it is disturbed or stripped. It is an action for the protection of possession over real property that may be legally possessed, in this specific case over a land declared as an indigenous territory. This type of property has special characteristics that make its legal nature different from the rest, and the special laws that regulate them are applicable. Specifically, article 3 of the Ley Indígena reads: \"The indigenous reserves (reservas indígenas) are inalienable and imprescriptible, non-transferable, and exclusive for the indigenous communities that inhabit them. Non-indigenous persons may not rent, lease, buy, or in any other way acquire lands or farms comprised within these reserves. Indigenous persons may only negotiate their lands with other indigenous persons. Any transfer or negotiation of lands or improvements thereon in the indigenous reserves, between indigenous and non-indigenous persons, is absolutely null, with the legal consequences of the case. The lands and their improvements and the products of the indigenous reserves shall be exempt from all kinds of national or municipal taxes, present or future\". This norm is clear in indicating that lands comprised within indigenous territories are for the exclusive use of the members of the indigenous community in question; that is, a person who is not a member cannot claim protection for their occupation, since their permanence within said territory cannot generate any right for them, much less protection through one of the actions protecting the right of possession, given that it is not feasible for an indigenous territory to be occupied by someone outside that community. The maximum an occupier in these conditions can aspire to is to be compensated through expropriation in the event of having acquired the property prior to the creation of the indigenous territory. This national legislation is consistent with the provisions of Convention 169 of the International Labour Organization (I.L.O) on Indigenous and Tribal Peoples in its Part II, Land, articles 13 to 19, and the United Nations Declaration on the Rights of Indigenous Peoples, in its articles 25 to 28, regarding the special protection of their territories and their exclusive use by the members of their own indigenous community. In the case of the plaintiff, he did not prove he is an indigenous member of the ethnic group to which that territory belongs, and the burden of proof in this sense fell upon him, in accordance with article 317 of the Code of Civil Procedure, applicable supplementarily to agrarian matters. In her first grievance, the appellant indicates that discrimination by ethnicity is committed by resolving this matter, as the plaintiff is stripped of his status as an indigenous person and as a human being to indicate that the only ones who have rights are the indigenous defendants, therefore incurring a judgment contradictory to Human Rights, since it violates other legal instruments such as the American Convention against All Forms of Discrimination. She argues that his right to individual property and his work carried out on the land in question is disregarded, as the custom of the place is that the current form of land tenure is individual, with each person having their own crops and fences, since they are no longer shared collectively. This differentiated treatment to recognize an indigenous territory and distinguish it from other forms of property rights is not discriminatory as the appellant claims, since there can be no inequality when policies or measures aimed at eliminating it are taken, a systematic and historical inequality regarding vulnerable groups such as indigenous peoples. \"Indigenous peoples have been discriminated against for centuries. In other words, the men, women, boys, and girls of indigenous peoples have been treated as 'inferior peoples', without rights. This occurs because the color of their skin, their languages, their customs, and their ways of working are less valued than those of other peoples.\" (IIDH. Inter-American Institute of Human Rights. Educational Campaign on Human Rights and Indigenous Rights. San José, 2003, page 19).- Any affirmative action aimed at eliminating this inequality gap is not discriminatory towards those who are not covered by the positive action (special indigenous legislation), since they are not part of that discriminated group and therefore do not require actions to be equal in rights compared to the rest of society. This is known as positive discrimination, which is the term given to an action that aims to establish policies that give a certain social, ethnic, or minority group, or one that has historically suffered discrimination due to social injustices, preferential treatment in the access to or distribution of certain resources or services, as well as access to certain goods. The objective is to improve the quality of life of disadvantaged groups and compensate them for the harms or discrimination of which they have been victims. The term affirmative action, in this system, refers to those actions (legal, administrative, or practical measures) aimed at reducing or, ideally, eliminating discriminatory practices against historically excluded sectors such as indigenous peoples, an issue that today is a matter of special treatment when balancing the exercise of the collective rights of indigenous peoples and individual rights. Therefore, applying this indigenous legislation does not violate the American Convention against All Forms of Discrimination, Convention 169 of the ILO itself, or our Political Constitution regarding private and individual property regulated in article 45, since an indigenous property right is established and recognized, which is governed by special provisions that make its nature different from the common right of property and possession, such as to recognize the plaintiff's occupation as a possession right, on a land where the plaintiff knew beforehand the special conditions that governed it because it was within indigenous territory. This was recognized by the plaintiff in the purchase-sale document signed on July 23, 2013 (folio 39), where he expressly indicates that he knows that the property is located in the Cabagra Indigenous Territory, and likewise recognized the scope of the Ley Indígena that governs it. The plaintiff enters to occupy the land in question, with full knowledge of the special provisions in the Ley Indígena, that is, the same ones that provide the foundation for this judgment indicated supra. The appellant's grievance indicating that the custom of the area should be followed, and therefore individual property should be recognized, since everyone respects the crops and fences of others, and it has ceased to be collective, is not admissible. That it is customary to violate the indigenous territory, with each person (non-indigenous) having individual property, does not mean the right of that ethnic group has been extinguished, since as already said when citing article 3 of the Ley Indígena, the right to this type of property is imprescriptible and inalienable. As a SECOND grievance, the appellant states that the spirit of the agrarian interdict has been set aside, since she was able to prove the facts claimed regarding the disturbance of possession, and the victim possessors of those lands are left in a state of defenselessness, and the doors are opened for acts of violence and abuse by the small group to continue, who must comply with the corresponding obligations in Convention 169 itself in its article 4, paragraph 3, and article 8, like any Costa Rican citizen, especially since indigenous territories are part of Costa Rica. As stated supra, the plaintiff's occupation cannot be protected as possession through the interdictal route, given that it occurs on a land where it is expressly prohibited for him to use it since he does not belong to the indigenous community (he did not prove he belongs to that ethnic group). In this sense, author Picado Vargas ([Nombre25]) and Artavia Barrantes ([Nombre27]), in their work Los Interdictos, 2nd Ed, Editorial Jurídica Faro, San José, 2017, page 77, state: \"It is established, in article 6 of the Ley Indígena, the exclusivity in the possession of indigenous persons, individually or collectively, over the lands encompassed in the reserves created for these purposes. This possession is of an agrarian type, since the cited norm expressly indicates that 'only indigenous persons may build houses, cut trees, exploit timber resources, or plant crops for their direct benefit within the limits of the reserves'. This norm modifies the assumptions of interdictal protection. Although the rule in the interdict is not to enter into details of matters of registered ownership, due to the special nature of the Ley Indígena, the fact that an interdictal conflict occurs in one of these reserves will directly influence the active and passive standing (legitimación activa y pasiva) of the specific case, since the possession that a non-indigenous individual claims to have in a legally reserved and restricted area could not be protected. ...Therefore, in the opinion of this sector, a non-indigenous person would not have standing for interdictal protection in indigenous reserves because their possession is expressly prohibited by law, since the special possessory protection is also intended for the ancestral condition of our aborigines.\"- Based on the foregoing, the plaintiff did not prove he met the conditions of active standing, since it was not enough to simply exercise an occupation, but rather to demonstrate that he was part of the ethnic group to which the indigenous territory already declared as such belongs. The appellant indicates that this ethnic group is not originally from the place, as they are migrants from Talamanca, and therefore the case resolved in the Inter-American Court of Human Rights is not applicable, since the Mayagna (Sumo) Awas Tigni community of Nicaragua has occupied the same territory since 2000 BC, unlike the Bribris in that sector. Regardless of the anthropological history of this ethnic group, the truth is that it has been declared as an indigenous territory and its nature as such has not been diminished, so it must be respected. Nor does the fact that families have intermixed as ethnic groups denaturalize the condition of an indigenous territory already declared by Law, since what matters for the resolution of this matter is that the plaintiff's occupation within indigenous territory is not protectable, as that territory is for the exclusive use of the members of that ethnic community.

VI.- As a THIRD grievance, the plaintiff states that the most important point in the lower court's opinion is to determine that the plaintiff is not an indigenous person. However, the plaintiff does meet this condition since he is an indigenous [Nombre26] with ancestry from his father and grandfather, and therefore he has rights as an indigenous person within that territory. He argues that it was demonstrated in the claim that the plaintiff is indigenous, and in the defendants' answer they accept this condition. The claim is reviewed, and in the description of the plaintiff's qualities, it is indicated that he is indigenous, with that being the only part of his claim where he says so, self-identifying as such without evidentiary support. In the statement of facts of the claim, he makes no mention of it, so the defendants, in answering each fact, make no reference to any acceptance of the plaintiff's indigenous status, as the appellant indicates. Quite the contrary, in the answer visible at folio 97, they indicate that it is they, as indigenous persons, who have the right to that territory since they are of the [Nombre26] ethnic group of the Durwak clan, and they refer to the plaintiff as a recognized merchant of indigenous lands. Regarding this answer to the claim, the plaintiff was granted a hearing for a period of three days to address it and provide counter-evidence, and he did not do so, since said hearing was not answered, and therefore the contested point regarding the plaintiff's status of not belonging to that indigenous community was not timely objected to. The burden of proof in this sense fell on the plaintiff, and he did not do so in accordance with article 317 of the Code of Civil Procedure, applicable supplementarily. It did not correspond to the lower court to order evidence in this sense as the appellant claims, since it is a procedural activity of the party. That omission cannot be remedied by presenting a document of indigenous recognition (documento de reconocimiento indígena) in this instance, when he should have demonstrated it from the initial stage and did not. Nor is it observed in the testimonies offered by the plaintiff, namely [Nombre28] at folio 151, [Nombre29] at folio 152, and [Nombre30] at folio 153, that they stated the plaintiff is an indigenous [Nombre26] belonging to that Indigenous Community. There is no reference to that topic in their statements, so the appellant's grievance indicating to this Tribunal that the plaintiff's indigenous status is demonstrated by the testimonial evidence received in the record is unfounded. As a FOURTH grievance, she indicates that the same Organic Law of the Judicial Branch establishes that the official administering justice may not apply laws or other norms that are contrary to the political constitution or to the international or community law in force in the country, but in the challenged judgment, aspects of property are resolved as if it were an ordinary proceeding (proceso ordinario), and she considers that even if it is an indigenous territory, it is governed by the laws of Costa Rica, and article 45 of the Political Constitution, which protects private property, must be respected, as well as the American Convention on Human Rights in its article 21 which indicates that no person may be deprived of his property except through the payment of just compensation for reasons of public utility or social interest. As well as the Universal Declaration of Human Rights, which in its article 17 indicates that everyone has the right to property individually and collectively, and no one may be arbitrarily deprived of his property, legislation that the lower court should not have set aside, resolving only what serves the defendants, leaving the plaintiff's agrarian activity and possession in a state of defenselessness. This Tribunal does not share the grievance expressed by the appellant when indicating that even if it involves indigenous territory, article 45 of the Constitution on the right to private property must be applicable. It was already explained at the beginning of the considerative part that the right of property, when dealing with indigenous communities, has special characteristics that differ from the common right of property.

That those special characteristics respond to positive discrimination policies aimed at achieving a more equitable society, contributing to the development of those indigenous peoples who have been historically dispossessed and marginalized, given that they are a social group in conditions of vulnerability. Hence, national and international legislation is enacted to eliminate that inequality gap, being special legislation that prevails over general legislation. In this case, general legislation is the private property enshrined in the Magna Carta and International Instruments, but by special laws of public order, indigenous property is created with characteristics of inalienability and imprescriptibility, being unavailable to non-indigenous third parties outside the community, its application as special regulations being subject to mandatory compliance. If the plaintiff considers that compensation must be provided through fair payment, that procedure is not proper to this type of proceeding, whose nature is summary. Regardless of the underlying right regarding possession and/or property, which is certainly subject to more thorough analysis in an ordinary proceeding, what was relevant for the resolution of this interdict is the matter of the plaintiff's active legal standing, who, by occupying land where there is a prohibition against doing so, does not become a creditor of interdictal protection, and in this sense the lower court ruled, without it being relevant to analyze the passive legal standing. As a FIFTH grievance, the appellant makes theoretical statements about the requirements that judgments must fulfill, such as that they must be consistent, maintaining correlation between what was requested and what was resolved, resolve all points submitted for debate, with an assessment of the evidence carried out according to sound critical reasoning, analyzing the evidence received and reasoning the grounds for its decision. She alleges that the inconsistency produces great defenselessness. However, the appealing party makes no specific reference to the grounds on which she considers these situations arise, does not point out which parts of the judgment contain such flaws, or which specific points were left unresolved. As this grievance consists of a theoretical statement, it is impossible to analyze the aspects to which it refers, since she does not specify. The SIXTH grievance refers to the violation of Article 317 of the Code of Civil Procedure, considering that she has fulfilled the burden of proof by demonstrating that the plaintiff was the possessor who was disturbed by the defendants, as demonstrated by the testimonial evidence. That rule has not been violated, as it is considered that it was not applied by the plaintiff by omitting to demonstrate that he held a right within indigenous territory, since his condition, which he claims to have, was not demonstrated in the case file; quite the contrary, he remained silent when the defendants introduced that fact as part of the controversy when answering the complaint, by affirming that only they have the right as indigenous people to remain on those lands, and not the plaintiff, who is a trader of indigenous lands. The plaintiff remained silent in the face of this defense by the defendants, and therefore failed to comply with the aforementioned Article 317 ibid. By virtue of the foregoing, on the matters that have been the subject of appeal, the appealed judgment is confirmed. -

POR TANTO:

The evidence offered for better resolution is rejected.- The judgment is confirmed on the matters that have been the subject of appeal.

