Definition of crimes against indigenous communities

by Juliana Santilli

Introduction

This question is present in discussions on the new Brazilian Penal Code. The following paragraphs were edited based on a text written in July 1998 by Juliana Santilli (Public Prosecutor of the Federal District- Promotor de Justiça do DF and a collaborator of the ISA Environmental Law Program- Programa Direito Socioambiental/ ISA):

The prevailing Penal Code was implemented in 1940. It is characterized essentially by defining crimes against property (theft, robbery, etc.) and crimes against persons, against their life, honor or individual freedom. Little attention is paid to crimes against social or environmental assets or property, against collective nature, and there are no direct economic or patrimonial repercussions.

This omission was partially corrected by the Law of Environmental Crimes. Now there is an effort to revise it more adequately in a draft of a bill for the new Penal Code, prepared by a commission of jurists established by the Ministry of Justice.

The draft of the Bill contains various innovations in the definition of crimes against humanity, against citizenship, ethnic, religious and social minorities. Although the draft of the bill, in a somewhat incomplete manner, creates new crimes, which do not appear in the Civil Code of 1940, the Code currently in force, it seeks to classify as criminal those forms of conduct that violate social rights.

Based on the bill, the following crimes are defined regarding the relationship between indigenous and non-indigenous persons, specifically, or in those drafts of bills where these relations are included:

Crimes against indigenous communities

  • Invasion of indigenous lands: subject to two to five years of imprisonment and fine;
  • Conducting research, assays or mining operations on indigenous lands without legal authorization: subject to imprisonment from two to five years;
  • Illegal exploration and exploitation of natural resources of indigenous community lands, or inducing the indigenous communities to explore them: Subject to two to five years imprisonment and fine.

 

Crimes against citizenship

  • Violation of the right to free expression and manifestation (impeding peaceful manifestations of parties or political, ethnic, racial, cultural or religious groups: subject to one to four years’ imprisonment;
  • Discriminatory violation of a fundamental right or guarantee (impeding by any form of discrimination or prejudice, the free exercise of the right assured by the Constitution): subject to one to four years’ imprisonment;
  • Discriminatory association (organize an association to preach or disseminate discrimination or prejudice): subject to one to four years’ imprisonment;
  • Manufacture, sale, of symbols, emblems, decals or advertisements or propaganda with a racist content or containing messages that violate freedoms: subject to imprisonment from one to four years.

 

Crimes against humanity

Aside from the crime of genocide, stipulated in specific law:

 

  • Torture (torture someone with the use of violence or serious threat, causing physical or mental suffering): subject to imprisonment from four to eight years;
  • Condescending with torture and failing to provide information (failure of prisoner to communicate to the judge when one person is transferred to another establishment or to another location): subject to imprisonment from six months to two years

(Jul/1998).