REPORT No. 44/15
CASE 12.728
July 28, 2015


On October 16th, 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 (hereinafter "the Commission", "Commission"
or "IACHR") against the Federative Republic of Brazil (hereinafter "the State", "the Brazilian State" or
"Brazil"), for the alleged violations of the right to collective property and to a fair trial and judicial protection,
enshrined, respectively in Articles 21, 8 and 25 of the American Convention on Human Rights (hereinafter
"the American Convention" or "the Convention") in relation with the general obligations to respect the rights
and to adopt provisions in domestic law provided in Articles 1.1 and 2 of the same treaty, to the detriment of
the Xucuru indigenous people and its members, in the city of Pesqueira, state of Pernambuco.
2. The petitioners allege that the State has violated the right to collective property of the Xucuru
indigenous people and its members as a result of the delay in the demarcation of their ancestral land and the
ineffectiveness of the judicial protection intended to guarantee such right, as well as the lack of effective and
accessible judicial remedies. In the merits stage the petitioners included allegations regarding Articles 4 and 5
of the American Convention. In turn, the State argues that the petition is inadmissible because the
administrative process of demarcation of the "Xucuru Indigenous Territory" (Terra Indígena Xucuru), which
initiated in 1989, has formally concluded. On the other hand, the State acknowledges that it has not yet
completed the full removal of non-indigenous occupants. The State alleges that, nevertheless, the process of
demarcation of the Xucuru territory took place in a reasonable timeframe, taking into account the complexity
of the matter and the need to guarantee due process of law to non-indigenous third parties, as well as their to
fair compensation.
3. After analyzing the positions of the parties, the proven facts and the applicable rules, the
Commission concludes that the Brazilian State is internationally responsible for the violation of Article XXIII
of the American Declaration of the Rights and Duties of Man for events up to ratification of the American
Convention by Brazil on 25 September 1992. The Commission also concludes that, since that date, the State is
responsible for the violation of the right to personal integrity, collective property, to a fair trial and judicial
protection established in Articles 5, 21, 8.1 and 25.1 of the American Convention, in relation to the obligations
established in Articles 1.1 and 2 thereof, to the detriment of the Xucuru indigenous people and its members.


4. On October 29, 2009 the Inter-American Commission adopted Admissibility Report No. 98/09
determining that the alleged facts could constitute violations of the rights established in Articles 8, 21, 25, 1.1
and 2 of the American Convention, as well as Articles XVIII and XXIII of the American Declaration of the Rights
and Duties of Man1. On January 6, 2010 the IACHR notified the parties the said report, informed them that the
case had been registered under number 12.728 and, in conformity with Article 37.1 of the Rules in force at
the time, set a deadline of three months for the petitioners to submit additional observations on the merits.
Furthermore, in accordance with Article 48.1.f of the American Convention and Article 37.4 of the Rules then
in force, the Inter-American Commission made itself available to the parties to reach a friendly settlement in
this matter. The parties did not manifest regarding a possible friendly settlement.

CIDH. Report No 98/p09, P4355-02, Admissibility, Xucuru Indigenous People, Brazil, October 29, 2009.

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