*IDB386RFY47U61* [Nombre31] - JUEZ/A DECISOR/A *A1EM5C6CPKK61* [Nombre25] - JUEZ/A DECISOR/A *V78JMVAZJR861* [Nombre32] - JUEZ/A DECISOR/A There is no suitable and timely evidence in this regard.- </span></p><p style="margin-top:5.1pt; margin-bottom:5.1pt; text-align:justify; line-height:150%"><span style="width:36pt; display:inline-block">&#xa0;</span><span style="font-family:Arial; font-weight:bold">IV.-</span><span style="font-family:Arial"> The plaintiff's special judicial representative appeals the judgment issued at 2:57 p.m. on January 11, 2017, arguing the following: FIRST: She does not share what is stated in the appealed judgment regarding the prevailing protection of the indigenous territory and that possessory interdict protection as a judicial action is insufficient in the face of these conflicts, since the collective nature of the land and its communal character prevail. She considers the lower court (a-quo) overlooks the fact that, despite the cited norm, ILO Convention No. 169 itself safeguards the rights enjoyed by human beings regardless of their ethnicity, color, or race. It strips the plaintiff of his status as an indigenous person and as a human being to only indicate that those who have rights are the indigenous defendants, thus incurring in a ruling contradictory to the Human Rights recognized and ratified by Costa Rica, in the sense that restricting that right based solely on his ethnicity is an action that constitutes discrimination, especially when indicating that the plaintiff does not belong to the [Nombre26] ethnicity and therefore cannot hold rights. She argues that the ruling cannot be supported by a judgment of the Inter-American Court in the case of the Mayagna (Sumu) Awas Tigni Community v. Nicaragua, because that ethnic group has been located in Nicaragua since 2000 BC, and it is different from the specific case of the southern zone where the Bribris and Cabecares from Talamanca, and Teribes from Panama, arrived through migration, the only original inhabitants being the Borucas, where a mixed coexistence exists, and the State intends to create segregation by ethnicity, without considering that families are mixed among different ethnicities. She considers that, in the assessment of this proceeding, the foregoing is omitted, and a harsh segregation by ethnicity is made, incurring in a discriminatory ruling against anyone who is not Bribri, violating the Political Constitution itself, the American Convention against All Forms of Discrimination, and Convention 169. The customs of each people must be taken into account when deciding, and any person familiar with the different cultures, customs, and traditions can realize that for many years in all the territories of the southern zone, lands are not shared collectively; on the contrary, they are individual, all fenced, and respect for their crops, products, and goods prevails, until this group began what they call land recoveries (recuperaciones de tierras), and if the lower court (a-quo) had doubts, it should have ordered an anthropological expert report as a novel concept in Costa Rica. SECOND: She considers the spirit of the interdict is set aside, as the acts of disturbance by the defendants were proven, but the lower court (a-quo) indicates that because it is an indigenous territory, it does not merit protection and resolves by analyzing property aspects that are not discussed in a proceeding like this one, since what is sought is to protect the current and momentary possession (posesión), an aspect demonstrated and recognized by the judge himself, but stating only that the defendants have rights to said lands, with the lower court (ad quo) basing this on a personal assumption regarding the plaintiff's status as an indigenous person. She indicates that it uses the foundation of national and international legislation in a biased manner in favor of the defendants, setting aside the provisions of Convention 169 itself in its Article 4, paragraph 3, as well as the last paragraph of Article 8, which clearly indicates that indigenous people have rights but must assume the corresponding obligations, like any citizen, especially since indigenous territories are part of Costa Rica. She considers this ruling to be serious due to the abuse by this minority indigenous group that decided to carry out disturbances and invasions, killing of animals, burning, and destruction on properties that, for one reason or another, they wish to take by force. With the challenged judgment, the victim possessors of those lands are left in a complete state of defenselessness, and the door is opened for all acts of violence and abuse by these small groups to continue, so the judgment is contrary to both national and international law. THIRD: She argues that from the complaint, Mr. [Nombre1]</span><span style="font-family:Arial; -aw-import:spaces">&#xa0; </span><span style="font-family:Arial">clearly indicates he is indigenous; in the defendants' answer, they themselves accept that the plaintiff is indigenous; during the evidentiary hearing, witnesses were consulted and they stated the plaintiff is indigenous. She argues it was not a disputed fact whether the plaintiff was indigenous or not, as even the co-defendants themselves accepted him as indigenous (see answer brief). If the lower court (aquo) had doubts, it should have requested evidence in this regard, since the plaintiff is of Bribrí descent through his father and grandfather, and therefore holds his rights as an indigenous person within this territory. FOURTH: In the challenged judgment, aspects of property rights are resolved as if it were an ordinary proceeding, but the international legislation ratified by Costa Rica in that sense is not considered, and that is that even if it is an indigenous territory, it is governed by the same laws of Costa Rica. Since 1949, respect for private property has been regulated in our country in Article 45 of the Constitution and Article 21 of the American Convention on Human Rights, which states: No person may be deprived of his property, except upon payment of just compensation, for reasons of public utility or social interest. She indicates that, in the same sense, Article 17 of the Universal Declaration of Human Rights regulates the right of everyone to own property individually and collectively, and no one shall be arbitrarily deprived of his property. The lower court (a-quo) should have also assessed these regulations and not resolve only with what benefits the defendants, leaving the plaintiff's agricultural activity and possession (posesión) in a state of defenselessness. FIFTH: In this section, the appellant makes statements regarding the requirements that judgments must meet, such as that they must be consistent, maintaining correlation between what was requested and what was decided, resolve all points submitted for debate, and that the evidence must be assessed according to the rules of sound critical judgment (sana crítica racional), analyzing the evidence received and reasoning the grounds for its ruling. She argues that the inconsistency causes her great defenselessness. SIXTH: She alleges a violation of law due to failure to apply Article 317 of the Civil Procedure Code (Código Procesal Civil), since she has met the burden of proof to demonstrate that the plaintiff has been the indigenous possessor and owner of the property that suffered disturbances by the defendants. By way of conclusion, the appellant indicates that the lower court (a quo) should have taken into account all the evidence in the record, not only that which benefited the defendant party, and by not doing so, the error was made in dismissing this complaint, incurring the defect of not resolving each and every point that was the subject of debate, issuing a ruling inconsistent with the real claims of the proceeding, and violating the cited procedural and substantive regulations. (See: appeal brief in virtual office 2/3/17 8:20:34 am). </span></p><p style="margin-top:5.1pt; margin-bottom:5.1pt; text-align:justify; line-height:150%"><span style="width:36pt; display:inline-block">&#xa0;</span><span style="font-family:Arial; font-weight:bold">V.-</span><span style="font-family:Arial"> The possessory interdict proceedings for protection of possession (amparo de posesión) and restitution have as their object the protection of possession when it is disturbed or dispossessed. It is an action to protect possession over real property that can be legally possessed, in this specific case, over land declared as an indigenous territory. These types of properties have special characteristics that make their legal nature different from the rest, and the special laws that regulate them are applicable. Specifically, Article 3 of the Indigenous Law (Ley Indígena) states: " </span><span style="font-family:Arial; font-style:italic">Indigenous reserves are inalienable and imprescriptible, non-transferable, and exclusive to the indigenous communities that inhabit them. Non-indigenous persons may not rent, lease, buy, or in any other way acquire lands or farms included within these reserves. Indigenous persons may only negotiate their lands with other indigenous persons. Any transfer or negotiation of lands or improvements thereon in indigenous reserves, between indigenous and non-indigenous persons, is absolutely null and void, with the legal consequences of the case. The lands and their improvements and the products of the indigenous reserves shall be exempt from all kinds of national or municipal taxes, present or future</span><span style="font-family:Arial">." This norm is clear in indicating that lands included within indigenous territories are for the exclusive use of the members of the indigenous community in question, meaning that a person who is not a member may not claim protection for their occupation, since their permanence within said territory cannot generate any right for them, much less protection through one of the protective actions of the right of possession (posesión), given that an indigenous territory cannot be occupied by someone outside that community. The most an occupier under these conditions can aspire to is to be compensated through expropriation if they had acquired the property prior to the creation of the indigenous territory. This national regulation is consistent with the provisions of ILO Convention 169 on Indigenous and Tribal Peoples, Part II, Lands, Articles 13 to 19, and the United Nations Declaration on the Rights of Indigenous Peoples, in its Articles 25 to 28, regarding the special protection of their territories and their exclusive use by the members of their own indigenous community. In the plaintiff's case, he did not prove he was an indigenous member of the ethnic group to which that territory belongs, and the burden of proof in this regard fell upon him, in accordance with Article 317 of the Civil Procedure Code (Código Procesal Civil), applied supplementarily to agrarian matters. In her first grievance, the appellant indicates that discrimination by ethnicity is being made in resolving this matter, as the plaintiff is stripped of his status as an indigenous person and as a human being to indicate that only the indigenous defendants have rights, thus incurring in a ruling contradictory to Human Rights, since it violates other legal instruments such as the American Convention against All Forms of Discrimination. She argues that his right to individual property and his work done on the land in question are disregarded, as the local custom is that the current form of land tenure (tenencia de la tierra) is individual, with each person having their own crops and fences, as they are no longer shared collectively. This differentiated treatment to recognize an indigenous territory and distinguish it from other forms of property rights is not discriminatory as the appellant claims, because there cannot be inequality when policies or measures aimed at eliminating it are adopted, inequality that has been systematic and historical regarding vulnerable groups such as indigenous peoples. " Indigenous peoples have been discriminated against for centuries. In other words, the men, women, boys, and girls of indigenous peoples have been treated as 'inferior peoples,' without rights. This occurs because the color of their skin, their languages, their customs, and their ways of working are less valued than those of other peoples." (IIDH. Inter-American Institute of Human Rights. </span><span style="font-family:Arial; text-decoration:underline">Educational Campaign on Human Rights and Indigenous Rights.</span><span style="font-family:Arial"> San José, 2003, p. 19).- Any affirmative action aimed at eliminating that inequality gap is not discriminatory towards those not covered by the positive action (special indigenous regulations), as they are not part of that discriminated group and therefore do not require actions to be equalized in rights with the rest of society. This is known as positive discrimination, which is the term given to an action intended to establish policies that give a certain social, ethnic, minority group, or one that has historically suffered discrimination due to social injustices, preferential treatment in the access to or distribution of certain resources or services, as well as access to certain goods. The objective is to improve the quality of life of disadvantaged groups and compensate them for the harms or discrimination they have been victims of. The term affirmative action, in this system, refers to those actions (legal, administrative, or practical measures) directed at reducing or, ideally, eliminating discriminatory practices against historically excluded sectors such as indigenous peoples, an issue that is today a matter of special consideration when balancing the exercise of the collective rights of indigenous peoples and individual rights. Therefore, applying this indigenous regulation does not violate the American Convention against All Forms of Discrimination, ILO Convention 169 itself, or our Political Constitution (Constitución Política) regarding the private and individual property regulated in Article 45, since it establishes and recognizes an indigenous property right governed by special provisions that make its nature different from the common right of property and possession (posesión), such that the plaintiff's occupation cannot be recognized as a right of possession on land where the plaintiff knew beforehand the special conditions that governed it for being within indigenous territory. The plaintiff acknowledged this in the purchase-sale document executed on July 23, 2013 (folio 39), where he expressly states that he knows the property is located in the Cabagra Indigenous Territory, and he also acknowledged the scope of the Indigenous Law (Ley Indígena) that governs it. The plaintiff entered to occupy the land in question fully aware of the special provisions in the Indigenous Law (Ley Indígena), that is, the same ones that provide the basis for this ruling as indicated supra. The appellant's grievance in indicating that the custom of the area must be followed, and therefore individual property must be recognized, since everyone respects others' crops and fences, and it has ceased to be collective, is not admissible. The fact that violating indigenous territory, with each person (non-indigenous) having individual property, is customary does not mean that the right of that ethnic group has been extinguished, since, as already stated when citing Article 3 of the Indigenous Law (Ley Indígena), the right to this type of property is imprescriptible and inalienable. As a SECOND grievance, the appellant states that the spirit of the agrarian interdict has been set aside, since she managed to prove the denounced acts regarding the disturbance of possession (posesión), and the victim possessors of those lands are left in a state of defenselessness, and the door is opened for acts of violence and abuse by the small group to continue, and they must comply with the corresponding obligations in Convention 169 itself, in its Article 4, paragraph 3, and Article 8, like any Costa Rican citizen, especially since indigenous territories are part of Costa Rica. As stated supra, the plaintiff's occupation cannot be protected as possession (posesión) through the interdict route, given that it occurs on land where it is expressly prohibited for him to use it since he does not belong to the indigenous community (he did not prove he belonged to that ethnicity). In this sense, authors Picado Vargas ([Nombre25]) and Artavia Barrantes ([Nombre27]), in their work </span><span style="font-family:Arial; text-decoration:underline">Interdicts (Los Interdictos)</span><span style="font-family:Arial">, 2nd Ed., Editorial Jurídica Faro, San José, 2017, page 77, state: " </span><span style="font-family:Arial; font-style:italic">Article 6 of the Indigenous Law establishes the exclusivity of possession by indigenous people, individually or collectively, over the lands encompassed within the reserves created for those purposes. This possession is of an agrarian type, since the cited norm expressly indicates that 'only indigenous people may build houses, fell trees, exploit timber resources, or plant crops for their direct benefit within the limits of the reserves.' This norm modifies the assumptions of interdict protection. Although the rule in an interdict is not to delve into details of registry titling matters, due to the special nature of the Indigenous Law, the fact that an interdict conflict occurs in one of these reserves will directly influence the active and passive legal standing (legitimación activa y pasiva) in the specific case, as the possession of a non-indigenous individual that they allege to have in a legally reserved and restricted area could not be protected....Therefore, in the opinion of this sector, </span><span style="font-family:Arial; font-style:italic; text-decoration:underline">a non-indigenous person would not have standing for interdict protection in indigenous reserves because their possession is expressly prohibited by law</span><span style="font-family:Arial; font-style:italic">, since the special possessory protection is also intended for the ancestral condition of our aborigines</span><span style="font-family:Arial">."- Based on the foregoing, the plaintiff did not demonstrate compliance with the conditions of active legal standing, since merely exercising an occupation was not enough; he had to demonstrate he was part of the ethnic group to which the already-declared indigenous territory belongs. The appellant indicates that this ethnic group is not originally from the place, as they are migrants from Talamanca, so the case resolved in the Inter-American Court of Human Rights is not applicable, since the Mayagna (Sumo) Awas Tigni Community of Nicaragua has occupied the same territory since 2000 BC, unlike the Bribris in that sector. Regardless of the anthropological history of this ethnic group, the fact is that it has been declared an indigenous territory and its nature as such has not been disproven, so it must be respected. Nor does the fact that families have intermingled among ethnic groups denature the condition of an indigenous territory already declared by Law, since what matters for the resolution of this matter is that an occupation by the plaintiff within indigenous territory is not protectable, given that this territory is for the exclusive use of the members of that ethnic community. </span></p><p style="margin-top:5.1pt; margin-bottom:5.1pt; text-align:justify; line-height:150%"><span style="width:36pt; display:inline-block">&#xa0;</span><span style="font-family:Arial; font-weight:bold">VI.-</span><span style="font-family:Arial"> As a THIRD grievance, the plaintiff party states that the most important point according to the lower court (a-quo) is to determine that the plaintiff is not an indigenous person. However, the plaintiff does meet this condition, as he is an indigenous [Nombre26] with descent through his father and grandfather, and therefore has rights as an indigenous person within that territory. She argues this was demonstrated because the complaint clearly stated the plaintiff is indigenous, and in the defendants' answer, they accept this condition. Upon review of the complaint, in the description of the plaintiff's particulars, it is stated he is indigenous, this being the only part of his complaint where he self-identifies as such, without evidentiary support. In the statement of facts of the complaint, he makes no mention of it, so when the defendants answered each fact, they did not refer to any acceptance of the plaintiff's indigenous status, as the appellant states. Quite the contrary, in the answer visible at folio 97, they state that they, as indigenous people, are the ones entitled to that territory because they belong to the [Nombre26] ethnicity of the Durwak clan, and they refer to the plaintiff as a well-known trader of indigenous lands. Regarding this answer to the complaint, the plaintiff was granted a hearing for three days to refer to it and provide counterevidence, and he did not do so, as said hearing was not responded to, and therefore the disputed point regarding the plaintiff's status of not belonging to that indigenous community was not timely objected to. The burden of proof in that sense fell upon the plaintiff, and he did not meet it, in accordance with Article 317 of the Civil Procedure Code (Código Procesal Civil), applied supplementarily. It was not for the lower court (a-quo) to order evidence in that sense, as the appellant claims, since that is a procedural activity of the party. This omission cannot be corrected by presenting a document of indigenous recognition at this stage, when he should have demonstrated it from the initial stage and did not do so. Nor is it observed in the testimonies offered by the plaintiff, that is, [Nombre28]</span><span style="font-family:Arial; -aw-import:spaces">&#xa0;&#xa0; </span><span style="font-family:Arial">at folio 151, [Nombre29]</span><span style="font-family:Arial; -aw-import:spaces">&#xa0;&#xa0; </span><span style="font-family:Arial">at folio 152, and [Nombre30]</span><span style="font-family:Arial; -aw-import:spaces">&#xa0;&#xa0; </span><span style="font-family:Arial">at folio 153, that they stated the plaintiff is an indigenous [Nombre26] belonging to that Indigenous Community. There is no reference to this topic in their statements, so the appellant's grievance in telling this Tribunal that the plaintiff's indigenous status is proven by the testimonial evidence received in the record finds no support. As a FOURTH grievance, she indicates that the Organic Law of the Judicial Branch (Ley Orgánica del Poder Judicial) itself establishes that the official administering justice may not apply laws or other norms that are contrary to the political constitution or to current international or community law in the country, but in the challenged judgment, aspects of property are resolved as if it were an ordinary proceeding, and she considers that even though it is an indigenous territory, it is governed by the laws of Costa Rica, and Article 45 of the Political Constitution (Constitución Política), which protects private property, must be respected, along with the American Convention on Human Rights in its Article 21, which indicates that no person may be deprived of his property except upon payment of just compensation for reasons of public utility or social interest. As well as the Universal Declaration of Human Rights, which in its Article 17 indicates that everyone has the right to own property individually and collectively, and no one shall be arbitrarily deprived of his property, regulations that should not have been set aside by the lower court (a-quo), deciding only with what benefits the defendants, leaving the plaintiff's agricultural activity and possession (posesión) in a state of defenselessness. This Tribunal does not share the grievance expressed by the appellant in stating that even if it is an indigenous territory, Article 45 of the Constitution regarding the right to private property must be applied. It was explained at the beginning of the considerative part that the right of property, when dealing with indigenous communities, has special characteristics that are different from the common right of property. That these special characteristics are due to positive discrimination policies to achieve a more equitable society, contributing to the development of those indigenous peoples who have been historically dispossessed and marginalized, given that they are a social group in conditions of vulnerability. Hence, national and international legislation is enacted to eliminate that inequality gap, being special legislation that prevails over general legislation; in this case, the general is the private property contemplated in the Magna Carta and International Instruments, but by special laws of public order, indigenous property is created with characteristics of inalienability and imprescriptibility, being unavailable to third-party non-indigenous persons outside the community, and its application as special regulations must be mandatorily observed. If the plaintiff considers that compensation through a fair payment should be made, that procedure is not proper for this type of proceeding, whose nature is summary. Regardless of the substantive right regarding possession (posesión) and/or property, which is certainly a matter for more detailed analysis in an ordinary proceeding, what was relevant for the resolution of this interdict is the matter of the plaintiff's active legal standing, who, by occupying land where there is a prohibition against doing so, does not become entitled to interdict protection, and the lower court (a-quo) resolved in this sense, without it being relevant to analyze the passive legal standing. As a FIFTH grievance, the appellant makes theoretical statements about the requirements that judgments must meet, such as that they must be consistent, maintaining correlation between what was requested and what was decided, resolve all points submitted for debate, with the evidence being assessed according to the rules of sound critical judgment (sana crítica racional), analyzing the evidence received and reasoning the grounds for its ruling. She argues that the inconsistency causes her great defenselessness. However, the appellant party does not specifically refer to the reasons why she considers these situations occur; she does not point out which parts of the judgment contain such deficiencies, or which specific points were left unresolved. As this grievance is a theoretical statement, it is impossible to analyze the aspects to which it refers, as she does not specify. The SIXTH grievance refers to the violation of Article 317 of the Civil Procedure Code (Código Procesal Civil), considering that she has met the burden of proof by demonstrating that he was the possessor who was disturbed by the defendants, as shown by the testimonial evidence. Said norm has not been violated, as it is considered that it was not applied by the plaintiff, who omitted to demonstrate that he held a right within the indigenous territory, since the status he claims to have was not proven in the record; quite the contrary, he remained silent when the defendants introduced that fact as part of the controversy by answering the complaint, asserting that only they have the right as indigenous people to remain on those lands, and not the plaintiff, who is a trader of indigenous lands. The plaintiff remained silent in the face of this defense by the defendants, thereby failing to comply with the cited Article 317 ibidem. Based on the foregoing, regarding what has been the subject of the appeal, the appealed ruling is confirmed. - </span></p><p style="margin-top:5.1pt; margin-bottom:5.1pt; text-align:center; line-height:150%"><span style="font-family:Arial; font-weight:bold">THEREFORE: </span></p><p style="margin-top:5.1pt; margin-bottom:5.1pt; text-align:justify; line-height:150%"><span style="width:36pt; display:inline-block">&#xa0;</span><span style="font-family:Arial">The evidence offered for a better decision (para mejor resolver) is rejected.- The judgment is confirmed regarding what has been the subject of the appeal.

