Report No. 88 (2011) IACHR. Petition No. 11.745 (Brasil)

• Report Number: 88
• Petition Number: 11.745
• Year: 2011
• Respondent State: Brasil
• Court: Inter-American Comission of Human Rights
• Alleged Victim: 16 indígenas Yanomami
• Case Type: Archive

5

REPORT No. 88/11¹

DECISION TO ARCHIVE

PETITION 11.745
BRAZIL

July 21, 2011

ALLEGED VICTIMS: 16 indigenous Yanomami

PETITIONER: Center for Justice and International Law – CEJIL, Human Rights Watch/Americas, Venezuelan Program for Education and Action in Human Rights – PROVEA, and Office of the Apostolic Vicariate of Puerto Ayacucho

ALLEGED VIOLATIONS: Articles 1.1, 4, 5, 8, 21, 22, 24, and 25 of the American Convention on Human Rights (“the American Convention”)²

INITIATION OF PROCESSING: August 19, 1997

I. POSITION OF THE PETITIONERS

1. The petitioners allege negligence and omission on the part of the Brazilian Government in the massacre of 16 indigenous Yanomami (“the alleged victims”) in June and July 1993 in the Haximú region of Venezuela. The petitioners assert that in two incidents occurring between the months of June and July 1993, Brazilian garimpeiros (miners) murdered 16 indigenous Yanomami in the Haximú region, with victims including the elderly, women, and children. Subsequently, according to the petitioners, in order to escape possible retaliation from the indigenous population, the garimpeiros fled Venezuela through illegal airports in the region and headed to the city of Boa Vista in the Brazilian state of Roraima.

2. According to the petitioners, after the massacre the governments of Brazil and Venezuela signed a bilateral agreement (Comissão Bilateral) in which it was decided that Brazil would take charge of investigating what happened and punishing those responsible. The petitioners indicate that an inspection in the area of the massacre determined that the murders occurred in Venezuelan territory, but because a crime of genocide was involved,³ allegedly perpetrated by Brazilian garimpeiros,⁴ it was agreed that the investigation and prosecution of the Haximú Massacre was under the jurisdiction of Brazilian federal justice.

3. In their last communication submitted on July 16, 2004, the petitioners indicated that 11 years had passed since the Haximú Massacre and no final decision had been reached regarding the remedies under domestic jurisdiction. Based on the above, the petitioners alleged that there is unwarranted delay in reaching a decision in the aforementioned remedies and that the petition was admissible in accordance with Article 46.2.c of the American Convention.

II. POSITION OF THE STATE

4. According to the State, the Federal Public Prosecutor’s Office filed a criminal complaint against seven people for the crime of genocide committed in Venezuela, and the first instance decision published on December 21, 1996 convicted five garimpeiros for the crimes against the 16 indigenous Yanomami, sentencing them to approximately 20 years in prison, and acquitted the other two defendants based on a lack of evidence. The State also maintains that, although the convicted defendants filed appeals, the only remedy that was admitted for review was that of João Pereira de Morais because Brazilian legislation does not allow appeals by fugitive convicts. According to the State, therefore, the first instance decision became res judicata and is final for four of the convicted defendants. The State notes that the Federal Public Prosecutor’s Office also submitted appeals regarding the two defendants who were acquitted.

5. In this regard, the State stresses the complexities involved in the Haximú Massacre due to the circumstances themselves. In this regard, the State refers to the difficulties mentioned in the first instance conviction such as the fact that the crime was committed in the Amazon jungle in an area of Venezuelan territory that is very difficult to access; that the Brazilian authorities only learned what had happened a long time after the massacre; and that Yanomami custom is to burn their dead, making it impossible to include autopsies of the alleged victims in the record. Despite these difficulties, the State emphasizes that its actions made it possible to identify the guilty and convict them in the first instance three years and five months after the massacre occurred.

6. The State reports that the Federal Regional Court issued its second instance decision on the facts of this petition, overturning the first instance decision because the court considered that the facts should have been adjudicated by a jury court since a willful offense against life was involved. The State indicates that based on the above and in order to ensure confirmation of the decision convicting the five garimpeiros, on March 29, 1998 the Federal Public Prosecutor’s Office filed a special appeal with the Superior Court of Justice (“STJ”) and an extraordinary appeal with the Federal Supreme Court (“STF”). According to the State, on September 12, 2000 the STJ issued its decision regarding the special appeal and reaffirmed the competence of the federal judge – and not the jury court – to examine criminal actions regarding the international crime of genocide. The State emphasizes that the STJ made its decision considering that the crime of genocide goes beyond a crime against life since it constitutes a crime against humanity by someone who intentionally seeks to totally or partially destroy a national, ethnic, racial, or religious group. The State indicates that this is based on the United Nations Convention on the Prevention and Punishment of the Crime of Genocide (1948)⁵ as well as Law No. 2.889 of October 1, 1956. Consequently, the State indicates that the STJ recognized that the legal right referred to in this case is not the life of the individual himself but rather the life in common of a group of persons, and in this specific case, that of the indigenous Yanomami.

III. PROCESSING BY THE IACHR

7. On December 6, 1996, the Inter-American Commission received the initial petition submitted by the petitioners. On August 19, 1997, the IACHR forwarded the relevant portions of the complaint to the State. In notes submitted on November 19, 1997 and November 25, 1997, the Inter-American Commission received the Brazilian State’s response to the petition.

8. The IACHR also received additional information from the petitioners on the following dates: June 17, 1997, September 3, 1997, September 16, 1997, January 8, 1998, March 26, 1998, June 30, 1998, April 8, 1999, September 20, 1999, March 1, 2000, and July 16, 2004. Those communications were duly forwarded to the State. In addition, the Inter-American Commission received additional information from the State regarding the petition on the following dates: February 25, 1998, May 27, 1998, August 3, 1998, June 21, 1999, December 27, 1999, and March 1, 2004. Those communications were duly forwarded to the petitioners.

9. On May 3, 2000, the IACHR sent communications to both parties to ascertain whether they were interested in initiating a friendly settlement process regarding this petition. In those communications, the IACHR referred to petition P-11.706 regarding facts “which were complementary to the facts discussed in petition 11.745” filed against the State of Venezuela by the same petitioners. In addition, “for informational purposes,” the Inter-American Commission attached a copy of the friendly settlement signed on December 10, 1999 by Venezuela and the...