The return of plenary sessions at the Federal Supreme Court (STF) this Wednesday, 2, after a hiatus during the year-end recess, coincided with André Mendonça’s first vote after taking office in the Court. The new minister made his debut in the resumption of the trial on the lethality of police operations in Rio de Janeiro. President Jair Bolsonaro’s (PL) nominee was against limiting the action of Public Security forces in the favelas of Rio de Janeiro.
Former Minister of Justice and Public Security, Mendonça was the only one, besides Kassio Nunes Marques, to differ from the proposal presented by the rapporteur of the action, Minister Edson Fachin, to restrict the use of lethal means in incursions. The thesis defended by Fachin states that police officers should only resort to firearms ‘when non-lethal means have been exhausted, when necessary to protect life and prevent serious harm, or when there is a concrete and imminent threat’.
For Mendonça, the measure may limit the full exercise of the police function. “If the performance of the State is currently deficient in such locations, it is not by restricting or preventing the action of these security forces that the problem will be solved. On the contrary, as I already had the opportunity to say when I was still Minister of Justice and Public Security, where there is no State, there is organized crime”, said Mendonça.
“Where public security forces cannot act in the light of parameters pre-established by the legislator and according to the best technique, the police officer is recognized in the light of each circumstance, we, in my view, give scope for power to be occupied by forces criminals,” he added.
Conclusion
The conclusion of the trial is scheduled for Thursday. The issue has been analyzed since May last year, based on an action proposed by the Brazilian Socialist Party (PSB), which asked for the intervention of the court to force the Rio de Janeiro government to implement measures aimed at reducing police violence in the state. It was within its scope that the ministers determined the suspension of operations in favelas during the pandemic, except in ‘exceptional’ situations justified in writing. Before ruling the trial, Minister Edson Fachin, rapporteur of the case, conducted a round of public hearings to deepen the debate. In 2021, when the case began to be processed in court, at least 61 massacres were recorded in Rio de Janeiro, according to a survey by the Fogo Cruzado Institute.
The collegiate debate even started on two occasions. At first, it was guided in the virtual plenary. A request from Minister Alexandre de Moraes, however, transferred the analysis to the videoconference session in December. In the first session, only Fachin and Moraes himself had time to read the votes, which delayed the outcome of the process, awaited by human rights organizations.
So far, the most controversial point among the ministers is precisely the protocol for the use of lethal means by the Security Forces. In his vote, Fachin established as a premise that firearms could only be used in extreme cases, when other alternatives have been exhausted.
“It is the role of the State and the police to know how to define the proportionality of the use of force”, defended the rapporteur this Wednesday. “The police officer must evaluate and justify, demonstrating exceptionality and proportionality. In other words, follow protocol. That’s what it’s about.”
See all the points of Fachin’s vote:
– Development of a plan to reduce police lethality and control human rights violations by security forces within 90 days;
– Exceptionality in carrying out police operations and in the use of lethal means;
– Creation of an observatory to monitor the security policy of the Rio de Janeiro government;
– Absolute priority in the investigation of incidents involving children and adolescents;
– Suspension of the secrecy of all police action protocols in the State of Rio de Janeiro;
– Household warrants must be carried out only during the day;
– Searches without a court order need ‘prior and robust reasons that indicate the existence of flagrante delicto’ and cannot be based on anonymous reports;
– Availability of ambulances in previously planned police operations where there is the possibility of armed clashes;
– Installation of GPS equipment and audio and video recording systems in police vehicles and in the uniforms of agents;
– Supervision of compliance with the STF decision by the Federal Public Ministry.
Divergence
In his debut in the plenary, Mendonça, sworn in on the eve of the recess in December, understood that Fachin’s vote advanced the administrative autonomy of the government of Rio de Janeiro to define the state’s security policy.
“Depending on the degree of intervention, the judicial decision may completely empty the necessary margin of adaptability that the Executive must have in the process of implementing the command issued. To encourage institutional dialogue, the Judiciary must leave room for other constituted powers. This reserve of action proves to be fundamental so that operationally unenforceable decisions are not produced,” he said.
In Mendonça’s assessment, the rapporteur’s demands were very ‘rigid’ and have the potential to compromise the performance of the Security Forces.
“The main concern I have is that these measures do not prevent the undue performance of bad police officers and make the performance of the good police excessively limiting. Remembering that the policeman, when he goes out to do an operation, he is putting, first of all, his life at risk. And, in addition to your life, as the circumstances may, if mistakes are made, your own job and position at risk,” he defended. “Where the Public Security Forces cannot act, in the light of the parameters pre-established by the Legislator and according to the best police technique in each circumstance, we give scope for the power to be occupied by criminal organizations.”
The minister also went against the order for the state government to install GPS and audio and video recording systems in vehicles and uniforms. In this regard, only Minister Kassio Nunes, also appointed by Bolsonaro, accompanied Mendonça against the need for monitoring equipment.
Another point of disagreement with the rapporteur of the action was the determination to lift the confidentiality of all police action protocols. “Advertising, which is wide and unrestricted, harms the security of the citizen,” he said.
André Mendonça’s position followed the line of Alexandre de Moraes, who, before taking up his seat in the STF, was secretary of Public Security in the government of toucan Geraldo Alckmin in São Paulo. Moraes was the first to open disagreement, still in December, when he classified some of the measures proposed by Fachin as ‘generic ties to police operations’.
Minister Kassio Nunes Marques followed the divergence. In his opinion, the restriction on the use of lethal weapons is unfeasible in the face of the ‘violent’ reality of Rio de Janeiro.
“Perhaps if this were an unknown phenomenon, if we were not already aware of the high level of warfare present in the communities, perhaps if it were in another country, it could be argued that the use of force could be progressive, starting with non-lethal weapons”, he defended. . “This war is not honest.”
He also declared himself against the determination to install cameras in Rio de Janeiro troops. The argument is that a ruling by the Federal Supreme Court could ‘stump’ any necessary adjustments in the implementation of the measure.
“I am sympathetic to the measure and I think it will bring a social gain. My concern is that, not unlike other public security policies, surprises always appear when they come to fruition. (…) When the command is petrified through the final decision of the Federal Supreme Court, only from the revisiting of this issue by this Court would it be possible to adapt this policy”, he said.
Nunes Marques also indicated that, in his opinion, the issue should not even be discussed in court.
“It is not the function of a constitutional review action to remain connected in real time with concrete problems of a public policy”, he opined.
Ministers Rosa Weber and Dias Toffoli also presented the votes, without the complete reading, due to the time. The minister followed most of the rapporteur’s vote, while Toffoli fully followed Moraes’ position.
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