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|  | *IDB386RFY47U61*<br>IDB386RFY47U61<br>[Nombre31] - JUEZ/A DECISOR/A |  as a judicial action is insufficient in the face of these conflicts, because the collective nature of the land and its communal character prevail. She considers the lower court (a-quo) overlooks that, despite the cited norm, ILO Convention No. 169 itself safeguards the rights that all human beings possess, independent of their ethnicity, color, or race. It strips the plaintiff of his condition as an indigenous person and as a human being to only indicate that those who have rights are the indigenous defendants, thus incurring in a contradictory ruling to the Human Rights recognized and ratified by Costa Rica, in the sense that restricting that right based solely on his ethnicity is an action that constitutes discrimination, especially when indicating that the plaintiff does not belong to the Bribri ethnic group and therefore cannot hold rights. She argues the ruling cannot be supported by a judgment of the Inter-American Court in the case of the Mayagna (Sumu) Awas Tingni Community v. Nicaragua, because that ethnic group has been located in Nicaragua since 2000 BC and differs from the specific case of the southern zone where, through migration, the Bribris and Cabecares from Talamanca and the Teribes from Panama arrived, the only original inhabitants being the Borucas, where a mixed coexistence exists, and the State intends to create segregation by ethnicity, without considering that families are mixed among different ethnic groups. She considers that the assessment of this case overlooks the foregoing, and imposes a harsh segregation by ethnicity, incurring in a discriminatory ruling against anyone who is not Bribri, violating the Political Constitution itself, the American Convention against All Forms of Discrimination, and Convention 169. The customs of each people must be taken into account when deciding, it being that any person who knows about the different cultures, customs, and traditions can realize that for many years, in all the territories of the southern zone, lands are not shared collectively; on the contrary, they are individual, all fenced, and respect for their crops, products, and goods predominates, until this group began what they call land recoveries (recuperaciones de tierras), and if the lower court had doubts, it should have ordered an anthropological expert report (peritaje antropológico) as a novel instrument in Costa Rica. **SECOND:** She considers the spirit of the possessory action (interdicto) is set aside, as the acts of disturbance (hechos de perturbación) by the defendants were proven, but the lower court indicates that because it concerns an indigenous territory, it does not deserve protection and resolves by analyzing property aspects that are not discussed in a proceeding like the present one, because what is sought is to protect the current and momentary possession, an aspect demonstrated and recognized by the same judge, but indicating that only the defendants have rights to said lands, the lower court basing this on its own assumption about the plaintiff's indigenous status. She indicates it uses the foundation of national and international legislation in a biased manner in favor of the defendants, setting aside what is established in Convention 169 itself in its Article 4, paragraph 3, as well as the last paragraph of Article 8, which clearly indicates that indigenous people have rights but must assume the corresponding obligations, like any citizen, especially since indigenous territories are part of Costa Rica. She considers this ruling serious due to the abuse by this minority group of indigenous people who decided to carry out disturbances and invasions, killing of animals, burning, destruction on the properties that, for one reason or another, they wish to take by force. With the challenged judgment, the victims who are possessors of those lands are left completely defenseless (indefensión), and the door is opened for all acts of violence and abuse by these small groups to continue, making the judgment contrary to national and international law. **THIRD:** She argues that from the complaint (escrito de demanda), Mr. [Name1] clearly indicates that he is indigenous; in the defendants' answer (contestación), they themselves accept that the plaintiff is indigenous; during the evidentiary hearing, witnesses were consulted and indicated that the plaintiff is indigenous. She argues that whether or not the plaintiff was indigenous was not a disputed fact, as even the co-defendants themselves accepted him as indigenous (see written answer). If the lower court had doubts, it should have requested evidence in this regard, because the plaintiff is of Bribri descent through his father and grandfather, and therefore holds his rights as an indigenous person within this territory. **FOURTH:** The appealed judgment resolves aspects of property law as if it were an ordinary proceeding (proceso ordinario), but fails to consider the international legislation ratified by Costa Rica in this regard, since even if it concerns an indigenous territory, it is governed by the same laws of Costa Rica, it being that in our country, since 1949, respect for private property has been regulated in Article 45 of the Constitution and Article 21 of the American Convention on Human Rights, which states: "No one shall be deprived of his property except upon payment of just compensation, for reasons of public utility or social interest." She indicates that, in the same vein, Article 17 of the Universal Declaration of Human Rights regulates the right of everyone to own property individually and collectively, and no one shall be arbitrarily deprived of his property. The lower court should have also assessed this legislation and not resolved solely with what serves the defendants, leaving the plaintiff's agricultural activity and possession completely defenseless. **FIFTH:** In this section, the appellant makes statements regarding the requirements that judgments must meet, such as that they must be consistent, maintaining a correlation between what is requested and what is decided, resolving all points submitted for debate, with an assessment of evidence (valoración de la prueba) according to sound critical reasoning (sana crítica racional), analyzing the evidence received and reasoning the foundations of its ruling. She argues that the inconsistency causes her great defenselessness. **SIXTH:** She alleges a violation of law due to the failure to apply Article 317 of the Civil Procedure Code, since she has met the burden of proof to demonstrate that the plaintiff has been the indigenous possessor and owner of the property that suffered disturbances by the defendants.

By way of conclusion, the appellant indicates that the lower court should have taken into account all of the evidence in the case file, not only that which benefited the defendant, and by not doing so, erred in declaring this lawsuit without merit, incurring in the defect of not resolving each and every one of the points that were the subject of debate, issuing a ruling inconsistent with the real claims of the process, and violating the cited procedural and substantive regulations. (Cf: appeal brief in virtual filing 3/2/17 8:20:34 am).

