Fachin pressures RJ to follow security plan contested by police officers

Minister Edson Fachin, of the Federal Supreme Court (STF), within the scope of the so-called “ADPF das favelas”, has tried to force the Rio de Janeiro police to follow a plan drawn up by a working group of the National Council of Justice (CNJ) with left-wing NGOs with the alleged objective of reducing police lethality.

The Public Security Institute (ISP) of RJ, which brings together the State police, responded to the minister’s requests by pointing out that some of the demands are disproportionate or undue. Reducing deaths in police operations by 70%, for example, depends more on criminals than on police officers, said the agency, and setting a goal along these lines could repress agents in the fight against crime and inhibit their legitimate right to defense. Even so, Fachin remains adamant in following this plan and, through a working group within the STF, wants to impose on the State the measures taken by the CNJ, which goes beyond the functions of the Judiciary.

The minister’s actions violate the federative pact provided for in the Constitution, which guarantees states autonomy to formulate their own public policies, such as security.

“It is the role of the public administrator, which in this case is the State government, the Secretary of State Security, to determine which security policy should be followed. It is up to the Judiciary, provoked by the Public Ministry, to curb abuses where they exist, but in no way can the Judiciary draw up a public policy, as is the case in this case”, explains Alessandro Chiarottino, professor of Constitutional Law and PhD in Law from USP. “The STF does not have this competence, neither in the sense of constitutional competence, nor in the sense of this capacity. It is not up to the court to carry out an activity that is typically the responsibility of the public administrator.”

Last December 7, summoned by Fachin, police officers and representatives of the government of Rio de Janeiro participated in a hearing with lawyers from the PSB (Brazilian Socialist Party), author of the action (ADPF 635), and the STF working group. The objective was to charge Rio de Janeiro with the progress of the measures imposed by the CNJ.

The meeting, according to the hearing terms included in the records, was a struggle between the two sides, in which the government of Rio de Janeiro tried to safeguard its federative autonomy. For PSB representatives, there is “bad faith” or resistance on the part of the State. For the State, in addition to going beyond the functions of the Judiciary and the CNJ, the Supreme Court’s working group calls for measures that already exist, or that could compromise public security, or that are in disagreement with laws such as the Code of Criminal Procedure, with the attempt to make the confidentiality of police investigations provided for in article 20 more flexible.

The way out of this situation, according to Chiarottino, would be for Rio de Janeiro to speak out by showing the unconstitutionality of Fachin’s monocratic decisions in the process. “And Rio de Janeiro’s parliamentarians also have an important role, as does the recently created South and Southeast Consortium; it cannot be accepted that state autonomy is disrespected in this way,” he states.

Sources linked to the police fear, however, that governor Cláudio Castro (PL) will give in to pressure from the STF, for fear of actions that weigh against him and that could end up being judged by the court. Castro is being investigated by the Federal Police on suspicion of involvement in a corruption scheme that would include bribes to public agents and misuse of social assistance contracts. When contacted, the state of Rio de Janeiro did not respond to the People’s Gazette on the measures it intends to take to defend its constitutional autonomy.

Experts point out risks to public safety in CNJ plan

In addition to invading Rio de Janeiro’s jurisdiction, the proposals from the PSB, the CNJ and the STF working group should facilitate the activities of organized crime, experts say.

The goal of reducing civilian deaths by 70% in police operations, for example, was inspired by the level reached in the state in 2020, after the STF restricted the activities of public security agents in Rio de Janeiro communities during the pandemic. During this period, according to experts, criminals took the opportunity to acquire more weapons, build barricades and carry out their illicit activities more freely. It is an outlier that, for the ISP, should not be used as a parameter, also because it depends more on the actions of criminals and does not take into account the police officer’s right to self-defense.

“According to the Secretariats, as already stated in their previous statements, the Institution’s goal will always be to seek a 100% reduction in police lethality, with the certainty that its members receive constant training and qualification for this purpose. It is important, however, to emphasize that deaths due to the intervention of State agents do not depend exclusively on their conduct, but above all on the way in which possible transgressors of the law react to approaches”, stated the ISP in a document to the STF.

“Self-defense is the inalienable right of each and every citizen, given that police officers respond to unjust attacks and that any misconduct in such a response is always rigorously investigated. It is necessary to note that the Self-defense, whether one’s own or that of third parties, is an institution that cannot be imposed in the face of unfair, serious and illicit, current or imminent harm.,” the ISP continued.

Another worrying point is the breach of confidentiality in police operations. The plan under discussion in the STF considers all those killed in operations as innocent victims, without considering that this is not always the case, as police officers act in self-defense in confrontations with criminals and are punished when they commit crimes. Even so, the proposal defends, without further explanation, that the defense of these victims has access to ongoing investigations, which violates the aforementioned article 20 of the Code of Criminal Procedure and could hinder the police’s actions.

In the opinion of the former general commander of PMERJ and the Battalion of Special Police Operations (BOPE) of RJ and Public Security analyst, Mário Sérgio de Brito Duarte, the plan to reduce police lethality is an “ideologized way of analyzing issues of Public Security” which assumes that criminals are victims of society.

“What this unfocused and ideological view of police action and crime in Rio can do is hold back the police. The result will be even greater, unrestrained violence, leading the State to complete anomie,” he states.

According to Paulo Storani, former BOPE captain in RJ, the CNJ’s proposals contradict good security practices.

“The heightened concern about the issue of police activity draws attention, but you don’t see the same attention from our jurists, especially from higher courts, with violent crime and how decisions are being made. Brazilian legislation and legal decisions have been developed to make life easier for criminals. And when you show this tolerance it is obvious that you are sending a positive signal that they (the criminals) can continue”, said the former police officer.

Storani emphasizes that during the restriction on police operations in Rio’s hills during the pandemic, there was no reduction in violence. Furthermore, the measure triggered other negative effects, such as attracting criminals from other states to Rio de Janeiro. “What happened was the consolidation of power, with the expansion of the territory carried out by these criminals, going beyond the limits of the community and entering other neighborhoods of that community.”

The CNJ, the PSB and the STF working group also ask Rio de Janeiro for measures to combat “structural racism”, with the “democratization of the formulation of internal anti-racist policy” and the “implementation of affirmative actions in high-ranking personnel ” of high-ranking public security positions. And also the creation of an “independent commission to supervise police activity” in Rio de Janeiro, which would be part of the structure of the CNJ itself – something that completely undermines Rio de Janeiro’s autonomy.

The objective of this new body would be to monitor, monitor and supervise the implementation of measures to reduce police lethality — functions already provided for in the legal system for bodies such as the Public Ministry of the State of Rio de Janeiro.

This commission, formed by “representatives of civil society”, would have access to confidential information about operations or intelligence activities. In formulating the first proposal made by the CNJ, eight NGOs participated; six of them known for their defense of issues such as mass decarceration and drug legalization.

* Marcone Domingos collaborated