34. The Inter-American Commission also considers it pertinent to point
out that --as alleged by the petitioners and not disputed by the State-the judicial appeals that have been filed since 1989 in the course of the
administrative demarcation process have been initiated by third parties
with an interest in the indigenous land, for the purpose of challenging,
obstructing, or annulling the administrative demarcation process. In
other words, these judicial appeals are not filed by the petitioners or the
alleged victims, nor on their behalf. This is the case, for example with
the objection motion (No. 2002.83.00.012334-9), the suit to regain
possession (No. 92.0002697-4), and the suit to annul the administrative
demarcation process (No. 2002.83.00019349-2). Therefore, the InterAmerican Commission will not consider these remedies when
determining whether the requirement for prior exhaustion of domestic
remedies has been met in accordance with Article 46.1.a of the
American Convention.
35.
In short, FUNAI and the Ministry of Justice began the
administrative measures specified in domestic legislation for restoration
of the Xucuru indigenous people’s traditional habitat in 1989, and to
date --20 years later-- the matter has still not been finally settled. The
State has not presented specific and concrete information on particular
circumstances applicable to this case that could justify, for the purposes
of the admissibility ruling, the aforementioned length of time without
finalizing the administrative demarcation process. Taking into account
the circumstances of the present petition, the IACHR considers that the
time elapsed since the start of the administrative process greatly
exceeds what would be reasonable, in order to ensure the basic rights of
the Xucuru indigenous people. Therefore, the IACHR considers that
there has been unwarranted delay in the pertinent administrative route,
i.e., the administrative demarcation process, so the exception
established in Article 46.2.c of the American Convention is applicable. 9
36. It must also be noted that applying the exceptions to the rule for
exhaustion of domestic remedies of Article 46.2 of the American
Convention is closely linked to determining possible violations of certain
rights established in that international instrument, such as the
guarantees of access to justice. Nonetheless, Article 46.2 of the
American Convention, by its nature and purpose, has its own
autonomous content vis á vis the substantive norms of that international
9 See, mutatis mutandi, IACHR. Report N° 11/03, Admissibility, P 0326, Xakmok Kásek
Indigenous Community, Paraguay, February 20, 2003, para. 38; and Report N° 12/03,
Admissibility, P 0322/2001, Sawhoyamaxa Indigenous Community of the Enxet People,
Paraguay, February 20, 2003, para. 45.
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