V.- The possessory interdict processes of protection of possession and restitution have as their object the protection of possession when it is disturbed or dispossessed. It is an action to protect possession over real property that can be legally possessed, in this specific case over a piece of land declared as indigenous territory. This type of property has special characteristics that make its legal nature different from the rest, and the special laws that regulate them are applicable. Specifically, Article 3 of the Ley Indígena states: "The indigenous reserves are inalienable and imprescriptible, non-transferable, and exclusive to the indigenous communities that inhabit them. Non-indigenous persons may not rent, lease, buy, or in any other way acquire lands or farms comprised within these reserves. Indigenous persons may only negotiate their lands with other indigenous persons. Any transfer or negotiation of lands or improvements on them in the indigenous reserves, between indigenous and non-indigenous persons, is absolutely null, with the legal consequences of the case. The lands and their improvements and the products of the indigenous reserves shall be exempt from all kinds of national or municipal taxes, present or future." This norm is clear in indicating that lands comprised within indigenous territories are for the exclusive use of the members of the indigenous community in question, meaning that a person who is not a member cannot claim protection for their occupation, since their permanence within said territory cannot generate any right for them, much less protection through one of the protective actions of possession rights, given that it is not feasible for an indigenous territory to be occupied by someone outside that community. The most an occupant in these conditions can aspire to is to be compensated through expropriation if they had acquired the property prior to the creation of the indigenous territory. This national regulation is consistent with the provisions of Convention 169 of the International Labour Organization (ILO) concerning Indigenous and Tribal Peoples in its Part II, Land, Articles 13 to 19, and the United Nations Declaration on the Rights of Indigenous Peoples, in its Articles 25 to 28, regarding the special protection of their territories and their exclusive use by members of their own indigenous community. In the plaintiff's case, they did not demonstrate being an indigenous member of the ethnic group to which that territory belongs, and the burden of proof in this regard fell upon them, in accordance with Article 317 of the Civil Procedure Code, which applies supplementarily to agrarian matters. In their first grievance, the appellant indicates that discrimination by ethnicity was made when resolving this matter, as the plaintiff was stripped of their status as indigenous and as a human being to indicate that the only ones with rights are the indigenous defendants, therefore incurring in a ruling contradictory to Human Rights, since it violates other legal instruments such as the Inter-American Convention against All Forms of Discrimination. They argue that their right to individual property and their work carried out on the land in question is being disregarded, because the custom of the place is that the current form of land tenure is individual, with everyone having their own crops and fences, as they are no longer shared collectively. This differentiated treatment to recognize an indigenous territory and distinguish it from other forms of property rights is not discriminatory as the appellant claims, because there cannot be inequality when policies or measures aimed at eliminating it are taken, inequality that has been systematic and historical regarding vulnerable groups such as indigenous peoples. "Indigenous peoples have been discriminated against for centuries. In other words, the men, women, and children of indigenous peoples have been treated as 'inferior peoples,' without rights. This occurs because the color of their skin, their languages, their customs, and their ways of working are less valued than those of other peoples." (IIDH. Inter-American Institute of Human Rights. Educational Campaign on Human Rights and Indigenous Rights. San José, 2003, page 19). Any affirmative action aimed at eliminating this inequality gap is not discriminatory towards those not covered by the positive action (special indigenous regulations), because they are not part of that discriminated group and therefore do not require actions to be equal in rights compared to the rest of society. This is known as positive discrimination, which is the term given to an action that aims to establish policies that give a certain social, ethnic, minority group, or one that has historically suffered discrimination due to social injustices, preferential treatment in the access or distribution of certain resources or services as well as access to certain goods. The objective is to improve the quality of life of disadvantaged groups and compensate them for the damages or discrimination of which they have been victims. The term affirmative action, in this system, refers to those actions (legal, administrative, or practical measures) directed at reducing or, ideally, eliminating discriminatory practices against historically excluded sectors such as indigenous peoples, an issue that is nowadays a matter of special treatment when weighing the exercise of the collective rights of indigenous peoples against individual rights. Therefore, applying these indigenous regulations does not violate the Inter-American Convention against All Forms of Discrimination, Convention 169 of the ILO itself, or our Political Constitution regarding private and individual property regulated in Article 45, because an indigenous property right is established and recognized, which is governed by special provisions that make its nature different from common property and possession rights, such that the plaintiff's occupation cannot be recognized as a possession right, on land where the plaintiff knew beforehand the special conditions that governed it because it is within an indigenous territory. The plaintiff acknowledged this in the purchase-sale document signed on July 23, 2013 (folio 39), where they expressly indicate knowing that the property is located in the Cabagra Indigenous Territory, and likewise acknowledged the scope of the Ley Indígena that governs it. The plaintiff entered to occupy the land in question, with full knowledge of the special provisions in the Ley Indígena, that is, the same ones that provide the basis for this ruling indicated above. The appellant's grievance is not receivable when they indicate that the custom of the area must be followed, and that individual property should therefore be recognized, since everyone respects the crops and fences of others, as it is no longer collective. That it is customary to violate indigenous territory, with everyone (non-indigenous) having individual property, does not mean the right of that ethnic group has been extinguished, because as already stated when citing Article 3 of the Ley Indígena, the right to this type of property is imprescriptible and inalienable.

As a SECOND grievance, the appellant states that the spirit of the agrarian possessory interdict (interdicto agrario) has been set aside, because they managed to prove the claimed facts of the disturbance of possession, and the victims possessing those lands are left in a state of defenselessness (indefensión), opening the doors for acts of violence and abuse by the small group to continue, a group that must comply with the corresponding obligations in Convention 169 itself, in its Article 4, paragraph 3, and Article 8, like any Costa Rican citizen, especially since the indigenous territories are part of Costa Rica. As stated above, the plaintiff's occupation cannot be protected as a possession through the possessory interdict route, given that it occurs on land where their use is expressly prohibited for not belonging to the indigenous community (they did not prove belonging to that ethnic group). In this sense, the authors Picado Vargas (CARLOS) and Artavia Barrantes (SERGIO), in their work Los Interdictos, 2nd Ed, Editorial Jurídica Faro, San José, 2017, page 77 state: "Article 6 of the Ley Indígena establishes the exclusivity in the possession of indigenous persons, individually or collectively, over the lands covered in the reserves created for those effects. This possession is of an agrarian type, since the cited norm expressly indicates that 'only indigenous persons may build houses, cut down trees, exploit timber resources, or plant crops for their direct benefit within the limits of the reserves.' This norm modifies the requirements of possessory interdict protection. Although the rule in the possessory interdict (interdicto) is not to go into details about matters of registry title, due to the specificity of the Ley Indígena, the fact that a possessory conflict occurs in one of these reserves will directly influence the standing to sue and standing to be sued (legitimación activa y pasiva) in the specific case, since the possession that a non-indigenous individual claims to have in a legally reserved and restricted area could not be protected....Therefore, in the opinion of this sector, a non-indigenous person would not have standing for possessory interdict protection in indigenous reserves because their possession is expressly prohibited by law, as the special possessory protection is also intended for the ancestral condition of our aborigines." Therefore, the plaintiff did not demonstrate compliance with the conditions for standing to sue (legitimación activa), since it was not enough to exercise an occupation, but rather to demonstrate they were part of the ethnic group to which the indigenous territory, already declared as such, belongs. The appellant indicates that this ethnic group is not originally from the place, as they are migrants from Talamanca, so the case resolved by the Inter-American Court of Human Rights is not applicable, because the Mayagna (Sumo) Awas Tingni Community of Nicaragua has occupied the same territory since 2000 B.C., unlike the Bribris in that sector. Regardless of the anthropological history of this ethnic group, the fact is that it has been declared an indigenous territory and its nature as such has not been disproven, so it must be respected. Nor does the fact that families have intermingled as ethnic groups denaturalize the condition of an indigenous territory already declared by Law, because what matters for the resolution of this matter is that the plaintiff's occupation within indigenous territory is not protectable, as that territory is for exclusive use by the members of that ethnic community.

VI.- As a THIRD grievance, the plaintiff party states that the most important point, in the opinion of the lower court (a-quo), is to determine that the plaintiff is not an indigenous person. However, the plaintiff does meet this condition, as they are an indigenous Bribri with ancestry from their father and grandfather, therefore having rights as an indigenous person within that territory. They argue that this was demonstrated because the lawsuit brief clearly stated the plaintiff is indigenous, and the defendants accepted this condition in their reply. The lawsuit brief is observed, and in the description of the plaintiff's qualifications, it is indicated they are indigenous, this being the only part of their lawsuit where they state this, self-determining as such, without evidentiary support. In the statement of facts of the lawsuit, no mention is made of this, therefore, in contesting each fact, the defendants do not make any reference to an acceptance of the plaintiff's indigenous condition, as the appellant states. Quite the contrary, in the reply visible on folio 97, they indicate that they are the indigenous persons who have rights to that territory because they belong to the Bribri ethnic group of the Durwak clan, and they refer to the plaintiff as a recognized merchant of indigenous lands. Regarding this reply to the lawsuit, an audience was granted to the plaintiff for a period of three days so they could refer to it and provide counter-evidence, and they did not do so, as this audience was not answered, and therefore the controversial point regarding the plaintiff's condition of not belonging to that indigenous community was not timely objected to. The burden of proof in that sense fell to the plaintiff and they did not meet it in accordance with Article 317 of the Civil Procedure Code, which applies supplementarily. It did not fall to the lower court (a-quo) to order proof in that sense as the appellant claims, given that this is procedural activity of the party. That omission cannot be remedied by presenting a document of indigenous recognition at this instance, when they should have demonstrated it from the initial stage and did not do so. Nor is it observed in the testimonies offered by the plaintiff, namely [Nombre2] on folio 151, [Nombre3] on folio 152, and [Nombre4] on folio 153, that they stated the plaintiff is an indigenous Bribri belonging to that Indigenous Community. There is no reference to this topic in their statements, so the appellant's grievance in indicating to this Tribunal that the plaintiff's indigenous condition is demonstrated by the testimonial evidence received in the case file is unfounded.

As a FOURTH grievance, they indicate that the very Ley Orgánica del Poder Judicial establishes that the judicial officer administering justice may not apply laws or other norms that are contrary to the political constitution or to the international or community law in force in the country, but in the appealed judgment, aspects of property are resolved as if it were an ordinary trial, and they consider that even though it concerns indigenous territory, it is governed by the laws of Costa Rica, and that Article 45 of the Political Constitution, which protects private property, must be respected, along with the American Convention on Human Rights in its Article 21, which indicates that no person may be deprived of their property except upon payment of just compensation for reasons of public utility or social interest. As well as also the Universal Declaration of Human Rights, which in its Article 17 indicates that everyone has the right to property individually and collectively, and no one shall be arbitrarily deprived of their property; regulations that the lower court should not have set aside, resolving only what serves the defendants, leaving the plaintiff's agrarian activity and possession in a state of defenselessness (indefensión). This Tribunal does not share the grievance expressed by the appellant when stating that even though it concerns indigenous territory, Constitutional Article 45 on the right to private property must be applied. It was already explained at the beginning of the recitals that property rights concerning indigenous communities have special characteristics that differ from common property rights. That such special characteristics respond to policies of positive discrimination to achieve a more equitable society, contributing to the development of those indigenous peoples who have been historically dispossessed and marginalized, given that they are a social group in conditions of vulnerability. Hence, national and international legislation is issued to eliminate that inequality gap, this being special legislation that prevails over general legislation. In this case, what is general is private property contemplated in the Magna Carta and International Instruments, but by special laws of public order, indigenous property is created with characteristics of inalienability and imprescriptibility, being unavailable to non-indigenous third parties outside the community, and its application as special regulations is mandatory. If the plaintiff considers that compensation by fair payment must be made, that procedure is not proper to this type of process, whose nature is summary. Regardless of the substantive right over possession and/or property, which is certainly an analysis requiring greater detail in an ordinary trial, what was relevant for the resolution of this possessory interdict (interdicto) is the matter of the plaintiff's standing to sue (legitimación activa), who, by occupying land where there is a prohibition against doing so, does not become eligible for possessory interdict protection, and in this sense the lower court (a-quo) resolved, without it being relevant to analyze the standing to be sued (legitimación pasiva).

As a FIFTH grievance, the challenger makes theoretical enunciations about the requirements that judgments must meet, such as they must be consistent (congruentes) maintaining correlation between what was requested and what was resolved, resolving all the points submitted for debate, with an assessment of the evidence in accordance with the rules of sound judgment (sana crítica racional), analyzing the evidence received and reasoning the foundations of its ruling. They argue that this inconsistency (incongruencia) causes them great defenselessness (indefensión). However, the appealing party makes no specific reference to the reasons why they consider these situations occur, does not indicate which parts of the judgment contain such deficiencies, or which specific points were left unresolved. As this grievance is a theoretical enunciation, it is impossible to analyze the aspects to which it refers, as it does not specify.

