The Federal Supreme Court resumes, this Wednesday (9), the appeal judgment of photo reporter Alex Silveira against the decision of the São Paulo Court of Justice, which understood that he was solely to blame for the loss of 80% of vision in the left eye to being hit by a rubber bullet fired by a police officer.
On May 18, 2000, Silveira covered, for the Agora newspaper, a public demonstration by public servants, on Avenida Paulista, in São Paulo. Although it has expressly recognized that the reporter was not one of the protesters, and that the bullet was fired by a police officer, the 2nd Public Law Chamber of the TJ-SP reformed, in 2014, the first degree sentence and judged that he was not entitled to no indemnity.
The Chamber argued that (…) “remaining, then, in the place of the turmoil, not withdrawing from it at the time when the conflict took on aggressive proportions and at risk to physical integrity, thus remaining in the midst of them, despite its only photographic reporting scope, the author he placed himself in a framework in which it can be said that he was solely to blame for the regrettable episode of which he was the victim”.
The judges Vicente de Abreu Amadei (rapporteur), Paulo Dimas Mascaretti (president without vote), Maurício Fiorito and Rodrigues de Aguiar participated in the judgment at the TJ-SP.
right-duty to inform
The trial in the STF began in August 2020. It was suspended due to a request by Minister Alexandre de Moraes, after a vote by the rapporteur, Minister Marco Aurélio. The rapporteur granted the appeal to establish the following thesis:
“It violates the right to professional practice, the right-duty to inform, a conclusion on the exclusive guilt of a press professional who, when covering a public demonstration, is injured by a security force agent.”
Attorneys Virginia Garcia and Mônica Galvão, who represent the photographic reporter, state in the appeal: “By exempting the police officer for damages caused to journalists in journalistic coverage of public demonstrations, the judgment imposes veiled censorship on the exercise of journalistic activity.”
The resource deals with themes of flagrant general repercussion. It argues that, if the TJ-SP’s understanding prevails, there will be a violation of press and information freedoms, which constitute a fundamental clause of the Constitution; there will be an obvious embarrassment to press activity and a risk to all journalists and photographic reporters in the country.
The São Paulo Treasury contested the action, alleging, among other arguments, that there was no evidence that the injuries suffered were caused by state agents; that the amount of the intended moral damages would be excessive and that the appellant has not proved to have been invalid.
Testimonial evidence was produced by hearing four witnesses of the appellant. The appeal states: “With these testimonies, it was demonstrated that the injuries suffered by the appellant were indeed caused by a police officer, in a violent and disastrous attitude during the demonstration of public servants, by pointing the non-lethal weapon at the upper limbs of the appellant and the other public act present, as well as the countless damages suffered by the applicant and who stopped working as a photographic reporter, as he no longer had perfect and sensitive vision to capture the moment of photography”.
The appeal also records that the police officer did not make proper use of the “non-lethal” weapon. It failed to comply with the guidance given by the product supplier to the Public Authority “which determines that the shot is made by pointing the weapon at the legs of the violators of the law; that he does not throw himself against his head and lower abdomen; and that the shot be taken at distances of less than 20 meters”. The course approved by the Federal Police has the same orientation.
“The attitude of the police officer, also for this reason, unlike the demeaning conclusion drawn in the appealed judgment, was absurd, excessive and arbitrary, constituting an abuse of authority and an unlawful act, configuring the legal hypothesis of objective accountability of the State, without under any circumstances, the victim’s exclusive fault”, state the lawyers.
“Data venia, this seems to be a very dangerous jurisprudential precedent and allows serious reflections: is this a form of embarrassment to the press activity, so that, more and more, the acts of state agents are not reported? Is this a way of trying to remove the constitutional responsibility of the State for the acts of its agents, given the recent wave of popular demonstrations?” -ask the defenders.
The appeal offered to the STF concludes: “Sad is the case law precedent that starts from the premise that the only way the police can act is through violence, so that those who stand in their way bear the risk and responsibility resulting damage”.
In memorial to the STF, Abraji (Brazilian Association of Investigative Journalism) – which figures as amicus Curiae— states that the precedent of the TJ-SP “is extremely serious and has the potential to significantly change the scenario of freedom of expression in the country and, especially, the safety of journalists in more difficult coverages, precisely those that involve the performance of the apparatus of State security”.