Official Communication JG/RJ n^o.***/10

                                                                       

                                                                                                Rio de Janeiro, *** of 2010

 

Mr. James ANAYA

UN Special Rapporteur on the situation of Human Rights and fundamental freedoms of the Indigenous Peoples

 

Mr. Manfred NOWAK

UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment

 

Ms. Margareth SEKAGGYA

UN Special Rapporteur on the situation of Human Rights Defenders

 

Messers. El Hadji Malick SOW,  Shaheen Sardar ALI,  Roberto GARRETON, Vladimir TOCHILOVSKY , Mads ANDENAS

Working Group on Arbitrary Detention

 

Office of the High Commissioner for Human Rights

The United Nations (UN)

CH-1211

Geneva, Switzerland

 

 

Via electronic mail: [email protected].

 

Ref: Information about illegal arrest of indigenous leader of the Tupinambá people and about five Tupinambá indigenous people, victims of torture caused in an operation of repossession carried out by Federal Police agents, state of Bahia, Brazil.

Esteemed Special Rapporteurs,

The Indigenous Missionary Council (CIMI) and Global Justice hereby provide information about the illegal arrest of Rosivaldo Ferreira da Silva, Cacique Babau, on March 10, 2010, and the torture suffered by Tupinambá indigenous people  – Ailza Silva Barbosa, Alzenir Oliveira da  Silva, Calmerindo Batista da Silva, Mário Oliveira Barbosa, José Otávio de Freitas, on June 2, 2009, in the state of Bahia.

Arrest and assault of Indian leader and human rights defender Cacique Babau in March of 2010
In the early morning hours of March 10, 2010, five federal police, heavily armed, broke into and invaded the home of Rosivaldo Ferreira da Silva, Cacique Babau, in the Tupinambá community of Serra do Padeiro, state of Bahia. The arrest warrant was not presented by the police. According to his family, at the time of his arrest, Babau was violently assaulted and threatened with death. The police used extreme physical force to immobilize the Cacique who believed he was facing gunmen, because the agents were camouflaged, with their faces painted black, did not identify themselves and did not present an arrest warrant, in addition to voicing threats and curses. Several pieces of furniture in the house were broken. For the community, through the conduct of the police the impression that remained was the sense that they intended to take Babau without anyone knowing, in that they acted during the pre-dawn hours and after entering the house, closed the door.

The action of the Federal Police occurred around 2:40 in the morning, though the agents only arrived with Babau at the police precinct of the municipality of Ilhéus between 6:30 and 7:00 in the morning. In his deposition, he said that the police had stopped for food at a place known as "Posto Flecha" and at another place, where there were trucks and deactivated winches to await sunrise and to be able to justify the arbitrary action they had conducted.

 
On March 11, an anthropologist from the Ministério Público Federal visited Cacique Babau in the prison and said the leader was limping with his right eye swollen, experiencing pain in the hip and had not received medical attention. Despite this, the superintendent of the Federal Police in Bahia, José Maria Fonseca, said the Cacique would have had a forensic examination and no sign of torture or ill treatment in prison was indicated^[1]. 

On March 12, a committee formed by the undersecretary of promotion and defense of human rights, Perly Cipriano; the director for defense of human rights, Fernando Matos of the Special Secretariat for Human Rights of the Presidency of the Republic; state representatives Yulo Oiticica and Bira Coroa and a representative of the Secretary of Justice of the state of Bahia tried to visit Cacique Babau in the superintendencia of the Federal Police^[2].  Arriving there, they were informed by the Regional Delegate José Maria Fonseca who had already been petitioned for new preventive arrest against the leader and stated: "He is not going to leave here"^[3]. The group was prevented from visiting Cacique Babau. The Superintendent of the Federal Police of Bahia only authorized Perly Cipriano and Fernando Matos, SEDH / PR, to visit the leader^[4].

 
Givaldo Ferreira da Silva, brother of Babau, was arrested on March 20, by unidentified agents of the FP on a public thoroughfare.

There are now eight police inquiries of the Federal Police of Ilhéus, in which Cacique Babau is being investigated^[5]. The Ministério Público Federal and the National Foundation for Indigenous Affairs (FUNAI) filed for habeas corpus soliciting the immediate release of the leader. One of these was unknown by the 3^rd Jurisdiction of the Federal Regional Tribunal (TRF) in the 1^st  Region in 1.6 HC n^o. 0017707-64.2010.4.01.0000), which is the court that will judge all HCs. Two are at the point of being decided, that of n^o. 0014723-10.2010.4.01.000, authored by Funai – which is also convinced that the allegations incriminating Babau have no foundation to justify his arrest – and n^o. 0017705-94.2010 .4.01.0000 ^[6], authored by MPF / Bahia that also benefits Givaldo and the others. A fourth HC (0013864-91.2010.4.01.0000), also authored by MPF / BA is under analysis by the Regional Prosecutor of the Republic for an opinion.