The SIXTH grievance refers to the violation of Article 317 of the Civil Procedure Code, as they consider they have met the burden of proof by demonstrating they were the possessor who was disturbed by the defendants, as shown through the testimonial evidence. This rule has not been violated, as it is considered that it was not applied by the plaintiff by omitting to demonstrate holding a right within indigenous territory, because the condition they claim to have was not demonstrated in the case file. Quite the contrary, they remained silent when the defendants introduced that fact as part of the controversy when contesting the lawsuit, by affirming that only they have the right as indigenous people to remain on those lands, and not the plaintiff, who is a merchant of indigenous lands. The plaintiff remained silent in the face of this defense by the defendants, therefore failing to comply with the cited Article 317 ibid. For the reasons stated, regarding that which has been the object of appeal, the appealed ruling is confirmed." SECOND CIRCUIT COURT OF SAN JOSÉ.- At sixteen hours and forty-five minutes on the thirteenth of July of two thousand eighteen.- **INTERDICTAL PROCEEDING** filed by **[Name1]** , of legal age, widower, farmer, resident of Cabagra de Brunka de Buenos Aires de Puntarenas, identity card number ID1 -- ; *against* **[Name2]** , identity card number ID2 -- ; **[Name3]** , identity card number ID3 -- ; **[Name4]** , identity card number ID4 -- ; **[Name5]** , identity card number ID5 -- ; **[Name6]** , identity card number ID6 -- ; **[Name7]** , identity card number ID7 -- ; **[Name8]** , identity card number ID8 -- ; **[Name9]** , identity card number ID9 -- ; **[Name10]** , identity card number ID10 -- ; **[Name11]** , identity card number ID11 -- ; **[Name12]** , identity card number ID12 -- ; **[Name13]** , identity card number ID13 -- ; **[Name14]** , identity card number ID14 -- ; **[Name15]** ; identity card number ID15 -- ; **[Name16]** , identity card number ID16 -- ; **[Name17]** , identity card number ID17 -- ; **[Name18]** , identity card number ID18 -- ; **[Name19]** , identity card number ID19 -- ; **[Name20]** , identity card number ID20 -- ; **[Name21]** , identity card number ID21 -- ; **[Name22]** , identity card number ID22 -- ; and against **[Name23]** , identity card number ID23 -- . The **Asociación de Desarrollo Integral de Reserva Indígena de San Rafael de Caragra de Buenos Aires** intervenes in the proceeding, legal ID number ID24 -- , represented by its president [Name24] , of legal age, educator, resident of Buenos Aires, identity card number ID25 -- . Acting in the proceeding as special judicial representative of the plaintiff is attorney Thais Vidal Navarro, of legal age, single, lawyer, resident of Puntarenas, identity card number ID26 -- ; and as directing attorneys: for the defendants, lawyer Ricardo Araya Piedra, bar association number eighteen thousand nine hundred eighteen, and for the Association, lawyer Hugo Lazaro Estrada, bar association number twenty thousand seven hundred eighty-six. Processed before the Agrarian Court of Buenos Aires.- **WHEREAS:** **1.-** The plaintiff brought an interdictal proceeding, valued at the sum of five million five hundred thousand colones, so that judgment be rendered declaring: *"**...1.-** To grant the Interdict of Protection of Agrarian Possession and to order the defendants to refrain from disturbing the possession of the undersigned, to withdraw from the boundary line, to threaten, to carry out burnings, to cut fences, to approach the boundary line or to enter in any way onto the undersigned's property. Likewise, not to assault, threaten, or intimidate the defendant, his laborers, and witnesses of this proceeding, under warning that otherwise he will be tried for the crime of disobedience to authority. **2.-** That they be ordered to pay the damages caused, as well as the costs of this action,"* (folios 45 to 55).- **2.-** The defendants were duly notified of the claim filed against them, and within the legal term they answered negatively to this action, raising the exceptions of lack of standing of the plaintiff and lack of right (folios 97 to 101).- **3.-** Judge Jean [Name25] Céspedes Mora, of the Agrarian Court of Buenos Aires, by judgment number **01-2017** of fourteen hours and fifty-seven minutes on the eleventh of January of two thousand seventeen, resolved: "**WHEREFORE**: *In accordance with the foregoing, facts deemed proven, analysis set forth, legal citations and jurisprudential citations commented upon, the exception of lack of right raised by the defendants is upheld. Consequently, the present interdictal claim for protection of possession brought by [Name1] against [Name2] and others is **DECLARED WITHOUT MERIT IN ALL ITS PARTS**. A ruling on the defense of lack of standing is omitted as unnecessary. The losing party is exonerated from the payment of costs*," (See the Virtual Desk of the Agrarian Court of Buenos Aires, in Associated Documents, file dated 1/11/17 at 2:57:00 p.m.).- **4.-** Attorney Thais Vidal Navarro, special judicial representative of the plaintiff [Name1] , filed an appeal with an express indication of the reasons relied upon to refute the thesis of the trial court (See the Virtual Desk of the Agrarian Court of Buenos Aires, in the Filing Tray, file dated 2/3/17 at 8:20:34, images 3 to 12).- **5.-** In the processing of this case, the legal prescriptions have been observed, and there are no errors or omissions capable of rendering the judgment null.- **Drafted by Judge Alvarado Paniagua, and;** **WHEREAS:** **I.-** The plaintiff, together with the appeal, provides a document entitled "Documento de reconocimiento indígena" (Indigenous recognition document), stating that Mr. [Name1] is a Bribrí indigenous person. This is not admissible at this procedural stage. When the defendants answered the claim on folio 97, they indicated that they, and not the plaintiff, hold the right over the area in conflict, given that they are Bribrí indigenous persons and their acting is under the protection of recovery of lands from the hands of those who are not indigenous, and they assert that the plaintiff is a well-known trader of indigenous lands, who acquired after the legal declaration as indigenous territory. (See folio 98).- Regarding this controversy raised in the answer to the claim, the lower court granted a three-day hearing to the plaintiff to address it (see resolution on folio 134), without Mr. [Name1] presenting any counter-evidence. It was at this procedural moment that he had the opportunity to provide and demonstrate his status as an indigenous person of the [Name26] ethnicity, if that were the case, but he did not do so, he did not even respond to said hearing. Admitting the document offered here in the second instance is to remedy the omission of providing evidence in this sense at the corresponding procedural moment. Doing so creates an imbalance between the parties, since evidence for better judgment is not for the purpose of remedying the proof that was not offered in a timely manner, it being the responsibility of the party and his attorney to present it at the procedural stage that was appropriate, which he did not do. Based on the foregoing, this evidence is not admitted, in accordance with Articles 517 paragraph 7, 522, and 536 of the Labor Code as amended by the new Labor Procedure Law, applied supplementarily to agrarian matters by provision of Article 26 of the Agrarian Jurisdiction Law.- **II.-** This Court shares the relation of facts deemed proven in the appealed judgment, as it is a faithful reflection of what occurred in the case file.- **III.-** For the decision of this matter, the following is taken as an unproven fact: The plaintiff [Name1] did not prove being an indigenous person belonging to the Bribrí ethnic group. There is no suitable and timely evidence in this regard.- **IV.-** The special judicial representative of the plaintiff appeals the judgment of fourteen hours and fifty-seven minutes on the eleventh of January of two thousand seventeen, arguing the following: FIRST: She does not share what was stated in the appealed judgment regarding the assertion that the protection of the indigenous territory prevails and that possessory protection (tutela interdictal) as judicial action is insufficient in the face of these conflicts, because the collectivity of the land and its communal character prevail. She considers that the lower court omits that, despite the cited norm, the same Convention number 169 of the ILO safeguards the rights that human beings have, independent of their ethnicity, color, or race. It strips the plaintiff of his condition as an indigenous person and as a human being to only indicate that those who have rights are the indigenous defendants, thus incurring in a judgment contradictory to the Human Rights recognized and ratified by Costa Rica in the sense that restricting that right based solely on his ethnicity is an action that incurs discrimination, especially when indicating that the plaintiff does not belong to the [Name26] ethnicity and therefore cannot hold rights. She argues that the judgment cannot be supported by a sentence of the Inter-American Court in the case of the Mayagna (Sumu) Awas Tingni Community vrs Nicaragua, since that ethnic group is located in Nicaragua since 2000 BC, and is different from the specific case of the southern zone where Bribrís and Cabécares from Talamanca, and Teribes from Panama migrated, given that the only original ones are the Borucas, where a mixed coexistence exists, and the State intends to create segregation by ethnicity, without considering that families are mixed among different ethnicities. She considers that, in the assessment of the present proceeding, the foregoing is omitted, and a harsh segregation by ethnicity is made, incurring in a discriminatory judgment against anyone who is not Bribrí, violating the very Political Constitution, the Inter-American Convention against All Forms of Discrimination, Convention 169. The customs of each people must be taken into account when resolving, and any person who knows about the different cultures, customs, and traditions can realize that for many years in all the territories of the southern zone, lands are not shared collectively; on the contrary, they are individual, all fenced, and respect for their crops, products, and goods predominates, until this group began what they call land recoveries, and if the lower court had doubts, it should have ordered an anthropological expert report as a novel figure in Costa Rica. SECOND: She considers that the spirit of the interdictal remedy is set aside, since the acts of disturbance (perturbación) by the defendants were accredited, but the lower court indicates that because it concerns an indigenous territory, it does not deserve protection and resolves by analyzing property aspects that are not discussed in a proceeding like the present one, because what is sought is to protect current and momentary possession, an aspect demonstrated and recognized even by the same judge, but indicating only the defendants have rights to said lands, the lower court basing itself on its own assumption regarding the plaintiff's indigenous status. She indicates that it uses the foundation of national and international legislation in a biased manner in favor of the defendants, setting aside what is established in the same Convention 169 in its Article 4 paragraph 3, as well as the last paragraph of Article 8, which clearly states that indigenous people have rights but must assume the corresponding obligations, like any citizen, especially since indigenous territories are part of Costa Rica. She considers this judgment serious due to the abuse by this minority group of indigenous people who decided to carry out disturbances (perturbaciones) and invasions, killing of animals, burnings, and destruction on properties that, for one reason or another, they wish to take by force. With the challenged judgment, the victims who are possessors of those lands are left in a complete state of defenselessness, and the door is opened for all the acts of violence and abuse to continue being carried out by these small groups, therefore the judgment is contrary to both national and international law. THIRD: She argues that since the filing of the claim, Mr. [Name1] clearly indicates that he is indigenous; in the answer of the defendants, they themselves accept that the plaintiff is indigenous; during the evidentiary hearing, witnesses were consulted, indicating the same and that the plaintiff is indigenous. She argues it was not a disputed fact whether the plaintiff was indigenous or not, since even the co-defendants themselves accepted him as indigenous (see answer brief). If the lower court had doubts, it should have requested evidence in this regard, because the plaintiff is of Bribrí descent through his father and grandfather, and therefore holds his rights as an indigenous person within this territory. FOURTH: In the challenged judgment, aspects of property rights are resolved as if it were an ordinary proceeding, but international legislation ratified by Costa Rica in that sense is not taken into account, which is that, even if it concerns an indigenous territory, it is governed by the same laws of Costa Rica, given that in our country, since 1949, respect for private property has been regulated in Article 45 of the Constitution and Article 21 of the American Convention on Human Rights, which says: No person may be deprived of his property, except through the payment of just compensation, for reasons of public utility or social interest. In the same sense, Article 17 of the Universal Declaration of Human Rights regulates the right of every person to property individually and collectively, and nobody shall be arbitrarily deprived of his property. The lower court should have also evaluated these norms and not resolved only with what serves the defendants, leaving the agricultural activity and the possession of the plaintiff in a state of defenselessness. FIFTH: In this section, the appellant makes statements regarding the requirements that judgments must meet, such as that they must be consistent, maintaining correlation between what is requested and what is resolved, resolve all points submitted to debate, making an assessment of the evidence in accordance with the rules of sound criticism (sana crítica racional), analyzing the evidence received, and reasoning the foundations of its judgment. She argues that with the inconsistency, great defenselessness is produced. SIXTH: She alleges violation of law due to lack of application of Article 317 of the Civil Procedure Code, since she has met the burden of proof to demonstrate that the plaintiff has been the indigenous possessor owner of the property that suffered disturbances (perturbaciones) by the defendants. By way of conclusion, the appellant indicates that the lower court should have taken into account the totality of the evidence in the case file, not only what benefited the defendant party, and by not doing so, the error was made of declaring the present claim without merit, incurring the defect of not resolving each and every point that may have been the object of the debate, rendering a judgment inconsistent with the real claims of the proceeding, and violating the cited procedural and substantive regulations. (Cf: appeal brief in virtual desk 2/3/17 8:20:34 am).

**V.-** The interdictal proceeding for protection of possession and restitution have the purpose of protecting possession when it is disturbed or dispossessed. It is an action for the protection of possession over real property that can be legally possessed, in the specific case over land declared an indigenous territory.

