Ruling postponed

Judge requests adjournment to review vote on use of force by military police at protests

Maurício Fiorito, the reporting judge in the case on the regulation of the use of force by police at protests that is being heard in the São Paulo State Court, today, April 12, requested an adjournment of the case. He said that following the statements made during the session by representatives of the Public Defender’s Office, Article 19 and Conectas Human Rights, he would have to “reflect more on the case”. “The oral statements were so well presented that I feel an obligation to improve my vote,” he said.

The judge also asked for the public petition organized by the Minha Sampa network and delivered to the court by the Public Defender’s Office to be digitized and attached to the case. The petition received more than 12,000 signatures in just five days.

• Click here to sign the petition.

Fioreto is a member of the 3rd Public Law Chamber of the São Paulo State Court, together with the judges Camargo Pereira and Antonio Carlos Malheiros. They will decide whether or not to uphold a trial court injunction that restricts the use of less-lethal weapons by the military police at protests and that requires the police to draft a regulation on the use of force in these situations.

The case was filed in 2014 by the São Paulo Public Defender’s Office based on abuses committed by the military police during the mass protests in June 2013. In October of the same year, Judge Valentino Aparecido de Andrade, of the 10th Public Finance Court, issued an injunction that was overturned just days afterwards by Appellate Judge Ronaldo Andrade.

Click here to read the trial court injunction.

Click here to read the ruling that suspended the injunction just days afterwards.

During the proceedings, the organizations Conectas Human Rights and Article 19 were admitted as amicus curiae – a legal instrument that allows the presentation of independent opinions on the case being heard.

Statements

The first to present arguments to the judges was Mirna Cianci, the São Paulo State Public Finance Prosecutor who filed the case to suspend the trial court injunction. Without addressing the topic of regulating the use of force by the police, Cianci claimed that “there are no absolute rights” and that unauthorized demonstrations can pose a risk to people’s lives, for example when they need to get to a hospital. At the end of her statement, she asked the judges to uphold the suspension of the injunction.

Cianci was followed by Daniela Skromov, the coordinator of the Citizenship and Human Rights Center of the São Paulo Public Defender’s Office. Skromov began her statement by emphasizing the “historic” and “unprecedented” nature of the case and stressing that police violence is not the result of isolated excesses, but rather the lack of a “humanistic, rational and adequate protocol to the Constitution”.

This, she said, explains the discretion exercised by the military police at demonstrations with different agendas. “Sometimes they blind journalists, other times they send the Security Secretary in person to Avenida Paulista to talk to 26 people who had been blocking traffic for countless hours,” said Skromov, referring to a protest in support of the impeachment of President Dilma Rousseff that obstructed the street for 38 hours in March.

She concluded by stating that “public security is not a carte blanche for a policy of bullets, beatings and tear gas” and that a protocol on the use of force would benefit police officers, citizens and the Judiciary itself in controlling the legality of demonstrations.

After the public defender, the judges heard statements by Camila Marques, a lawyer from Article 19, and Rafael Custódio, a lawyer and coordinator of the Justice program at Conectas.

Click here to read the amicus curiae submitted by Conectas.

Click here to read the amicus curiae submitted by Article 19.

The representative of Article 19 based her arguments on the organization’s analysis of more than 1,500 protests and she stated that police violence is not isolated, but “systematic” and “persistent”. “A report published by the Inter-American Commission on Human Rights last month noted that the police have been acting in a manner incompatible with international standards and that the use of force should always satisfy the principles of legality, with absolute responsibility,” said Marques.

She also mentioned the cases of the journalist Sérgio Silva, who was blinded in one eye by a rubber bullet, and the secondary school students, who last week denounced abuses by the military police to the IACHR (Inter-American Commission on Human Rights of the OAS). “Violations continue to occur at demonstrations, which is why today it is so important and necessary, given the inaction of the São Paulo state government, for the State Court to assume this commitment,” she concluded.

Rafael Custódio, meanwhile, refuted the state prosecutor by explaining that the alternative between the right to assembly and the maintenance of public order is false dichotomy, and he mentioned two UN rules that regulate the use of force by the police: the Code of Conduct for Law Enforcement Officials, of 1979, and the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, of 1990.

“It is important for us to draw on these two legal frameworks in order to disprove the widely held opinion that this is an obstacle to the legitimate use of force when, in fact, what we are discussing are the terms in which it is permissible at demonstrations,” he said.

Before asking for the reporting judge’s vote on the case, the president Antonio Carlos Malheiros gave the floor to Cristina Caboclo, a prosecutor from the São Paulo Public Prosecutor’s Office. She praised the case filed by the Public Defender’s Office and asked the judges to uphold the trial court injunction, which she described as “quite reasonable”.

After Caboclo’s statement, Judge Maurício Fiorito said that, after hearing all the arguments, he would review his vote. No date has been set to resume the judgement.

Chronology

08/05/13 – Conectas and the Citizenship and Human Rights Center of the São Paulo Public Defender’s Office submit to the São Paulo State Public Security Department a series of recommendations on how the police should act in demonstrations. No response was ever given.

04/22/14 – The São Paulo Public Defender’s Office files a public civil action asking the courts to compel the state of São Paulo to adopt these recommendations. The case is pending in the 10th Public Finance Court.

07/17/14 – Conectas presents an amicus curiae brief with an overview of the main international standards that regulate police conduct and alleges that the state of São Paulo fails to comply with provisions of the Universal Declaration of Human Rights (of the UN) and the American Convention on Human Rights (of the OAS).

10/24/14 – Judge Valentino Aparecido de Andrade, of the 10th Public Finance Court, grants an injunction.

11/05/14 – Responding to a request from the São Paulo State Public Finance Department, Appellate Judge Ronaldo Andrade suspends the injunction.

01/13/15 – Article 19 presents an amicus curiae brief supporting the initial request of the Public Defender’s Office.

04/12/16 – The reporting judge Maurício Fiorito requests an adjournment of the case.