However, on April 20, one of the injunction petitions was denied and Babau remains detained in the maximum security unit of Mossoró-Pernambuco^[7].

Transfer of Cacique Babau to maximum security prison
The Cacique Rosivaldo Ferreira da Silva ("Babau") and his brother, Givaldo Jesus da Silva, in preventive detention pending decision by federal judge Pedro Holliday, of Ilhéus, were transferred on April 16 to the federal penitentiary in Mossoró, Rio Grande do Norte. The Federal Police in Salvador, where both were being held, feared demonstrations against his incarceration, with protests against the continued imprisonment of Babau and Givaldo, requiring transfer, which was granted by the judge, despite the contrary opinion of the MPF/BA.

The Federal Maximum Security Prison of Mossoró houses 83 inmates from other jails in the country, accused of narcotics trafficking, conspiracy, homicide and assault, among other crimes, and is more than two thousand kilometers from the Tupinambá Lands in the South of the state of Bahia. Babau and Givaldo are not condemned, but respondents in investigations triggered by complaints from farmers and others who oppose the demarcation of the Tupinambá territory. Even the Ministério Público Federal denies the imputation of the accusations against them – and other Tupinambá leaders – by the Federal Police, and have filed three habeas corpus to free them. FUNAI, in the habeas corpus filed on behalf of Babau, insists on compliance with the sole paragraph of Article 56 of Law No. 6.001/73, the Indian Statute, which allows for indigenous persons to remain at the disposition of the court at the Funai post closest to the indigenous land of origin.
The transfer of these two important indigenous leaders of the country to a maximum security federal prison constitutes one more authoritarian action by the Federal Police and reinforces the conviction that such arrests are eminently political in nature, seeking the criminalization of defenders of human rights. The transfer of Babau and Givaldo occurred on the eve of April 19, the date on which the Day of the Indian is commemorated in Brazil, to clearly prevent any expression of support for the leaders and to humiliate the President of the Republic, who on that that date was to have been in Salvador, participating in the 12^th UN Congress on Crime Prevention and Criminal Justice.

Torture of five indigenous persons in May of 2009
On May 26 of 2009, the Tupinambá people retook possession of their traditional territory, recognized by the National Foundation for Indigenous Affairs (FUNAI), situated on the Santa Rosa farm, illegal property of the farmer José Elias. On the day of the retaking, they found a body in an advanced state of decomposition, and immediately reported the fact to the Federal Police. Hours later, federal police and the owner of the farm arrived together at the site, determining that twelve of the indigenous persons were to be taken to the headquarters of the Federal Police to provide depositions. Being members of the community, they were primary suspects in the death^[8]. 
Upon arriving at the federal police station of Ilhéus, Fabio Araújo Marques, the officer responsible, threatened the indigenous group and told them never to return to the farm. As they did return, on May 30, 2009, the Federal Police and the proprietor returned to the area. At that time, federal agents arrived firing at the community and setting fire to the homes and personal belongings with the main objective of frightening the Tupinambá. After the departure of the police, the indigenous people returned to the headquarters of the village and remained in the abandoned installations that had not been burned^[9].
On day 2 of June, the Federal Police and the proprietor of the farm  returned together to the site and this time, police agents acted in a more aggressive manner, capturing and torturing five indigenous people who were unable to flee. They were: Ailza Silva Barbosa, Alzenir Oliveira da  Silva, Calmerindo Batista da Silva, Mário Oliveira Barbosa, José Otávio de Freitas.
On that occasion, the police used pepper spray in the eyes of the indigenous persons captured, causing intense pain, according to the report compiled by the Federal Prosecutor of the Federal District, Dr. Luciana Loureiro. They also complained of severe back pain and burns caused by "taser guns", and by beatings while still taken prone and handcuffed. According to the depositions provided, all were kicked, punched, slapped, cursed, constantly threatened with death and three of them received [electrical] shocks to the genitals^[10].

At the Federal Police station of Ilhéus, the group remained handcuffed for more than nine hours^[11]. On this occasion, once again officer Fábio Araújo Marques made threats regarding the return of indigenous people to the farm, even though this is Tupinambá territory.

With respect to indigenous arrest and torture, Ailza Silva Barbosa reported that police threatened to cut her throat and hair with the knife they carried^[12]. In the police headquarters, Ailza stated that a police woman, in order to humiliate her entered the bathroom with her and threatened to take her clothes showing her gun in the mirror pointed in her direction^[13].
After the illegal arrest and torture, the five indigenous persons were driven to the Civil Police in the town of Itabuna on 4 June, to register the crime, but the doctor only asked a few questions about what they were feeling, without so much as performing a clinical examination^[14]. In Brasilia, the Institute of Forensic Medicine of the Federal District, under requisition by Federal Prosecutor Dr. Luciana Loureiro, conducted more detailed examinations and the results of the examinations confirmed the denunciations. The inquiry however, conducted by the same police chief who coordinated the action of the agents, concluded that there was no instance of torture. None of the agents was removed from duty during or after the investigations.