This type of property has special characteristics that make its legal nature distinct from the rest, with the special laws that regulate them being applicable. Specifically, Article 3 of the Ley Indígena states: " </span><span style="font-family:Arial; font-style:italic">Indigenous reserves are inalienable and imprescriptible, non-transferable, and exclusive to the indigenous communities that inhabit them. Non-indigenous persons may not rent, lease, buy, or in any other way acquire lands or farms comprised within these reserves. Indigenous persons may only negotiate their lands with other indigenous persons. Any transfer or negotiation of lands or improvements thereon in indigenous reserves, between indigenous and non-indigenous persons, is absolutely null, with the legal consequences of the case. The lands and their improvements and the products of indigenous reserves shall be exempt from all types of national or municipal taxes, present or future</span><span style="font-family:Arial">". This rule is clear in indicating that the lands comprised within indigenous territories are for the exclusive use of the members of the indigenous community in question, meaning that a person who is not a member cannot claim protection for their occupation, since their permanence within said territory cannot generate any right for them, much less protection through one of the protective actions for the right of possession, given that it is not feasible for an indigenous territory to be occupied by someone outside of that community; the most an occupant under these conditions can aspire to is to be compensated through expropriation in the event of having acquired the property prior to the creation of the indigenous territory. This national regulation is consistent with the provisions of Convention 169 of the International Labour Organization (I.L.O.) Concerning Indigenous and Tribal Peoples in its Part II, Lands, Articles 13 to 19, and the United Nations Declaration on the Rights of Indigenous Peoples, in its Articles 25 to 28, regarding the special protection of their territories and their exclusive use by the members of their own indigenous community, and in this case the plaintiff did not prove that he was an indigenous member of the ethnic group to which that territory belongs, given that the burden of proof in this regard fell upon him, in accordance with Article 317 of the Civil Procedure Code, applied supplementarily to agrarian matters. In her first grievance, the appellant indicates that a discrimination based on ethnicity is made when resolving this matter, as the plaintiff is stripped of his status as an indigenous person and as a human being to indicate that the only ones who have rights are the indigenous defendants, thereby incurring a ruling contradictory to Human Rights, since other legal instruments such as the Inter-American Convention against All Forms of Discrimination are violated. She argues that his right to individual property and his work carried out on the land in question is disregarded, since the local custom is that the form of land tenure is currently individual, with each person having their own crops and fences, as they are no longer shared collectively. This differentiated treatment to recognize an indigenous territory and distinguish it from other forms of property rights is not discriminatory as the appellant claims, for there can be no inequality when policies or measures aimed at eliminating it are taken, inequality that has been systematic and historical with respect to vulnerable groups such as indigenous peoples. " Indigenous peoples have been discriminated against for centuries. In other words, the men, women, boys, and girls of indigenous peoples have been treated as 'inferior peoples', without rights. This occurs because the color of their skin, their languages, their customs, and their ways of working are less valued than those of other peoples." (IIDH. Inter-American Institute of Human Rights. </span><span style="font-family:Arial; text-decoration:underline">Campaña Educativa sobre Derechos Humanos y Derechos Indígenas.</span><span style="font-family:Arial"> San José, 2003, page 19).- Any affirmative action aimed at eliminating that inequality gap is not discriminatory towards those who are not covered by the positive action (special indigenous regulations), for they are not part of that discriminated group and therefore do not require actions to be equalized in rights with respect to the rest of society. This is known as positive discrimination, which is the term given to an action that seeks to establish policies that give a specific social, ethnic, minority group, or one that has historically suffered discrimination due to social injustices, preferential treatment in the access to or distribution of certain resources or services as well as access to certain goods. The objective is to improve the quality of life of disadvantaged groups and compensate them for the harms or discrimination of which they have been victims. The term affirmative action, in this system, refers to those actions (legal, administrative, or practical measures) aimed at reducing or, ideally, eliminating discriminatory practices against historically excluded sectors such as indigenous peoples, an issue that is today a matter of special treatment when balancing the exercise of the collective rights of indigenous peoples and individual rights. Therefore, applying these indigenous regulations does not violate the Inter-American Convention against All Forms of Discrimination, ILO Convention 169 itself, or our Political Constitution regarding private and individual property regulated in Article 45, since an indigenous property right is established and recognized which is governed by special provisions that make its nature distinct from the common right of property and possession, so as not to recognize the plaintiff's occupation as a right of possession, on land where the plaintiff knew beforehand the special conditions that governed it for being within indigenous territory. The plaintiff so acknowledged in the purchase-sale document signed on July 23, 2013 (folio 39), where he expressly indicates that he knows that the property is located in the Cabagra Indigenous Territory, and likewise acknowledged the scope of the Ley Indígena that governs it. The plaintiff entered to occupy the land in question, with full knowledge of the special provisions in the Ley Indígena, that is, the very ones that provide the basis for this ruling indicated above. The appellant's grievance is not admissible when she asserts that the custom of the area must be followed, and that therefore individual property must be recognized, since everyone respects the crops and fences of others, given that it ceased to be collective. The fact that it is customary to violate indigenous territory, with each person (non-indigenous) having individual property, does not mean that the right of this ethnic group has been extinguished, because as already stated when citing Article 3 of the Ley Indígena, the right to this type of property is imprescriptible and inalienable. As a SECOND grievance, the appellant states that the spirit of the agrarian interdict has been left aside, since she managed to prove the facts claimed regarding the disturbance of possession, and the possessing victims of those lands are left in a state of defenselessness, and the doors are opened for acts of violence and abuse to continue by the small group, who must comply with the corresponding obligations in Convention 169 itself in its Article 4, subsection 3, and Article 8, like any Costa Rican citizen, especially since the indigenous territories are part of Costa Rica. As stated above, the plaintiff's occupation cannot be protected as a possession through the interdictal remedy, given that it occurs on land where its use is expressly prohibited for him as he does not belong to the indigenous community (he did not prove belonging to that ethnic group). In this regard, the author Picado Vargas ([Name25]) and Artavia Barrantes ([Name27]), in their work </span><span style="font-family:Arial; text-decoration:underline">Los Interdictos</span><span style="font-family:Arial">, 2nd Ed., Editorial Jurídica Faro, San José, 2017, page 77, state: " </span><span style="font-family:Arial; font-style:italic">Article 6 of the Ley Indígena establishes the exclusivity in the possession of indigenous persons, individually or collectively, over the lands encompassed in the reserves created for these purposes. This possession is of an agrarian type, since the cited rule expressly indicates that 'only indigenous persons may build houses, cut trees, exploit timber resources, or plant crops for their direct benefit within the limits of the reserves.' This rule modifies the presuppositions of interdictal protection. Although the rule in the interdict is not to go into details of matters of registry ownership, due to the specialty of the Ley Indígena, the fact that an interdictal conflict occurs in one of these reserves will directly influence the active and passive standing in the specific case, since one could not protect a possession that a non-indigenous individual claims to have in an area reserved and restricted by law....Therefore, in the opinion of this sector, </span><span style="font-family:Arial; font-style:italic; text-decoration:underline">a non-indigenous person would not have standing for interdictal protection in indigenous reserves because their possession is expressly prohibited by law</span><span style="font-family:Arial; font-style:italic">, since the special possessory protection is also intended for the ancestral condition of our aborigines</span><span style="font-family:Arial">".- Based on the foregoing, the plaintiff did not prove that he met the conditions for active standing, since it was not enough to exercise an occupation, but rather to prove that he was part of the ethnic group to which the indigenous territory, already declared as such, belongs. The appellant indicates that this ethnic group is not native to the place, since they are migrants from Talamanca, and therefore the case resolved in the Inter-American Court of Human Rights is not applicable, because the Mayagna (Sumo) Awas Tingni community of Nicaragua has occupied the same territory since 2000 B.C., unlike the Bribris in that sector. Regardless of the anthropological history of this ethnic group, the fact is that it has been declared an indigenous territory and its nature as such has not been distorted, so it must be respected. Nor does the fact that the families have intermingled as ethnic groups denaturalize the condition of an indigenous territory already declared by law, since what matters for the resolution of this matter is that an occupation by the plaintiff within indigenous territory is not protectable, as that territory is for the exclusive use of the members of that ethnic community. </span></p><p style="margin-top:5.1pt; margin-bottom:5.1pt; text-align:justify; line-height:150%"><span style="width:36pt; display:inline-block">&#xa0;</span><span style="font-family:Arial; font-weight:bold">VI.-</span><span style="font-family:Arial"> As a THIRD grievance, the plaintiff's party states that the most important point in the a-quo's opinion is determining that the plaintiff is not an indigenous person. However, the plaintiff does meet this condition, as he is an indigenous [Name26] with ancestry from his father and grandfather, and therefore has rights as an indigenous person within that territory. She argues it was thus demonstrated in the complaint that it was clearly stated the plaintiff is indigenous, and in the defendants' answer they accept this condition. The complaint is observed, and in the description of the plaintiff's qualifications, it is indicated that he is indigenous, this being the only part of his complaint where he self-identifies as such, without evidentiary support. In the statement of facts of the complaint, he makes no mention of this, so the defendants, in answering each fact, do not refer to any acceptance of the condition of indigenous, as the appellant indicates. Quite the contrary, in the answer visible at folio 97, they indicate that it is they, as indigenous persons, who have the right to that territory for being of the [Name26] ethnic group of the Durwak clan, and refer to the plaintiff as a recognized trader of indigenous lands. Regarding this answer to the complaint, the plaintiff was granted a hearing for a period of three days to refer to it and provide counter-evidence, and he did not do so, as said hearing was not answered and therefore the contested point regarding the plaintiff's condition of not belonging to that indigenous community was not timely objected to. The burden of proof in that regard fell upon the plaintiff and he did not satisfy it in accordance with Article 317 of the Civil Procedure Code, applied supplementarily. It was not up to the a-quo to order evidence in this regard as the appellant claims, given that it is a procedural activity of the party. That omission cannot be remedied by presenting at this instance a document of indigenous recognition, when he should have proven it from the initial stage and did not. Nor is it observed in the testimonies offered by the plaintiff, namely [Name28]</span><span style="font-family:Arial; -aw-import:spaces">&#xa0;&#xa0; </span><span style="font-family:Arial">at folio 151, [Name29]</span><span style="font-family:Arial; -aw-import:spaces">&#xa0;&#xa0; </span><span style="font-family:Arial">at folio 152, and [Name30]</span><span style="font-family:Arial; -aw-import:spaces">&#xa0;&#xa0; </span><span style="font-family:Arial">at folio 153, that they stated that the plaintiff is an indigenous [Name26] belonging to that Indigenous Community. There is no reference to that topic in their statements, therefore the appellant's grievance finds no support when she indicates to this Tribunal that the plaintiff's condition as indigenous is proven by the testimonial evidence received in the case file. As a FOURTH grievance, she indicates that the Organic Law of the Judiciary itself establishes that the official administering justice may not apply laws or other rules that are contrary to the political constitution or to the international or community law in force in the country, but in the appealed judgment, aspects of property are resolved as if it were an ordinary proceeding and it considers that even though it is an indigenous territory, it is governed by the laws of Costa Rica, given that Article 45 of the Political Constitution which protects private property must be respected, and the American Convention on Human Rights in its Article 21 which indicates that no one may be deprived of their property except upon payment of just compensation for reasons of public utility or social interest. As well as the Universal Declaration of Human Rights which in its Article 17 indicates that everyone has the right to own property individually and collectively, and no one shall be arbitrarily deprived of his property, regulations that should not have been set aside by the a-quo, resolving only what serves the defendants, leaving the agrarian activity and the plaintiff's possession in a state of defenselessness. This Tribunal does not share the grievance expressed by the appellant when she indicates that even if it is an indigenous territory, Article 45 of the Constitution regarding the right to private property must be applied. It was already explained at the beginning of the considering part that the right of property in the case of indigenous communities has special characteristics that differ from the common right of property. That such special characteristics respond to policies of positive discrimination to achieve a more equitable society, contributing to the development of those indigenous peoples who have historically been dispossessed and marginalized, given that they are a social group in conditions of vulnerability. Hence, national and international legislation is enacted to eliminate that inequality gap, being special legislation that prevails over the general. In this case, the general is the private property contemplated in the Magna Carta and International Instruments, but through special laws of public order, indigenous property is created with characteristics of inalienability and imprescriptibility, being unavailable to non-indigenous third parties outside the community, its application as special regulations being mandatory. If the plaintiff considers that compensation must be provided through just payment, that process is not appropriate for this type of proceeding whose nature is summary. Regardless of the substantive right regarding possession and/or property, which is certainly subject to analysis with greater detail in an ordinary proceeding, what was relevant for the resolution of this interdict is the matter of the plaintiff's active standing, who, by occupying land where there is a prohibition against doing so, does not become entitled to interdictal protection, and in this sense the a-quo resolved, without it being relevant to analyze the passive standing. As a FIFTH grievance, the appellant makes theoretical statements about the requirements that judgments must meet, such as that they must be congruent, maintaining correlation between what is requested and what is resolved, resolving all points submitted for debate, making an evaluation of the evidence in accordance with sound rational criticism, analyzing the evidence received and reasoning the grounds for the decision. She argues that great defenselessness is caused by the incongruence. However, the appellant does not make specific reference to the reasons why she considers these situations occur; she does not point out which parts of the judgment contain such deficiencies, or which specific points were left unresolved. As this grievance is a theoretical statement, it is impossible to analyze the aspects to which it refers, as she does not specify. The SIXTH grievance refers to the violation of Article 317 of the Civil Procedure Code, considering that she has satisfied the burden of proof by demonstrating that he was the possessor who was disturbed by the defendants as was shown through the testimonial evidence. Said rule has not been violated, as it is considered that it was not applied by the plaintiff, who omitted to prove that he held a right within indigenous territory, since the condition he claims to have was not proven in the case file; on the contrary, he remained silent when the defendants introduced that fact as part of the controversy when answering the complaint, by affirming that only they have the right as indigenous persons to remain on those lands, and not the plaintiff who is a trader of indigenous lands. The plaintiff remained silent in the face of this defense by the defendants, thereby failing to comply with the cited Article 317 ibid. Based on the foregoing, on what has been the subject of appeal, the appealed judgment is confirmed. - </span></p><p style="margin-top:5.1pt; margin-bottom:5.1pt; text-align:center; line-height:150%"><span style="font-family:Arial; font-weight:bold">POR TANTO: </span></p><p style="margin-top:5.1pt; margin-bottom:5.1pt; text-align:justify; line-height:150%"><span style="width:36pt; display:inline-block">&#xa0;</span><span style="font-family:Arial">The evidence offered for better resolution is rejected.- The judgment is confirmed on what has been the subject of appeal.

**EXP: EXPN1** **II Circuito Judicial San José, [Dirección1] , , [Dirección2] de Goicoechea frente al parqueo del Hospital Hotel La Católica Teléfonos: [Telf1]. Fax: [Telf2] ó [Telf3]. Correo electrónico: [...]**

VOTO N° 648-F-18 TRIBUNAL AGRARIO. SEGUNDO CIRCUITO JUDICIAL DE SAN JOSÉ.- A las dieciséis horas y cuarenta y cinco minutos del trece de julio de dos mil dieciocho.- PROCESO INTERDICTAL interpuesto por [Nombre1] , mayor, viudo, agricultor, vecino de Cabagra de Brunka de Buenos Aires de Puntarenas, cédula de identidad número CED1 - - ; contra [Nombre2] , cédula de identidad número CED2 - - ; [Nombre3] , cédula de identidad número CED3 - - ; [Nombre4] , cédula de identidad número CED4 - - ; [Nombre5] , cédula de identidad número CED5 - - ; [Nombre6] , cédula de identidad número CED6 - - ; [Nombre7] , cédula de identidad número CED7 - - ; [Nombre8] , cédula de identidad número CED8 - - ; [Nombre9] , cédula de identidad número CED9 - - ; [Nombre10] , cédula de identidad número CED10 - - ; [Nombre11] , cédula de identidad número CED11 - - ; [Nombre12] , cédula de identidad número CED12 - - ; [Nombre13] , cédula de identidad número CED13 - - ; [Nombre14] , cédula de identidad número CED14 - - ; [Nombre15] ; cédula de identidad número CED15 - - ; [Nombre16] , cédula de identidad número CED16 - - ; [Nombre17] , cédula de identidad número CED17 - - ; [Nombre18] , cédula de identidad número CED18 - - ; [Nombre19] , cédula de identidad número CED19 - - ; [Nombre20] , cédula de identidad número CED20 - - ; [Nombre21] , cédula de identidad número CED21 - - ; [Nombre22] , cédula de identidad número CED22 - - ; y contra [Nombre23] , cédula de identidad número CED23 - - . Interviene en el proceso la Asociación de Desarrollo Integral de Reserva Indigena de San Rafael de Caragra de Buenos Aires, cédula jurídica CED24 - - , representada por su presidente [Nombre24] , mayor, educador, vecino de Buenos Aires, cédula de identidad número CED25 - - . Actúan en el proceso como apoderada especial judicial de la parte actora la licenciada Thais Vidal Navarro, mayor, soltera, abogada, vecina de Puntarenas, cédula de identidad número CED26 - - ; y como abogados directores: de los demandados el letrado Ricardo Araya Piedra, colegiado dieciocho mil novecientos dieciocho, y de la Asociación el letrado Hugo Lazaro Estrada, carné veinte mil setecientos ochenta y seis. Tramitado ante el Juzgado Agrario de Buenos Aires.- R E S U L T A N D O:

