C

Commissioners: Felipe González, James L. Cavallaro, José de Jesús Orozco Henríquez, Emilio Álvarez Icaza (Executive Secretary)

Petitioners: Justiça Global / Justiça nos Trilhos / Sociedade Paraense de Defesa de Direitos Humanos / Asociación Interamericana para la Defensa del Ambiente (AIDA) / International Rivers / Terra de Direitos

State: Brazil

Petitioners representing various Brazilian human rights groups presented their concerns before the Inter-American Commission on Human Rights (IACHR) regarding indigenous and traditional groups’ access to due process rights in light of the suspension of judicial decisions in Brazil. In their March 28th thematic hearing, Petitioners described circumstances in which the Brazilian government suspended judicial decisions in favor of mega projects and developments such as railroads and dams. Petitioners asserted that the process of suspending judicial decisions puts the judicial branch at the service of the executive branch and denies justice for groups the State has traditionally discriminated against.

Petitioners described a State plan to expand a railroad, which would affect 1.7 million people, including urban and rural indigenous populations. In 2012, a judge issued injunctive relief halting railroad construction, but the decision was suspended based on the premise that it would have negative economic effects. Petitioners described problems stemming from the expansion of the railroad, including excessive noise, damage to buildings as a result of railroad vibrations, and the death of persons and livestock. Furthermore, according to the Petitioners, families and villages have been moved to accommodate the railroad expansion and, thus far, the government has failed to provide any reparations. Petitioners further asserted that the expansion was done without consulting local communities and that the businesses involved in the railroad spy on and terrorize the communities.

Additionally, Petitioners described damage to the sacred Sete Quedas (Seven Waterfalls) region because of dams built on several rivers. In 2012, a federal judge suspended dam construction on the Tapajós River, a decision that was also suspended. Petitioners claim that the Brazilian government sends in researchers with federal troops to survey potential sights and conduct environmental impact studies without consulting local groups, which Petitioners consider tantamount to a declaration of war. Petitioners call on the State to recognize and respect their territory, sacred locations, and cemeteries.

Petitioners asserted that suspending judicial decisions violates Articles 8 and 25 of the American Convention on Human Rights (ACHR). Article 8 protects the right to a fair trial and Article 25 protects the right to judicial protection. Additionally, Petitioners lament that a motion to suspend can only be used by the State, and not by individual parties, thereby creating inequality in the judicial system.

The State responded by affirming Brazil’s commitment to the democratic rule of law and the Federal Constitution of 1988. The State noted that judicial suspensions are not exceptional, but part of the 1936 Constitution. The State further claimed that judicial suspension was compatible with the ACHR as a precautionary motion whereby the judicial decision was suspended until a complete evaluation could be made to ensure economic and public security. The State emphasized that this procedural process was collegial and that minority groups as well as the government could use this process to ensure their rights were protected (a claim Petitioners disagreed with). State attorneys compared the process to recurso de amparo, a remedy for protecting certain individual rights. The State also compared the system to the common law system of administrative decisions, which the State noted was more restrictive because administrative decisions cannot be challenged through the judicial system.

Commissioner José de Jesús Orozco Henríquez reiterated that Inter-American standards are not only about access to justice but also to ensure that Articles 8 and 25 are upheld and that justice is implemented based on the merits of each case. Commissioner James L. Cavallaro noted that it is not the Commission’s position to assess the constitutionality of any domestic measure and that each country should have the space to define remedies for domestic procedures but asked the parties to submit information elaborating on instances in which an individual could submit relevant arguments after injunctive relief is suspended.