Report No. 98 (2009) IACHR. Petition No. 4355-02 (Brasil)

• Report Number: 98
• Year: 2009
• Petition Number: 4355-02
• Case Type: Admissibility
• Court: Inter-American Comission of Human Rights
• Respondent State: Brasil
• Alleged Victim: Pueblo Indígena Xucur

REPORT No. 98/09 PETITION 4355-02 ADMISSIBILITY XUCURU INDIGENOUS PEOPLE BRAZIL October 29, 2009 I. SUMMARY 1. On October 16, 2002, the Movimento Nacional de Direitos Humanos/Regional Nordeste [National Human Rights Movement/Northeast Region], the Gabinete de Assessoria Jurídica às Organizações Populares – GAJOP [Legal Advisory Office for Popular Organizations] and the Conselho Indigenista Missionário – CIMI [Missionary Indigenist Council] (hereinafter "the petitioners"), lodged a petition with the Inter-American Commission on Human Rights (“the Inter-American Commission” or “the IACHR”) against the Federative Republic of B. (“the S." or “B.”) for alleged violations of the rights to property, to a fair trial, and to judicial protection guaranteed, respectively, in Articles 21, 8, and 25 of the American Convention on Human Rights (“the American Convention"), in connection with the general obligations to respect the rights and adopt provisions in domestic law specified in Articles 1.1 and 2 of the same treaty, to the detriment of the X. indigenous people and its members (“the alleged victims”), in the city of P., state of Pernambuco. 2. The petition alleges the denial of the right to property of the X. indigenous people because of the delay in demarcation of their ancestral land, as well as the lack of judicial protection to guarantee their right to property. According to the petitioners, the process of drawing of boundaries, marking, and titling of X. indigenous land began in 1989 and is still not finished as of this date, due to actions filed by third parties with support of the S.; the delay of the executive and judicial branches in resolving the administrative and judicial appeals they filed; changes in the rules and administrative procedures for demarcation in presidential decrees; and the ineffectiveness of the procedure for protecting the land rights of the indigenous peoples. The petitioners allege that as of this date the X. indigenous people occupies less than half of their land, while the rest is occupied by non-indigenous, which leads to frequent conflicts between the two groups. 3. T.S. submits that domestic remedies in this case have not been exhausted, and accordingly that the petition is inadmissible for failure to satisfy Article 46.1 of the American Convention. T.S. submits that the administrative demarcation procedure begun in 1989 has progressed satisfactorily and within a reasonable period of time; it also indicates that the right of the X. indigenous people to their land has been recognized by a ministerial decision (Portaria) of the Ministry of Justice in 1992, with the physical drawing of boundaries of the area finished in 1995; and that the ministerial decision was ratified by a presidential decree on A.3.0, 2001. With respect to the titling of the X. indigenous land by registry in the appropriate organ, the S. points out that it is pending because of a suit (Ação de Suscitação de Dúvidas) filed by the property registrar of the city of P. in the P.S.C.. H., it notes that on August 9, 2002, the federal government intervened in that action, and removed it to the federal courts because it is an indigenous matter and therefore corresponds to the federal jurisdiction. According to the S.’s response on February 20, 2004, the matter was awaiting a decision by the federal judge. Concerning the removal of the non-indigenous from the demarcated territory, the S. indicates that it has paid compensation to 296 occupants, and that payment is pending to another 183. T.S. submits that payment of compensation is expected to be completed in the second half of August 2009, and then the non-indigenous occupants will be removed in order to normalize the situation denounced in the petition. 4. A. examining the positions of the parties in the light of the requirements for admissibility established in Articles 46 and 47 of the American Convention, the Inter-American Commission decides to declare the case admissible with respect to Articles 8, 21, and 25 of the American Convention, in connection with the general obligations set forth in Articles 1.1 and 2 of that international instrument. In addition, based on the iura novit curia principle, the Inter-American Commission declares the petition admissible as regards a possible violation of Articles XVIII and XXIII de the American D. of the Rights and Duties of Man (“the American D.”). Therefore, the Inter-American Commission decides to notify the parties, publish the report, and include it in its Annual Report. II. PROCESSING BY THE COMMISSION 5. The Inter-American Commission received the initial petition submitted by the petitioners on October 16, 2002. On November 5, 2003, the IACHR transmitted the pertinent parts of the petition to the S. and gave it two months to submit observations. On February 20, 2004, the Inter-American Commission received the S.’s response to the petition. 