Case Summary and Outcome

The São Paulo State Court granted the Public Defender’s Office of São Paulo an injunction to prohibit the use of violence by military police to break up public gatherings such as Carnaval parades, soccer celebrations and citizens’ protests. J. Aparecido de Andrade banned the use of rubber bullets and tear gas by the police and ordered the state government to establish a protocol on police action to regulate the use of force, in order to guarantee the right to assembly and peaceful protest. The Court reasoned that the excessive use of force to control public protests was unjustifiable and incompatible with the fundamental right to assembly and protest guaranteed by the Constitution.

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

Facts

In 2014, the Public Defender’s Office of São Paulo State filed a public civil action regarding eight cases of public gatherings between 2011 and 2013 in which the military police used excessive and disproportionate force. The eight cases included spontaneous and festive gatherings, such as the celebration of the 2011 Brazilian Soccer League Tournament title and Carnaval celebrations in the Bixiga neighborhood of São Paulo, as well as protests organized by Movimento Passe Livre (a movement for free public transport fares). The Public Defender argued that the cases were public gatherings protected underArticle 5 of the Brazilian Constitution which guarantees the right to freedom of expression and freedom of assembly.

The Public Defender’s Office said that the São Paulo Military Police had prevented the residents of São Paulo from exercising their rights to freedom of assembly and freedom of speech in their own city. The complaint alleged that the police force’s approach ignored recommended techniques and employed an excessive use of force by using rubber bullets and tear gas and displaying high-caliber arms.

The relief requested included the imposition of measures to curb excessive force and the creation of a protocol setting out a proper procedure for the São Paulo State military police to control public demonstrations. Specifically the Public Defender’s Office requested that the military police not use firearms or rubber bullets; that all officers wear visible identification at protests; that clear conditions are established for issuing dispersal orders; and that such orders are only given in extreme cases. The Public Defender’s Office also requested that damages of R$1,000,000.00 (one million reais) per event be contributed to a specific fund which would be distributed to the injured individuals.

In October 2014 J. Aparecido de Andrade granted a preliminary injunction forbidding the use of rubber bullets by police and ordered the police to establish a protocol regarding the use of force.

The Defendant State of São Paulo filed an appeal. It argued that the eight cases involved a conflict between the right to freedom of expression and public safety and that the military police had acted proportionately to prevent violence and ensure peaceful gatherings.

The Defendant also argued that the injunction infringed the separation of powers system enshrined in the Constitution because public safety is a matter for the Executive Branch, and not the Judiciary.

In November 2014 the preliminary injunction was suspended by the São Paulo State Court of Appeals. Two appellate judges who were supposed to be reviewing the injunction voted instead for the suspension of the public civil action but a request for an adjournment by the third appellate judge interrupted the judgment.

Decision Overview

On 19 October 2016, J. Aparecido de Andrade granted the injunction requested by the São Paulo Public Defender’s Office. The ruling will be automatically submitted to the Court of Appeals for review.

J. Aparecidode Andrade began by stating that the Executive Branch does not have exclusive jurisdiction over matters that involve other constitutional concerns such as fundamental rights noting that judicial review is part of the Constitution. He cited European Court of Human Rights case law and commentary on the prohibition of the use of rubber bullets during protests. He also highlighted the right to assembly guaranteed under Article 5, XVI of the Brazilian Constitution and compared Article 5 to Article 45 of the Portuguese Constitution which refers to the right to assembly and freedom of expression in connection with public gatherings. The Judge said that the right to assembly is essential to the workings of a democracy and the State cannot interfere in public gatherings without violating a fundamental right unless it is justifiable to do so.

The Judge said that the police cannot use public safety as an excuse for the excessive use of force and that the employment of violent means of repression, such as rubber bullets and tear gas, is incompatible with the right to assembly. He found that the State military police did not have sufficient rules and regulations in place to guard against the eight cases of police brutality and that this may have contributed to the violent response to the public demonstrations.

The Court found that the State of São Paulo at fault for acts of violence committed by the military police during the protests and awarded the Public Defender’s Office R$8 million (eight million reais) in moral damages. It also ordered the creation of a police protocol to govern the use of police force during public protests; prohibited the use of firearms and imposed restrictions on the use of less-lethal weapons such as rubber bullets, stun grenades, tear gas and pepper spray to break up public protests; made visible identification of police officers working protests mandatory; ordered the State to establish clear conditions for issuing dispersal orders; the appointment of a spokesperson to adequately relay information to protesters; and the distribution of damages to individuals injured by prior acts of police brutality.

The judge imposed a daily fine of R$100,000 (one hundred thousand reais) if measures were not taken within 30 days.