Antecedents 
The Tupinambá initiated the struggle for the constitutional right to their lands in 2000. Since then, they have led a series of retakings, both near the coastal town of Olivença, in southern Salvador, as in the interior of the state, in a mountainous region of old cocoa plantations. Some communities have settled on lands that were utilized, with support from local politicians and entrepreneurs, for illegal logging, which led to a series of confrontations with the Federal Police.
In October of the year 2008, agents of the Federal Police who tried to stop the indigenous leader Rosival Ferreira da Silva, used excessive force against his family and other members of the Tupinambá community of Serra do Padeiro. His brother Jurandir was detained and beaten on October 23 of 2008 and the situation in the region, since then, is very tense.
The Federal Police entered the village on 20 October of 2008 to inspect areas that were about to be the subject of an eviction order, which generated new conflicts in the region. According to police, the Tupinambá had ambushed them during the inspection, but the community maintains that the police fired at their members when they conducted officers to the center of the village. By the end of the confrontation, three community members had been injured by rubber bullets.

The Federal Police reentered [the village] with a large contingent on the morning of 23 October of 2008. More than 100 police, in more than 30 vehicles and a helicopter surrounded the area, preparing to apprehend Babau, who they accused of preparing the "ambush". During the operation, the police used tear gas and injured more than a dozen Tupinambá. This violent attack by federal police caused a response of outrage in national society, including a campaign led by Amnesty International.
In this action, denounced by the National Commission on Indigenous Policy, nobody has been held accountable for the excessive and unlawful acts, creating a climate of impunity in relation to abuses by authority of agents and delegates of the Federal Police. The representative of the Federal Police Department in meeting with the National Committe on Indigenous Policies (CNPI) late 2008 even mocked the report by the indigenous people. (Despite the change of the Superintendent of the Federal Police, after the meeting with parliamentarians and human rights entities with the Minister of Justice, the same officer continues to be active in the region, as well as the federal police agents involved the episode of the torture in June of 2009).

The arrest of Babau, a leader who represents the circa 130 families living in the village of Serra do Padeiro (municipalities of Buerarema, Una and Olivença) occurred at a moment of significant tension.

Babau is an important leader of the Tupinambá people, who have several other caciques. The exacerbation of violence against this people, like this arrest, has been ongoing since the publication of the identification report for and demarcation of the Tupinambá indigenous land, prepared by a technical working group constituted by the FUNAI, in compliance with the Federal Constitution, the Indian Statute and Decree 1775/96. Since then the Tupinambá have been the target of intense accusations, threats, attempted homicide, in addition to suffering an intense discriminatory campaign by the local political and  economic class, which historically invades and destroys the Tupinambá Land^[15].

 
Recommendations
The grave violence in the countryside – especially that suffered by the indigenous people of Brazil – originates through the lack of accountability of public officials who violate rights; through the criminalization of leaders and through failure to implement the constitutional right to demarcation of indigenous territory, recognition of the value, of the dignity and of the rights internationally and constitutionally guaranteed to the indigenous peoples.
Unfortunately attitudes like those of the Federal Police corroborate  the illegality proceeding from economic groups, squatters and the large scale landowners (latifundiários). Within its partiality, they fortify the criminalization of the leaders and peoples, and, consequently the perpetuation of violations.
Given, therefore, the denunciations of torture and human rights violations committed by agents of the Brazilian State, CIMI and Global Justice are calling for adoption of the following recommendations to the Brazilian authorities: 

            a) Carry out a serious and effective investigation so that the agents of crimes of torture committed against Ailza Silva Barbosa, Alzenir Oliveira da Silva, Calmerindo Batista da Silva, Mário Oliveira Barbosa, José Otávio de Freitas can be prosecuted and held accountable by the Judiciary;
           

            b) Immediate granting of liberty for the defender of human rights  Cacique Babau – Rosivaldo Ferreira da Silva – and Givaldo Jesus da Silva, in light of the illegal arrest;

            c) Immediate guarantee of possession of territory to the Tupinambá people, as set forth in the Brazilian Federal Constitution, upon completion of the demarcation process with the competent organs and its protection;

            d) Guarantee of the physical invulnerability of the Tupinambá People;

            e) Continued training in Human Rights for police agents who deal with indigenous peoples and other ethnic minorities.

We thank you in advance for the attention given to this communication and we make ourselves available to provide further clarification. Any information may be provided by the NGO Justiça Global by telephone +55 21 2544 23 20, fax +55 21 2524 84 35; or via email [email protected]

 

Sincerely,
Saulo Ferreira Feitosa / Eden Pereira José Magalhães
Indigenous Missionary Council (CIMI)

Andressa Caldas / Sandra Carvalho / Luciana Silva Garcia / Tamara Melo / Renata Lira
Global Justice