Case Summary and Outcome

The Supreme Federal Court of Brazil (S.T.F.) held that the advocacy of or protest in favor of drug legalization cannot be criminalized. The Prosecutor General asked the S.T.F. to clarify an article in the Brazilian Criminal Code which defines as a crime the act of publicly making an apology for a crime or for its perpetrator. This followed several judicial decisions in which leaders of the “Marijuana March” in many cities in Brazil were convicted for publicly advocating for drug legalization. The court found that the article should be interpreted in accordance with the Constitution and explained that the mere proposal to decriminalize a particular criminal offense is not to be confused with the act of inciting the commission of an offense nor with the defense of a criminal act. The decision recognizes that protests defending unpopular ideas, even if controversial, are constitutionally protected fundamental rights.

This case was contributed by the Open Society Justice Initiative in collaboration with Article 19.

Facts

On July 21, 2009, the Prosecutor General filed a request with the S.T.F. to establish a binding constitutional interpretation of Article 287 of the Brazilian Criminal Code. Article 287 of the Brazilian Penal Code defines as a crime the act of “publicly making an apology for a criminal act or for the author of a crime”. It has been used to criminalize public protesting and advocacy in favor of drug legalization, and the legislation was believed to be targeted at the “Marijuana March” group with several prosecutors and judges across Brazil holding that leaders of the drug legalization rallies were in violation of Article 287. The Prosecutor General’s request also referred to a statement from the Special Rapporteur for the Inter-American Commission for Freedom of Speech expressing concern about these decisions

The Prosecutor General argued that freedom of expression presupposes that the State cannot regulate for what people can or can’t say, or what they can or can’t hear.  He noted the S.T.F. had previously decided that the right to freedom of assembly was one of the major achievements of civilization, that it is a manifestation of expression and crystallizes the right to protest.

The President of the Republic and the Attorney General both asked for the request to be dismissed, arguing that the illegality of crimes must be examined on a case-by-case basis in a factual context. They argued that the request invited only an abstract analysis rather than a ruling  in which the Court had been able to fully explore and understand the purpose and effect of Article 287 and its enforcement.

Decision Overview

On June 15, 2011, J. Celso de Mello delivered the unanimous opinion of the Court.

It held that Article 287 of the Penal Code should be interpreted in accordance with the Constitution so as not to prevent public demonstrations in favor of legalizing drugs. Specifically, Article 287 should be interpreted in accordance with the fundamental liberties of expression and assembly prescribed by Article 5th IV and XVI, and Articles XIX and XX of UDHR, Articles 13, and 15 of the ACHR, and Articles 19 and 21 of the ICCPR, respectively.  It said that Article 287 only defines as a crime the “apology of a criminal act” or of a “criminal perpetrator.”

J. Mello referred to a decision from the beginning of the 20th Century, in which the S.T.F. granted a presidential candidate, Ruy Barbosa, habeas corpus (HC 4.781/BA) to ensure that his public rallies would not suffer any undue interference by authorities. J. Mello also cited ADI 1.969/DF, in which the S.T.F. held that a decree forbidding demonstrations in the main parts of the Federal Capital, Brasília, was unconstitutional.

The S.T.F. said that protesting in favor of and advocating for the legalization of drugs was inherent in the right to freedom of speech. J. Bello explained that the mere proposal to decriminalize a particular criminal offense is not to be confused with the act of inciting the commission of an offense nor with the defense of a criminal act. The protesters only sought legalization of such offenses, they did not advocate committing such offenses. The Court also stressed that while protests are allowed, under no circumstances was the encouragement of the consumption of such drugs permitted during the protests.

The Justices agreed on the essential character of freedom of speech and that citizens should have the ability to participate actively in political and decision-making processes. The Court affirmed the close connection between freedom of assembly, expression and speech and that peaceful assembly is a legitimate form of expression and shows that the State is not repressive. The Court said that ideas are protected regardless of how strange or extravagant they may seem to the majority and highlighted the relevance of its role as a counter-majoritarian check. It also reaffirmed the importance of negative speech. Finally, the Court argued that the repression of the freedom of assembly and protest undermines a constitutional democracy.

The Justices opinion included, obter dicta, directions that children and adolescents should be forbidden from participating in such events and that the competent authority should be given prior notice of the date, time, place and purpose of the event. It also directed that the demonstrations should be peaceful, weapons should not be used and there should be no incitement to violence.  As obter dicta these directions were not legally binding as precedents.