Activism or judicial liability? – 21/05/2021 – Oscar Vilhena Vieira

It became common sense in the Brazilian political debate to accuse the Judiciary of being an activist. I don’t like the term. I prefer to distinguish judicial decisions in good or bad, due to their greater or lesser adherence to the rules of law in solving concrete problems. In this sense, the more or less “responsive” posture of the Judiciary must be a consequence of the complexity of the problems it is called upon to solve and the nature of the rights that must be ensured.

In the so-called “ADPF of the favelas”, the Supreme Federal Court was called to judge the serious omission of the state of Rio de Janeiro in restricting the abusive use of lethal force by the police against populations, especially blacks, who live in their poorest communities, not even complying with the decision of the Inter-American Court of Human Rights.

The precautionary decision of the Supreme Court, in August 2020, was to restrict the conduct of police operations in the communities of Rio de Janeiro, during the pandemic, which should only occur in exceptional situations and within certain limits. As highlighted by Minister Gilmar Mendes, the “theme of police lethality is extremely complex”, highlighting the issue of criminal “inequality” and “selectivity”. The immediate consequence of the decision was not only a reduction in police lethality, but also in crime rates, including homicides, in those communities.

This decision by the Supreme Court, however, came to be challenged by a series of questionable legal operations, beginning in October 2020, culminating in the Jacarezinho slaughter, on May 6.

On Friday, May 21, in response to the declaration embargoes brought by the parties, Minister Edson Fachin issued a decision that was not only important, but innovative. After highlighting the seriousness of the systematic human rights violations to which the populations of communities in Rio de Janeiro are subjected and extolling the courage of family members and entities that participated in public hearings – without ever stigmatizing police work -, the minister clarified that the Judiciary cannot ignore the resistance of the public authorities to adopt protocols for the use of lethal force, in preserving crime scenes, as well as the difficulties of the State Public Ministry in exercising external control over police activities. As he made clear: “the failures resulting from these omissions cost lives”.

Without replacing himself with the responsible authorities, the minister determined eleven measures, among which the State’s obligations to present, within 90 days, a plan aiming at reducing police lethality, which must be in line with the Basic Principles for Use, stand out. UN firearms and the Constitution; the creation of a “Judicial Observatory of Citizen Police”, to accompany this process of a structural nature; the creation of an efficient system to control police activity, to be verified by the National Council of the Public Ministry; and the opening of an investigation to investigate the possible non-compliance with the STF decision in the Jacarezinho episode.

Zero activism. Minister Fachin only fulfilled, by means of a managerial or coordinating decision, his mission as a magistrate, when he was provoked to manifest himself on the omission of those who would have the primary responsibility for ensuring the fundamental right to life and public safety of the population. It is now expected that this decision will be endorsed by the other members of the Supreme Court.

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