1.- La parte actora planteó proceso interdictal, estimado en la suma de cinco millones quinientos mil colones para que en sentencia se declare: "...1.- Con lugar el interdicto de Amparo de Posesión Agraria y Se les ordene a los demandados abstenerse de perturbar la posesión del suscrito, retirarse de la colindancia, amenazar, realizar quemas, corte de cercas, acercarse a la colindancia o ingresar de algún modo a la propiedad del suscrito. Así mismos no agredir, amenazar o intimidar al demandado sus peones y testigos del presente proceso bajo el apercibimiento de que en caso contrario será juzgado por el delito de desobediencia a la autoridad. 2.- Que se le condene en daños y perjuicios ocasionados, así como al pago de ambas costas de esta acción," (folios 45 al 55).- 2.- Los accionados fueron debidamente notificados de la demanda planteada en su contra, y dentro del plazo de ley contestaron negativamente la presente acción, oponiendo las excepciones de falta de legitimación del actor y falta de derecho, (folios 97 al 101).- 3.- El juez Jean [Nombre25] Céspedes Mora, del Juzgado Agrario de Buenos Aires, mediante sentencia número 01-2017 de las catorce horas y cincuenta y siete minutos del once de enero de dos mil diecisiete, resolvió: “POR TANTO: De conformidad con lo expuesto, hechos tenidos por probados, análisis expuesto, citas legales y jurisprudenciales de comentario se acoge la excepción de falta de derecho que interponen los demandados. En consecuencia se DECLARA SIN LUGAR EN TODOS SUS EXTREMOS la presente demanda interdictal de amparo de posesión que incoa [Nombre1] contra [Nombre2] y otros. Se omite pronunciamiento sobre la defensa de falta de legitimación por innecesario. Se exonera al perdidoso del pago de costas," (Ver Escritorio Virtual del Juzgado Agrario de Buenos Aires, en Documentos Asociados, archivo del 11/1/17 de las 14:57:00 p.m.).- 4.- La licenciada Thais Vidal Navarro, apoderada especial judicial del actor [Nombre1] , interpuso recurso de apelación con indicación expresa de las razones en que se apoyaron para refutar la tesis del juzgado de instancia, (Ver Escritorio Virtual del Juzgado Agrario de Buenos Aires, en Bandeja de Escritos, archivo del 03/2/17 de las 8:20:34, imágenes 3 a la 12).- 5.- En la substanciación del proceso se ha observado las prescripciones legales, y no se da la existencia de errores u omisiones capaces de producir la nulidad del fallo.- Redacta la Jueza Alvarado Paniagua, y;

CONSIDERANDO:

I.- La parte actora junto con el recurso de apelación, aporta un escrito titulado "Documento de reconocimiento indígena", donde se indica el señor [Nombre1] , es indígena Bribrí. El mismo no es de recibo a esta altura procesal. Cuando los demandados contestan la demanda a folio 97, indican tener su derecho sobre el área en conflicto y no el actor, dado que ellos son indígenas bribris y su actuar es al amparo de recuperación de tierras de manos de quienes no son indígenas y afirman que el actor es un reconocido comerciante de tierras indígenas, quien adquiere posterior a la declaratoria legal como territorio indígena. (Ver folio 98).- Sobre esta controversia planteada en la contestación de demanda, el a-quo otorga la audiencia por tres días a la parte actora para que se refiera a la misma (ver resolución de folio 134), sin que el señor [Nombre1] , presentara contraprueba alguna. Era en este momento procesal, la oportunidad de aportar y demostrar su condición de indígena [Nombre26] si es que así lo era, pero no lo hizo, ni siquiera contestó dicha audiencia. Aceptar en segunda instancia el documento aquí ofrecido, es subsanar la omisión de aportar prueba en este sentido en el momento procesal correspondiente. Hacerlo es producir un desequilibrio entre las partes, pues la prueba para mejor resolver no es con la finalidad de subsanar las probanzas que no se ofrecieron en su oportunidad, siendo responsabilidad de la parte y su letrado presentarlas en la etapa procesal que correspondía y no lo hizo. Por lo expuesto, no se admite dicha prueba, de conformidad con los artículos 517 inciso 7, 522 y 536 del Código de Trabajo reformado la nueva Ley Procesal Laboral de aplicación supletoria a la materia agraria por disposición del artículo 26 de la Ley de Jurisdicción Agraria.- II.- Este Tribunal comparte la relación de hechos tenidos por demostrados en el fallo recurrido, al ser fiel reflejo de lo acaecido en autos.- III.- Para la decisión de este asunto se tiene como hecho indemostrado lo siguiente: No probó el actor [Nombre1] , ser persona indígena perteneciente a la etnia Bribrí. No hay prueba idónea y oportuna al respecto.- IV.- La apoderada especial judicial del actor, apela la sentencia de las catorce horas cincuenta y siete minutos del once de enero del dos mil diecisiete, argumentando lo siguiente: PRIMERO: No comparte lo expuesto en la sentencia apelada en cuanto afirma prevalece la protección del territorio indígena y que la tutela interdictal como acción judicial es insuficiente frente a estos conflictos, pues prevalece la colectividad de la tierra y su carácter comunal. Considera el a-quo omite que pese a la norma citada el mismo convenio número 169 de la OIT, salvaguarda los derechos con que cuentan los seres humanos independientes de su etnia, color o raza. Desviste de su condición de indígena y de ser humano al actor para únicamente indicar que quienes tienen derechos son los indígenas demandados, de forma que incurre en un fallo contradictorio a los Derechos Humanos reconocidos y ratificados por Costa Rica en el sentido que restringir ese derecho basado únicamente en su etnia es una acción que incurre en discriminación máxime al indicar que el actor no pertenece a la etnia [Nombre26] por lo que no puede ostentar derechos. Aduce no se puede amparar el fallo en una sentencia de la Corte Interamericana del caso de la comunidad Mayagna (Sumu) Awas Tigni vrs Nicaragua, pues esa etnia está localizada en Nicaragua desde 2000 ac, y es diferente al caso concreto de la zona sur donde por migración llegaron los Bribris y Cabecares de Talamanca, Teribes de Panamá, siendo que los únicos originarios son los Borucas, donde existe una convivencia mezclada, y el Estado pretende hacer una segregación por etnia, sin pensar que las familia se encuentran mezcladas entre diferentes etnias. Considera, en la valoración del presente proceso se omite lo anterior, y se hace una dura segregación por etnia, incurriendo en un fallo discriminatorio en contra de todo aquel que no sea Bribri, faltando a la misma Constitución Política, a la Convención Americana contra toda forma de Discriminación, el Convenio 169. Se debe de tomar en cuenta las costumbres de cada pueblo al momento de resover, siendo que cualquier persona que conozca de las diferentes cultura, costumbres y tradiciones puede darse cuenta que desde hace muchos años en todos los territorios de la zona sur las tierras no se comparten en forma colectiva por el contrario son individuales, todas cercadas y predomina el respeto por sus cultivos, productos y bienes, hasta que este grupo inició con lo que llaman recuperaciones de tierras, y si el a-quo tenía dudas, debió contar con un peritaje antropológico como una figura novedosa en Costa Rica. SEGUNDO: Considera se deja de lado el espíritu del interdicto, pues quedó acreditado los hechos de perturbación de los demandados, pero indica el a-quo que por tratarse de un territorio indígena no merece protección y resuelve analizando aspectos de propiedad que no son discutidos dentro de un proceso como el presente, pues lo que se busca es proteger la posesión actual y momentánea, aspecto demostrado y reconocido por el mismo juzgador, pero indicando únicamente los demandados tienen derecho a dichas tierras basándose el ad quo en un supuesto propio sobre la condición de indígena del actor. Indica utiliza el fundamento de legislación nacional e internacional de forma parcializada en favor de los demandados, dejando de lado lo establecido en el mismo Convenio 169 en su artículo 4 inciso 3, así como el último párrafo del artículo 8 en el que claramente indica los indígenas tienen derechos pero deben asumir las obligaciones correspondientes, como cualquier ciudadano, máxime los territorios indígenas son parte de Costa Rica. Considera es grave este fallo por el abuso de este grupo de indígenas minoritario que tomaron la decisión de realizar perturbaciones e invasiones, matanza de animales, quemas, destrucciones en las propiedades que por una u otra razón desean tomar por la fuerza. Con la sentencia impugnada se deja en completo estado de indefensión a las víctimas poseedores de esos terrenos y se le abre las puertas para que se continúe dando todos los hechos de violencia y abuso por parte de estos pequeños grupos, por lo que la sentencia es contraria a derecho nacional como internacional. TERCERO: Aduce desde el escrito de demanda el señor [Nombre1] indica claramente que es indígena, en la contestación de los demandados los mismos aceptan que el actor es indígena, en la recepción de prueba se le consultó a los testigos indicando los mismos el actor es indígena. Aduce, no fue un hecho controvertido si el actor era indígena o no, pues hasta los mismos codemandados lo aceptaron como indígena (ver escrito de contestación). Si el aquo tenía dudas debió haber solicitado la prueba en este sentido, pues el actor es de ascendencia Bribrí por su padre y abuelo, por lo que cuenta con sus derechos como indígena dentro de este territorio. CUARTO: En la sentencia impugnada se resuelven aspectos de derecho de propiedad como si se tratara de un proceso ordinario pero no se toma en cuenta la legislación internacional ratificada por Costa Rica en ese sentido y es que aunque se trate de un territorio indígena el mismo se rige por las mismas leyes de Costa Rica, siendo en nuestro país desde el año 1949 se regula el respeto por la propiedad privada en el artículo 45 Constitucional y artículo 21 de la Convención Americana de Derechos Humanos, que dice: Ningunga persona puede ser privada de sus bienes, excepto mediante el pago de indemnización justa, por razones de utilidad pública o de interés social. Indica en igual sentido el artículo 17 de la Declaración Universal de los Derechos Humanos, regula el derecho de toda persona a la propiedad individual y colectivamente, y nadie puede ser privado arbitrariamente de su propiedad. El a-quo debió valorar también esta normativa y no resolver únicamente con lo que le sirve a los demandados, dejando en estado de indefensión la actividad agraria y la posesión del actor. QUINTO: En este apartado la apelante hace manifestaciones de los requisitos que deben cumplir las sentencias, como el que deben ser congruentes guardando correlación entre lo pedido y lo resuelto, resolver todos los puntos sometidos a debate, haciéndose una valoración de la prueba conforme a la sana críticia racional, analizando la prueba recibida y razonando los fundamentos de su fallo. Aduce con la incongruencia se le produce gran indefensión. SEXTO: Alega violación de ley por falta de aplicación del artículo 317 del Código Procesal Civil, pues ha cumplido con la carga de la prueba de demostrar que el actor ha sido el poseedor indígena dueño del inmueble que sufrió de peturbaciones por parte de los demandados. A manera de conclusión, la apelante indica que el a quo debió tomar en cuenta la totalidad de la prueba obrante en autos, no solo lo que le beneficiaba a la parte demandada, y al no hacerlo se cometió el yerro en declarar sin lugar la presente demanda, incurriendo en el vicio de no resolver todos y cada uno de los puntos que hayan sido objeto del debate, dictando un fallo incongruente con las pretensiones reales del proceso, y violentando la normativa procesal y de fondo citada. (Cfr: escrito de apelación en escritorio virtual 3/2/17 8:20:34 am).

