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

Submitters: Justiça Global Justiça on Rails  /  Sociedade for Defense of Human Pará Direitos  / Interamerican Association for Environmental Defense  (AIDA) /  International Rivers  /  Terra Direitos

Country: Brazil

Petitioners representing several Brazilian human rights groups were presented to the Inter-American Commission on Human Rights (IACHR) to express their concerns regarding access to due process of law by indigenous groups in view of the suspension of court decisions in Brazil. In the thematic hearing on March 28, the Petitioners described the circumstances under which the Brazilian government has suspended court decisions in favor of mega-projects and developments, such as railways and dams. The petitioners stated that the suspension of judicial decisions the judiciary makes the service of the executive branch, and denies justice to those groups that have traditionally been victims of government discrimination.

The petitioners described the existence of a state plan to expand a railway line, affecting 1.7 million people, including urban and rural indigenous groups. In 2012, a judge issued an injunction against the construction of a railroad, but the decision was suspended under the premise that the order would have adverse economic effects. The petitioners described some of the problems arising from the expansion of the railroad, including excessive noise, damage to buildings due to vibration of the trains, and the death of people and livestock. Furthermore, according to the petitioners, large families and villages have been displaced to accommodate the expansion of the railroad, and so far the government has not provided any repairs. The petitioners also asserted that the expansion was done without consulting local communities and companies involved in building the railway spying against communities and terrorize.

Additionally, the Petitioners described the damage done to the sacred region of Quedas Sete (Seven Falls) because of dams built in several rivers. In 2012, the decision of a federal judge to suspend the construction of a dam on the Rio Tapajós was also suspended by the government. The Petitioners allege that the Brazilian government sent federal troops researchers to inspect possible sites and conduct environmental impact studies without consulting with local groups, the petitioners actions amount to a declaration of war. The petitioners asked the State to recognize and respect their territory, sacred places and cemeteries.

The petitioners stated that the suspension of judgments 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. The petitioners complain that the suspension motions can only be used by the State, not the individual parts, which creates inequality in the justice system.

The State responded by saying Brazil’s commitment to democracy and the 1988 Constitution. The state court noted that suspensions are not exceptional, and as part of the 1936 Constitution. The State also argued that the judicial stay was consistent with the ACHR as a precautionary motion through which judicial decisions are suspended until economic evaluations and ensuring public safety can be made. The State emphasized that this process was collegial and that both minority groups and the government could use this process to ensure the protection of their rights, but the petitioners differ from this claim. State Bar compared the process to amparo , a remedy to protect certain individual rights. The State also compared the current system to the common law system of administrative decisions, the State indicated that it was more restrictive because management decisions can not be challenged through the court system.

Commissioner José de Jesús Orozco Henríquez reiterated that inter-American standards are not just access to justice, but also ensure that Articles 8 and 25 are sustained and that Justica is implemented in each case depending on the merits. Commissioner James L. Cavallaro noted that the Commission should not evaluate the constitutionality of internal measures of countries, and each country should have enough space to define their own solutions to their domestic procedures but asked the parties to submit information developed when an individual may submit arguments against suspending a cautelaria measure.