Freedom of Association and Assembly / Protests, Public Order, Political Expression
Şahin v. Turkey
Closed Contracts Expression
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The Superior Court of Justice of Brazil dismissed a habeas corpus appeal flowing from the arrests of protestors who took part in the “Journeys of June” demonstrations in São Paulo. In 2013, several protests took place in many capital cities in Brazil and among the protestors were individuals adopting similar strategies to the “Black Blocs” (a group that would cause damage to public and private property during protests). A habeas corpus case was filed by twenty-four demonstrators who were arrested following the protests, and who wished to challenge the legality of the police inquiry opened against them.
The Court of Justice of the State of São Paulo dismissed the case, and the protestors appealed to the Superior Court of Justice requesting the suspension of the police inquiry because it amounted to an attempt to criminalize the right to demonstrate. The Superior Court of Justice dismissed the appeal, stating that the case had become moot since the inquiry had been closed at the time of their judgment due to the lack of sufficient grounds for prosecution and noting that the inquiry was for the purpose of identifying criminals.
The “Journeys of June 2013” was a massive wave of protests, called for by the Movimento Passe Livre – MPL (Movement for Free Fares), which saw over two million demonstrators gather in several cities around Brazil. The demonstrators were protesting against increases in transport fares, the deterioration of public services, and the decadent lifestyle of politicians. Some of these protests turned violent as some individuals adopted the tactics of the “Black Blocs”, a group that would cause damage to public and private property during protests. The demonstrations were harshly repressed, not only through the violence of the police on the streets but also by judicial decisions, arbitrary arrests, and restrictive pieces of legislation.
In this context, Police Inquiry No. 01/13 was established in São Paulo with the aim of investigating demonstrators under the suspicion that they had organized themselves as a criminal association. After the inquiry was opened, twenty-four protestors under investigation filed a habeas corpus request (a challenge to the lawfulness of the inquiry) and sought an injunction suspending the inquiry. The Court of Justice of the State of São Paulo dismissed the case.
The protestors subsequently appealed to the Superior Court of Justice on the basis that the opening of Police Inquiry No. 01/13 amounted to an unlawful reaction by the authorities in response to the escalating street protests. According to the applicants’ appeal, the opening of Police Inquiry No. 01/13 was unlawful because it amounted to an attempt to criminalize the right to demonstrate, as exercised during the protests that occurred in June 2013 in São Paulo. In addition, the applicants argued that, despite the growth of popular demonstrations, the response to the protests also exposed the inability of public authorities to deal with street protests appropriately. One example was the arrest of over 240 people “for investigation purposes” (the applicants among them), some of them for carrying vinegar or for filming unlawful acts committed by police. Others were randomly arrested by police agents, and the police committed other abuses with little risk of being held accountable for their actions.
The applicants also responded to the allegation that they were organizing themselves as a criminal association by highlighting that the Police Inquiry No. 01/13 was aimed at the identification of the group known as the “Black Blocs”, an organization that was intent on committing crimes such as damage to public and private property. In the opinion of the applicants, identification of those individuals should not hinder their right to demonstrate. Finally, the applicants requested that the authorities recognize their constitutional right to silence. They claimed that this right had been breached by a judicial order compelling them to be questioned.
Police Inquiry No. 01/13 was closed in September 2015 by the District Attorney of the State of São Paulo due to the lack of sufficient grounds for prosecution. The appeal was denied by the Superior Court of Justice.
Justice Maria Thereza de Assis Moura, rapporteur of the case, denied the demonstrators’ request for habeas corpus. Her decision was later confirmed by all members of the Sixth Chamber of the Superior Court of Justice.
The appeal was denied because the Superior Court of Justice considered that the applicants were not being investigated for having participated in demonstrations, but because they were suspected of committing crimes during the public acts.
The rapporteur of the appeal, Justice Maria Thereza de Assis Moura, mentioned an excerpt of a decision handed down by the Barra Funda Central Criminal Court of the District Court of São Paulo, which established that:
“There is no evidence that the arrestees are suffering from any kind of coercion, upon the analysis of the facts which are under investigation in the aforementioned case and it is necessary to wait for the end of the investigations in order to reach a safe conclusion. … Furthermore, any irregularity in connection with the actions of the police during the demonstrations does not render the criminal procedure now under review unlawful. Moreover, it must not be forgotten that, contrary to what was stated, a criminal investigation is also employed as a means for identifying authors of crimes, so the claim that it only assesses the commission of crimes, pure and simple, is not correct. So, any categorical analysis, such as those introduced by the plaintiffs about the criminal and legal stance to be attributed to the actions perpetrated during the demonstrations, is also inadequate. The Judiciary Power may not deprive the State of its right to investigate alleged criminal conduct and, if appropriate, prosecute the suspects. The analysis of the evidence is the responsibility of the prosecutor, who, if filing a request, will also need to persuade the judge about its correctness. A decision on habeas corpus that would prohibit police authorities from indicating the persons who, according to their understanding, have committed crimes, would be contradictory and virtually innocuous.”
Since Police Inquiry No. 01/13 had already closed by the time the case reached Justice Maria Thereza de Assis Moura — and the demonstrators were already released — she considered that the ruling of the Court of Justice of the State of São Paulo and the appeal under analysis was no longer a live matter. Thus, she dismissed the appeal pursuant to art. 34, XVIII of the Internal Regulation of the Superior Court of Justice.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
Even though Police Inquiry No. 01/13 was already closed and the demonstrators were already released by the time the case reached the Superior Court of Justice, it must be understood as one that violates free speech. The Superior Court of Justice failed to carefully assess the plaintiffs’ arguments regarding the violent actions and questionable conduct of police authorities during the protests. Instead, the Superior Court of Justice appeared to accept the reasons given for opening the police inquiry, without considering whether the actions of the authorities may have been taken to deter protestors from conducting similar demonstrations in the future. Furthermore, the Superior Court of Justice failed to consider whether the actions of the authorities were the least restrictive means of interfering with the rights of freedom of expression and freedom of peaceful assembly in order to investigate and identify members of the “Black Blocs”.
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