V.- El proceso interdictal de amparo de posesión y restitución, tienen como objeto la tutela de la posesión cuando se es perturbada o despojada. Es una acción de protección a la posesión sobre bienes inmuebles que sean objeto de ser jurídicamente poseídos, en el caso concreto sobre un terreno declarado como territorio indígena. Este tipo de inmuebles tienen características especiales que hacen su naturaleza jurídica sea distinta del resto, siendo de aplicación las leyes especiales que les regulan. Concretamente el artículo 3 de la Ley Indígena, reza: " Las reservas indígenas son inalienables e imprescriptibles, no transferibles y exclusivas para las comunidades indígenas que las habitan. Los no indígenas no podrán alquilar, arrendar, comprar o de cualquier otra manera adquirir terrenos o fincas comprendidas dentro de estas reservas. Los indígenas sólo podrán negociar sus tierras con otros indígenas. Todo traspaso o negociación de tierras o mejoras de éstas en las reservas indígenas, entre indígenas y no indígenas, es absolutamente nulo, con las consecuencias legales del caso. Las tierras y sus mejoras y los productos de las reservas indígenas estarán exentos de toda clase de impuestos nacionales o municipales, presentes o futuros". Esta norma es clara en indicar las tierras comprendidas dentro de territorios indígenas son de uso exclusivo para los miembros de la comunidad indígena de que se trate, es decir, aquella persona que no sea miembro no podrá reclamar tutela a su ocupación, pues su permanencia dentro de dicho territorio no le puede generar derecho alguno, y mucho menos tutela a través de una de las acciones protectoras del derecho de posesión, dado que no es factible un territorio indígena sea ocupado por alguien fuera de esa comunidad, a lo máximo que puede aspirar un ocupante en estas condiciones, es a que le sea indemnizado por expropiación en caso de haber adquirido la propiedad con antelación a la creación del territorio indígena. Esta normativa nacional, tiene consonancia con lo dispuesto en el Convenio 169 de la Oficina Internacional del Trabajo (O.I.T) Sobre Pueblos Indígenas y Tribales en su parte II, Tierras, artículos 13 al 19 y Declaración de las Naciones Unidas sobre los Derechos de los Pueblos Indígenas, en sus artículos 25 al 28, respecto a la especial protección de sus territorios y su uso exclusivo por los miembros de su misma comunidad indígena, y en el caso del actor no demostró ser indígena miembro de la etnia a la que pertenece ese territorio, siendo que la carga de la prueba en este sentido le incumbía a éste, de conformidad con el artículo 317 del Código Procesal Civil de aplicación supletoria a la materia agraria. En su primer agravio, la recurrente indica se hace una discriminación por etnia al resolver este asunto, pues se desviste al actor de su condición de indígena y de ser humano para indicar que los únicos que tienen derechos son los indígenas demandados, por lo que se incurre en fallo contradictorio a los Derechos Humanos, ya que se viola otros instrumentos legales como la Convención Americana contra toda forma de Discriminación. Aduce se desconoce su derecho a la propiedad individual y su trabajo realizado en el terreno en cuestión, pues la costumbre del lugar es que la forma de tenencia de la tierra actualmente es individual, teniendo cada quien sus propios cultivos y cercas, pues ya no se comparten en forma colectiva. Este trato diferenciado para reconocer un territorio indígena y distinguirlo de otras formas del derecho de propiedad, no es discriminatorio como lo afirma la apelante, pues no puede haber desigualdad cuando se toman políticas o medidas tendientes a eliminarla, desigualdad que ha sido sistemática e histórica respecto a grupos vulnerables como lo son los pueblos indígenas. " Los pueblos indígenas ha sido discriminados durante siglos. En otras palabras, los hombres, mujeres, los niños y las niñas, de los pueblos indígenas ha sido tratados como "pueblos inferiores", sin derechos. Esto ocurre porque el color de su piel, sus lenguas, sus costumbres y sus formas de trabajar, son menos valoradas que las de otros pueblos." (IIDH. Instituto Interamericano de Derechos Humanos. Campaña Educativa sobre Derechos Humanos y Derechos Indígenas. San José, 2003, pag 19).- Toda acción afirmativa tendiente a eliminar esa brecha de desigualdad no es discriminatoria respecto a quienes no se vean cobijados por la acción positiva (normativa especial indígena), pues ellos no forman parte de ese grupo discriminado y por ende no requiere de acciones para estar equiparados en derechos respecto al resto de la sociedad. A esto se le conoce como discriminación positiva que es el término que se da a una acción que pretende establecer políticas que dan a un determinado grupo social, étnico, minoritario o que históricamente haya sufrido discriminación a causa de injusticias sociales, un trato preferencial en el acceso o distribución de ciertos recursos o servicios así como acceso a determinados bienes. El objetivo es el de mejorar la calidad de vida de los grupos desfavorecidos y compensarlos por los perjuicios o la discriminación de la que han sido víctimas. El término acción afirmativa, en este sistema, hace referencia a aquellas actuaciones (medidas legales, administrativas o prácticas) dirigidas a reducir o, idealmente, eliminar las prácticas discriminatorias en contra de los sectores históricamente excluidos como los indígenas, cuestión que es hoy en día un asunto de especial tratamiento cuando se pone en la balanza el ejercicio de los derechos colectivos de los pueblos indígenas y lo derechos individuales. Por ello, el aplicar esta normativa indígena, no vulnera la Convención Americana contra toda forma de Discriminación, el mismo Convenio 169 de la OIT o nuestra Constitución Política respecto a la propiedad privada e individual regulada en el artículo 45, pues se establece y reconoce un derecho de propiedad indígena el cual se rige por disposiciones especiales que hacen su naturaleza sea distinta al derecho de propiedad y posesión común, como para reconocer la ocupación del actor como un derecho de posesión, en un terreno donde de antemano el actor sabía las condiciones especiales que le regían por estar dentro de territorio indígena. Así lo reconoció el actor en el documento de compra venta suscrito el 23 de julio del 2013 (folio 39), donde expresamente indica que conoce que la propiedad se encuentra en territorio Indígena Cabagra, así mismo reconoció los alcances de la Ley Indígena que le rige. El actor entra a ocupar el terreno de marras, con conocimiento pleno de las disposiciones especiales en la Ley Indígena, es decir, las mismas que dan fundamento a este fallo indicadas supra. No es de recibo el agravio de la recurrente al indicar debe seguirse la costumbre de la zona, por lo que debe reconocerse la propiedad individual, pues cada quien respeta los cultivos y cercas de otros, siendo que dejó de ser colectiva. El que sea costumbre el vulnerar el territorio indígena, teniendo cada quien (no indígena) propiedad individual, no significa el derecho de ese grupo étnico se haya extinto, pues como ya se dijo al citarse el artículo 3 de la Ley Indígena, el derecho de este tipo de propiedad es imprescriptible e inalienable. Como SEGUNDO agravio, expone la apelante, que se ha dejado de lado el espíritu del interdicto agrario, pues logró acreditar los hechos demandados sobre la perturbación de la posesión, y se deja en estado de indefensión a la víctimas poseedoras de esos terrenos, y se le abre las puertas para que se continúe dando hechos de violencia y abuso por parte del pequeño grupo, quienes deben cumplir con las obligaciones correspondientes en el mismo Convenio 169 en su artículo 4 inciso 3, y 8, como cualquier ciudadano costarricense máxime que los territorios indígenas son parte de Costa Rica. Como se dijo supra, la ocupación del actor no puede ser tutelada como una posesión a través de la vía interdictal, dado que la misma se da sobre un terreno donde es prohibido en forma expresa hacer uso de él al no pertenecer a la comunidad indígena (no demostró pertenecer a esa etnia). En este sentido, el autor Picado Vargas ([Nombre25]) y Artavia Barrantes ([Nombre27]), en su obra Los Interdictos, 2° Ed, Editorial Jurídica Faro, San José, 2017 página 77 dice: " Se establece, en el art. 6 de la Ley Indígena, la exclusividad en la posesión de los indígenas, en forma individual o colectiva sobre los terrenos abarcados en las reservas creadas para esos efectos. Esta posesión es de tipo agraria, pues la norma citada indica expresamente que "solamente los indígenas podrán construir casas, talar árboles, explotar recursos maderables o plantar cultivos para su provecho directo dentro de los límites de las reservas". Esta norma viene a modificar los presupuestos de la tutela interdictal. Si bien la regla en el interdicto es no entrar en pormenores de asuntos de titularidad registral, por la especialidad de la Ley Indígena, el hecho de que un conflicto interdictal acontezca en una de estas reservas va a influir directamente en la legitimación activa y pasiva del caso concreto, ya que no se podría tutelar una posesión de un individuo no indígena alegue tener en una área reservada y restringida por ley....Por ende, a criterio de este sector de opinión, una persona no indígena no estaría legitimada para la tutela interdictal en reservas indígenas pues su posesión se encuentra prohibida expresamente por ley, pues la protección especial posesoria, está destinada también a la condición ancestral de nuestros aborígenes".- Por lo expuesto, el actor no demostró cumplir con las condiciones de legitimación activa, pues no bastaba ser ejercer una ocupación, sino demostrar que era parte de la etnia a la que pertenece el territorio indígena ya declarado como tal. Indica la recurrente, que esa etnia no son originarias del lugar, pues son migrantes de Talamanca, por lo que no es de aplicación el caso resuelto en la Corte Interamericana de Derechos Humanos, pues la comunidad Mayagna (Sumo) Awas Tigni de Nicaragua, ocupan el mismo territorio desde 2000 a.c, no así los Bribris en ese sector. Independientemente de la historia antropológica de esta etnia, lo cierto es que se ha declarado como territorio indígena y no se ha desvirtuado su naturaleza como tal, por lo que debe respetarse el mismo. Tampoco, desnaturaliza la condición de territorio indígena ya declarado por Ley, el que las familias se hayan entre mezclado como etnias, pues lo que interesa para la resolución de este asunto, es que no es tutelable una ocupación del actor dentro de territorio indígena, al ser de uso exclusivo ese territorio por parte de los miembros de esa comunidad étnica.

VI.- Como TERCER agravio, expone la parte actora que el punto más importante a criterio del a-quo es determinar que el actor no es persona indígena. Sin embargo tal condición si la reúne el actor pues es indígena [Nombre26] con ascendencia de padre y abuelo, por lo que tiene derechos como indígena dentro de ese territorio. Aduce así quedó demostrado en el escrito de demanda se dijo claramente el actor es indígena, y en la contestación de los demandados aceptan tal condición. Se observa el escrito de demanda, y en la descripción de las calidades del actor, se indica es indígena, siendo esa la única parte de su demanda donde así lo dice autodeterminándose como tal, sin sustento probatorio. En la relación de hechos de la demanda no hace mención a ello, por lo que los demandados a contestar cada hecho, no hacen referencia a aceptación alguna sobre la condición de indígena, como lo indica la apelante. Todo lo contrario, en la contestación visible a folio 97, indican son ellos como indígenas quienes tienen derecho a esa territorio por ser de la etnia [Nombre26] del clan Durwak, y refieren al actor como un reconocido comerciante de tierras indígenas. Sobre esta contestación de demanda se otorgó audiencia al actor por el plazo de tres días para que se refiriera a la misma y aportara contraprueba, y no lo hizo, pues dicha audiencia no fue contestada y por tanto el punto controvertido sobre la condición del actor de no pertenecer a esa comunidad indígena no fue objetado oportunamente. Le correspondía al actor la carga de prueba en ese sentido y no lo hizo de conformidad con el artículo 317 del Código Procesal Civil de aplicación supletoria. No correspondía al a-quo ordenar prueba en ese sentido como lo afirma la recurrente, dado que es actividad procesal de la parte. No puede subsanarse esa omisión presentando en esta instancia un documento de reconocimiento indígena, cuando debió demostrarlo desde la etapa inicial y no lo hizo. Tampoco se observa en los testimonios ofrecidos por el actor, sea [Nombre28] a folio 151, [Nombre29] a folio 152, y [Nombre30] a folio 153, manifestaran que el actor es indígena [Nombre26] perteneciente a esa Comunidad Indígena. No existe en sus declaraciones referencia alguna a ese tema, por lo que no encuentra sustento el agravio de la apelante al indicar a este Tribunal que la condición de indígena del actor queda demostrada con la prueba testimonial recibida en autos. Como agravio CUARTO indica la misma Ley Orgánica del Poder Judicial establece que no podrá el funcionario que administre justicia aplicar las leyes u otras normas que resulten contrarias a la constitución política o al derecho internacional o comunitario vigente en el país, pero en la sentencia impugnada se resuelve sobre aspectos de la propiedad como si se tratara de un proceso ordinario y considera aunque se trate de un territorio indígena el mismo se rige por las leyes de Costa Rica, siendo que debe respetarse el artículo 45 de la Constitución Política que protege la propiedad privada, y la Convención Americana sobre Derechos Humanos en su artículo 21 que indica ninguna persona puede ser privada de sus bienes excepto el pago de indemnización justa por razones de utilidad pública o de interés social. Así como también la Declaración Universal de los Derechos Humanos que en su artículo 17 indica que toda persona tiene derecho a la propiedad individual y colectivamente, y nadie puede ser privado arbitrariamente de su propiedad, normativa que no debió dejarse de lado por el a-quo resolviendo solo lo que le sirve a los demandados dejando de estado de indefensión la actividad agraria y la posesión del actor. Este Tribunal no comparte el agravio expuesto por la recurrente al indicar que aunque se trate de territorio indígena debe ser de aplicación el artículo 45 Constitucional sobre el derecho a propiedad privada. Ya se explicó al inicio de la parte considerativa, que el derecho de propiedad al tratarse de comunidades indígenas tiene características especiales que se diferencian del derecho de propiedad común. Que tales características especiales obedecen a políticas de discriminación positiva para lograr una sociedad más equitativa contribuyendo al desarrollo de esos pueblos indígenas que han sido históricamente despojados y marginados, dado que son un grupo social en condiciones de vulnerabilidad. De allí se emita legislación nacional e internacional para eliminar esa brecha de desigualdad, siendo legislación especial que prevalece sobre la general, en este caso lo general es la propiedad privada contemplada en la Carta Magna e Instrumentos Internacionales, pero por leyes especiales de orden público se crea la propiedad indígena con características de inalienabilidad e imprescriptibilidad, siendo indisponible para terceros no indígenas ajenos a la comunidad, siendo de acatamiento obligatorio su aplicación como normativa especial. Si el actor considera debe darse la indemnización mediante un pago justo, ese trámite no es propio de este tipo de proceso cuya naturaleza es sumaria. Independientemente del derecho de fondo sobre la posesión y/o propiedad, lo cual es ciertamente de análisis con mayor abundamiento en un proceso ordinario, lo que interesaba para la resolución de este interdicto es lo referente a la legitimación activa del actor, quien al ocupar un terreno donde existe prohibición para hacerlo, no se hace acreedor de tutela interdictal y en este sentido resolvió el a-quo, sin ser relevante analizar la legitimación pasiva. Como QUINTO agravio la impugnante hace enunciados teóricos sobre los requisitos que deben cumplir las sentencias, como el que deben ser congruentes guardando correlación entre lo pedido y lo resuelto, resolver todos los puntos sometidos a debate, haciéndose una valoración de la prueba conforme a la sana crítica racional, analizando la prueba recibida y razonando los fundamentos de su fallo. Aduce con la incongruencia se le produce gran indefensión. Sin embargo, la parte apelante no hace referencia específica a los motivos por los que considera se dan estas situaciones, no señala qué partes de la sentencia contiene tales falencias, o cuáles puntos en específico se dejaron de resolver. Al tratarse este agravio de un enunciado teórico, resulta imposible analizar los aspectos a los que se refiere, pues no puntualiza. El SEXTO agravio es referido a la violación del artículo 317 del Código Procesal Civil, al considerar ha cumplido con la carga de la prueba al demostrar era el poseedor que fue perturbado por los demandados según se demostró con la prueba testimonial. No se ha violado dicha norma, pues se considera la misma no fue aplicada por el actor al omitir demostrar ostentar un derecho dentro de territorio indígena, pues su condición que aduce tener, no fue demostrada en autos, todo lo contrario guardó silencio cuando los demandados introdujeron ese hecho como parte de la controversia al contestar la demanda, al afirmar solo ellos tienen derecho como indígenas a permanecer en esas tierras, y no el actor quien es comerciante de tierras indígenas. El actor guardó silencio ante esta defensa de los accionados, por lo que incumplió con el citado artículo 317 ibídem. Por lo expuesto, en lo que ha sido objeto de apelación, se confirma el fallo recurrido. -

POR TANTO:

Se rechaza la prueba ofrecida para mejor resolver.- Se confirma la sentencia en lo que ha sido objeto de apelación.

*IDB386RFY47U61* [Nombre31] - JUEZ/A DECISOR/A *A1EM5C6CPKK61* [Nombre25] - JUEZ/A DECISOR/A *V78JMVAZJR861* [Nombre32] - JUEZ/A DECISOR/A