Freedom of Association and Assembly / Protests
Nemtsov v. Russia
Closed Mixed Outcome
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The Superior Court of Justice of Brazil granted one request for habeas corpus and dismissed three other requests made by members of the Landless Rural Workers’ Movement, who were arrested for allegedly occupying and settling on farms in the State of Goiás as a political statement. The members were accused of the crimes of kidnapping, forced confinement, illegal constraint, robbery, amendment of property boundaries, and acting as members of a criminal organization. One request for habeas corpus was granted because that individual’s direct participation in the alleged crimes could not be proven. However, he was still forbidden from participating in any public protests and from contacting the other plaintiffs. He was also compelled to regularly appear in court in order to inform on and justify his activities.
The Landless Rural Workers’ Movement (MST) is an active social movement in Brazil that fights for agrarian reform. The movement is known for occupying and settling on large-scale and/or idle land to protest against agrarian policy. In doing this, members set up encampments so they can live off the land. The actions that motivated the charges in this case were carried out during the MST’s occupation of the Várzea da Ema and Mino Moraes farms in the State of Goiás. Following their arrest on June 1, 2016, charges were brought against Luis Batista Borges, Diessyka Lorena Santana Soares, Natalino de Jesus, and José Valdir Misnerovicz.
The four arrestees were accused of being the leaders of the movement by witnesses with financial ties to the owner of the farmland. It was alleged that the crimes of vehicle theft, death threats, intimidation with bladed weapons, kidnapping, and an arson attack on an agricultural machine occurred during the occupation of the farmland. They were also accused of wrongful possession, theft, coercion, and forced confinement. However, only three out of the four accused were recognized by witnesses as perpetrators of some of the criminal offenses.
The arrestees were charged with the criminal offenses of kidnapping and forced confinement (Art. 148 of the Criminal Code), illegal constraint (Art. 146 of the Criminal Code), robbery (Art. 157 of the Criminal Code) and amendment of property boundaries (Art. 161 CP), in addition to acting as members of a criminal organization according to Act 12,850/2013.
The arrest warrant was issued by the Court of Appeals of the State of Goiás because a lower court judge claimed to fear for his physical safety if he was the one issuing the warrant. He feared that the decision would cause demonstrations that, in his view, could turn violent. To support his claim, he mentioned three demonstrations held by the MST in front of court buildings in the days before the issuing of the arrest warrant. The Court of Appeals of the State of Goiás agreed that there was a threat to the physical safety of the judge and that the decision should be made by a higher court. There was no inquiry to investigate the alleged threats against the judge.
During a hearing held on September 8, 2016 before the lower court judge, a few MST members were denied access to the court building. They were to be registered and searched on entry, and were only able to sit in the hearing if the witnesses and victims did not oppose their presence. The decision to deny their access was based on fear of a non-peaceful protest by MST’s members. A large apparatus was set up by the military police, who blocked the entrances to the city and cordoned off the court building.
On the same day, the defense requested that they not be heard since their witnesses had not yet been called before the court to give testimony. The judge denied the request and stated that these witnesses would have nothing to contribute to the proceedings since they would either be participants of the MST, or politicians, teachers and civil servants who wouldn’t know anything about the case and would be politically and ideologically aligned to the MST. The defense filed an appeal for habeas corpus and the case reached the Superior Court of Justice.
Before the Superior Court of Justice, the defendants argued that having a fixed residence was no requirement for the granting of the writ of habeas corpus, and maintained that the lower courts failed to clearly demonstrate any action by the defendants that would jeopardize law enforcement or the legal proceedings themselves. Also, the defendants explained that they had fixed residences and regular jobs, and they believed that there was no reason for their detention as it was justified with reference to hypothetical assumptions. The defendants sought an injunction for their release.
The Federal Prosecutor’s Office reaffirmed the charges and argued in favor of keeping the defendants in custody for preserving the public order.
Justice Sebastião Reis Júnior, from the Sixth Chamber of the Superior Court of Justice (Court), was the rapporteur of the case. He voted in favour of granting a writ of habeas corpus for José Valdir Misnerovicz, and of denying it for the other defendants (Luis Batista Borges, Diessyka Lorena Santana Soares and Natalino de Jesus). His decision was later confirmed by the justices of the Sixth Chamber of Superior Court of Justice.
The main issue before the Court was whether there were sufficient grounds for keeping the defendants in custody. The Court was of the opinion that their social agenda did not justify their “disproportional violent acts” and that, in order to prevent them from further violence, they must remain in custody.
The Court considered that the release of the defendants would pose a risk to the public order and to law enforcement. The rapporteur dismissed the injunction and denied habeas corpus to three out of the four defendants on the ground that they posed a risk to the public order. In the Court of Appeals, it was stated that the defendants would continue to commit criminal offenses during the investigations because those offenses were common at the defendants’ settlement.
The Court ordered the defendants to remain in custody based on the claim that they would threaten victims and witnesses, and therefore compromise legal proceedings. In addition, the accused had no ties to the region, which would make them likely to flee the jurisdiction. The Court also mentioned that most of the crimes were difficult to assess because they were committed by people who refused to identify themselves.
The rapporteur set forth that people should respect the limits of the law and that the actions which had allegedly taken place amounted to misuse of violence. However, Justice Sebastião Reis Júnior, while agreeing with the other justices, argued that it was not a crime to take part in social movements such as the Landless Rural Workers’ Movement.
As for José Valdir Misnerovicz, the rapporteur considered that there was no specific mention of his participation in any of the acts, which made alternative preventative measures to imprisonment more adequate in his case. José Valdir Misnerovicz was subsequently released, but he was forbidden by the Court to take part in public protests or to maintain contact with anyone related to the facts under investigation.
All of the other justices agreed with the rapporteur. It was pointed out several times that they were not criminalizing social movements per se, and that the case focussed on the need to keep the defendants in custody pending trial without carrying out any sort of legal analysis on the criminal offenses themselves.
Justice Rogério Schietti Cruz partially disagreed with the majority reasoning behind the decision to keep the defendants in custody. According to Justice Rogério Schietti Cruz, there was no evidence that threats would have been made against the witnesses and victims, and it could not be said that law enforcement was endangered, because the defendants in custody indicated their addresses and one of them turned himself in voluntarily at the police station when required to do so.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This decision amounts to a mixed outcome. On one hand, important considerations were made regarding the need to not criminalize social movements by some of the justices, and one of the habeas corpus requests was granted to José Valdir Misnerovicz due to the lack of evidence regarding his participation in the alleged crimes. However, the other defendants remained in custody despite a lack of specific and individualized proof that they posed a threat to witnesses, victims, and law enforcement. Furthermore, restrictions were placed on José Valdir Misnerovicz despite the lack of evidence against him, which prevented him from exercising his right to peaceful protest.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
arts. 311, 312, 313 and 319
Case significance refers to how influential the case is and how its significance changes over time.
The decision is important due to the considerations made regarding the need to not criminalize social movements, despite the dismissal of the habeas corpus requests.
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