6. The IACHR received additional information from the petitioners on November 14, 2007, A.3., 2008, October 27, 2008, J. 10, 2009, and September 3, 2009. It duly forwarded these communications to the S.. The Inter-American Commission received additional information from the S. regarding the petition on J. 23, 2009. That communication was duly transmitted to the petitioners. P. measures 7. On the same date that they submitted the petition, October 16, 2002, the petitioners requested precautionary measures to protect the life and person of the chief of the X. indigenous people, M.L. de A. (“Cacique Marquinhos”) and his mother, Z.M. de A., because both had received several death threats. On October 29, 2002, the IACHR decided to grant precautionary measures on behalf of Cacique Marquinhos and Z.M. de A., and asked the S. to take all necessary measures to protect their life and person and to begin immediately a serious and exhaustive investigation of the facts that gave rise to the precautionary measures. D. its 117th regular period of sessions, on February 27, 2003 the IACHR held a public hearing on the implementation of these precautionary measures. S., on M. 1, 2004, the IACHR held a working meeting to follow up on these precautionary measures, in the course of its 119th regular period of sessions. 8. T.S. submitted additional information on the precautionary measures granted by the IACHR on January 23, 2003, February 19, 2003, M. 12, 2003, A.1., 2003, and J. 15, 2003. T. communications were duly forwarded to the petitioners. The petitioners sent additional information on the situation of the persons covered by the measures on the following dates: November 12, 2002, December 6, 2002, February 4, 2003, February 7, 2003, February 14, 2003, M. 21, 2003, A.4., 2003, April 23, 2003, J. 22, 2003, and May 21, 2004. These communications were transmitted to the S.. 9. Based on information provided by each of the parties, the IACHR decided to extend the precautionary measures in the same terms on August 1, 2003, and May 19, 2004. L., the Inter-American Commission notes that it requested additional updated information on the situation of the beneficiaries from both parties on November 13, 2006, August 28, 2007, and November 2, 2007. The petitioners provided updated information on the situation of the beneficiaries on November 14, 2007, and M. 28, 2008. On November 26, 2007, and April 24, 2008, the IACHR repeated its request to the S. for updated information. H., the S. has not replied to date. III. POSITIONS OF THE PARTIES A. Position of the petitioners 10. The petitioners say the X. indigenous people are considered a model for the indigenous peoples of Northeastern B. because of the process of reasserting its indigenous identity and reclaiming its ancestral lands. 11. According to the petitioners, B.’s 1988 Constitution stipulates that land traditionally occupied by indigenous peoples is federal property; that their original ownership of ancestral lands is recognized, and they are guaranteed permanent “possession” of said lands. In addition, Law No. 6001 of September 19, 1973 (“S. of the Indigenous”), has similar provisions regarding the right of indigenous peoples to their ancestral lands, and provides for demarcation of indigenous lands through an administrative process, in accordance with the procedure established by an executive branch decree. 12. The petitioners explain that the administrative demarcation process involves the following stages: a) identification and drawing of boundaries; b) response by interested third parties; c) decision of the Ministry of Justice; d) ratification by presidential decree; and e) registration of the indigenous land. The process also provides that if non-indigenous are on the indigenous land after the decision by the Ministry of Justice, they will be removed expeditiously. 13. In the case of the X. indigenous peoples lands, the petitioners indicate that the administrative demarcation process began in 1989, after pressure from the people led by their chief at the time, C.X.. According to the petitioners, in the identification and drawing of boundaries stage the technical group of the National Indigenous Foundation (FUNAI) issued an identification report on September 6, 1989, that said the X.s had the right to 26,980 hectares. The next step was completed on May 29, 1992, with the publication of Ministerial Decision no. 259 of the Ministry of Justice. At that time the procedure was regulated by Decree no. 22/91, and according to the petitioners, a majority (about 70%) of the X. indigenous land was occupied by non-indigenous. H., the petitioners submit that the non-indigenous were not removed, contrary to the rules then in force. The petitioners note there was no progress in the demarcation between 1992 and1995, because of various administrative measures. They further state that the process was even...