Indigenous peoples and their territories

Land rights, mortality rates, free and informed consent, extraction of natural resources, territorial disputes, lack of representation – the list of concerns that related to the indigenous population of Brazil was long.

The Committee and the delegation spoke about the marco temporal, the historic cut-off point. This refers to an argument that only those lands that were occupied by indigenous people when the Brazilian Constitution was enacted, on October 5, 1988, can be demarcated. This means that only the people who were in the areas on that date, can claim title to the land. The delegation announced clearly that the cut-off point is unconstitutional, and that the right of people to their land cannot depend on a timeframe. The Committee was satisfied with this reply.

Other questions focused on the extractive activities, both in the Amazon and other areas of the country, and whether indigenous peoples were consulted for their free and informed consent both for the development and the implementation of all legislative and policy measures that affect them. According to the delegation, government is developing a protocol for consent and it will be implemented in July.

Racism still prevalent

On several occasions, discrimination against and underrepresentation of black people and the indigenous peoples came up. In many of the statistics that were shared, from victims of Covid-19 to hate crimes to decision-making positions, it became clear that the black and indigenous population of Brazil still has a very different life experience than the white population. Other minorities also suffer from discrimination, including LGBTI persons and people in poverty.

According to the delegation, programs have been developed and quotas have been set to broaden the access of people of African descent and people in poverty to the public administration, universities, federal institutions etc. That has helped to improve the numbers, but the work is not done.

Remote education and privacy breaches

It is reported that, in Brazil, during the pandemic, sensitive data of children was collected and shared in the context of online education activities. There are allegations that the procurement of these services did not always take place in the best interest of students. For example, data has allegedly been shared to third parties to promote education software and advertising. Or services were provided for free in exchange for user data and the opportunity to test software.

Civil society shared that when they contacted the companies that provided the platforms, they said that they would not change their practices because they comply with Brazilian law. There is clearly a problem within the legislation, that needs to be amended to tackle these privacy violations. As a result, the Committee asked what child specific safeguards are in place to address the issue of privacy in educational software, and how they are implemented. It also asked what the regulatory framework was of the data protection law, and how it can prevent such abuses.

The delegation remained vague in their answers, that did not convince. It said that the ministry of human rights and citizenship is working on digital policies to develop strategies to protect those that suffered human rights violations. Guidelines from the federal government on media education are being developed.

Watch again the dialogue with the Committee here (part one) and here (part two).

Recommendations of the Human Rights Committee

Concluding Observations on Brazil's third periodic report were released on 26 July 2023. The State party is requested to provide, by July 2026, information on the implementation of the following recommendations:

Excessive use of force and extrajudicial killings

The State party should:

• (a) Redouble its efforts to promptly, independently, impartially and thoroughly investigate all allegations of excessive use of force and extrajudicial killings (in line with the Minnesota Protocol), ensure that all perpetrators are prosecuted and if found guilty punished; and ensure access to justice and provide full redress and compensation for victims of such violations; including in relation to the Complexo da Maré neighbourhood raid and the police operations in Jacarezinho and Vila Cruzeiro.
• (b) Monitor the application of “auto de resistência” to avoid being used as a way to cover up unlawful killings;
• (c) Consider the use of body cameras by law enforcement officers across States and the Federation, among other strategies to improve monitoring and accountability;
• (d) Collect and publish disaggregated data on the excessive use of force and violations of the right to life by law enforcement officers, including on the basis of the victim’s race, gender, sexual orientation and indigeneity, as well as on homicide rates and take appropriate measures to avoid the use of racial profiling.

Conditions of detention

The State party should ensure that the conditions of detention are in compliance with relevant international human rights standards, including the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules) and the United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules). It should, in particular:

• (a) Take immediate measures to significantly reduce overcrowding in prisons, including through the wider application of non-custodial measures as an alternative to imprisonment, as outlined in the United Nations Standard Minimum Rules for Non-custodial Measures (the Tokyo Rules);
• (b) Intensify its efforts to improve the conditions of detention and ensure adequate access to food, clean water and health care for persons held in all places of deprivation of liberty;
• (c) Ensure that women in detention have adequate access to medical care and other necessary services that meet their specific needs, including free access to menstrual hygienic products.

Rights of indigenous peoples and people of African descent

The State party should redouble its efforts to ensure the promotion, protection and recognition, both in law and in practice, of the rights of indigenous peoples, particularly with respect to land, territory and natural resources; and of other minorities. It should also:

• (a) Expedite the process of demarcation and titling of indigenous and Quilombola lands, including by ensuring adequate resources for implementation;
• (b) Uphold the right of indigenous peoples to the lands and territories that they have traditionally owned or occupied, including by reviewing its current legislation and rejecting and ending the application and institutionalization of the Temporal Landmark doctrine;
• (c) Step up its efforts to prevent conflicts over land use, including by providing guarantees in relation to land traditionally owned or occupied by indigenous peoples and Quilombola communities; and by combatting illegal invasion and illegal activities by logging, mining, fishing and large-scale farming companies;
• (d) Provide effective protection as well as remedies for all human rights violations resulting from the lack of effective legal protection of lands traditionally owned or occupied by indigenous peoples and Quilombola communities.

Here you can find all the recommendations given by the Committee in the Concluding Observations.

The follow-up report of Brazil on the implementation of the recommendations is due in 2026. The next list of issues will be adopted in 2029, and the next periodic report is due in 2030.