STF will judge mandatory compensation even without police fault

The Second Panel of the Federal Supreme Court (STF) will resume the judgment, this Tuesday afternoon (7), which will decide whether the State of Rio de Janeiro should be held responsible for the death of a man who was the victim of a firearm shot during a shooting between drug dealers, police and army personnel in the community of Manguinhos, in 2015.

Technical expertise pointed out that the origin of the shot that killed the boy is inconclusive, that is, no evidence of the participation of public agents in the death was identified, with the possibility that the shot was fired by the drug traffickers themselves. However, the victim’s family requests that the State be obliged to compensate even without proof of police or military involvement.

In the judgment, which was suspended on February 7, three of the five justices that make up the Second Panel had already expressed their views on the appeal against the judgment of the Court of Justice of the State of Rio de Janeiro (TJ-RJ). Kassio Nunes Marques, the case’s rapporteur, denied the State’s request for accountability, while Gilmar Mendes voted in the sense that the State must prove that it is not guilty for each of the deaths during operations, generating compensation in the specific case.

Edson Fachin, on the other hand, suggested that the judgment be suspended until the Plenary judges Theme 1.237, with general repercussions, from which the appeal in question derives. In this judgment, which still does not have a scheduled date, the ministers will express their views in a broad way – overlapping the case in question – on whether or not the state is responsible for death during operations in cases where technical expertise is unable to discover the source of the shot. The Theme will determine the broad understanding to be applied by the entire Judiciary to cases of this type in the country.

understand the case

In the specific case of the young man killed in 2015, the TJ-RJ had denied, in 2021, the possibility of the State compensating victims without proof that the bullet came from the police gun. In the first instance, the decision had been similar.

The victim’s family appealed to the STF and, in May 2022, the rapporteur Nunes Marques dismissed the appeal, claiming that the Supreme Court understands that the presence of a causal link – that is, the existence of some link between the conduct of the agent and the harmful result – is a condition for establishing the objective responsibility of the State in cases of this type.

The victim’s relatives then filed a regimental grievance, which is a resource to question decisions taken individually by a reporting justice. With that, the case was taken to the virtual Plenary, in August last year, for consideration by all members of the Court. Minister Edson Fachin, however, asked for a view withdrawing the trial process.

In February of this year, the case was taken to the Second Panel of the STF, composed of Nunes Marques, Fachin, Mendes, Ricardo Lewandowski and André Mendonça. The rapporteur voted maintaining the understanding that there is no justification for compensation from the State.

In his vote, Nunes Marques mentioned an excerpt from the TJ-RJ decision on the case, which highlighted the impacts on public safety of a decision to generate compensation without evidence of police involvement in the deaths. According to the Court of Rio de Janeiro, “in the absence of evidence that the shot that hit the victim actually came from the firearm of one of the police officers, one of the essential elements for the characterization of the duty to indemnify is removed, being certain, on the other hand , which, understood otherwise to impose responsibility on the State for any misfortune, would culminate in inhibiting any and all activity of repression of crime by the public security forces”.

Gilmar Mendes, on the other hand, voted against it, in the sense that the State must prove that it is not guilty of each one of the deaths during operations. The minister stated that “police operations in Brazil, especially in Rio de Janeiro, are disproportionately lethal and out of control” and that whenever there is death or injury, it is up to the State to demonstrate that the operation was legal and that the damage did not occur because of its own actions. fault. “The State injures and kills its citizens on a daily basis, especially in poor communities. The definition of the civil liability of the State cannot disregard this aspect”, he declared.

After the vote, the rapporteur Nunes Marques decided to reschedule the trial of the case for the session of the Second Panel this Tuesday.

Judgment may be postponed again

It is worth emphasizing that the ministers’ understanding of the process is restricted to the specific case that took place in Rio de Janeiro. What will extend the Court’s vision on the subject to the Judiciary throughout the country is the judgment of Theme 1,237, which will be analyzed by all members of the STF and still does not have a date to go to Plenary.

In the opinion of José Roberto Mello Porto, PhD in Procedural Law and public defender of Rio de Janeiro, Fachin’s understanding is correct in asking for the suspension of the analysis of the appeal until the STF judges the Theme with general repercussions to subsequently apply understanding of the resource.

“General repercussion means that it is an issue that goes beyond the concrete case. Ministers will establish a thesis that will oblige all judges in the country to follow this understanding. When there is an extraordinary appeal with general repercussions, the STF must first define the issue in the abstract and only then judge that extraordinary appeal concretely”, explains Mello Porto, who points out that it is possible that the judgment of the appeal is suspended by the rapporteur and awaits the broad analysis of the Plenary.

Impacts of a possible decision to hold the State accountable even without proof of police guilt

In practice, an eventual decision by the Court to follow Gilmar Mendes’ line of reasoning would oblige the State to clearly demonstrate the guilt of a specific criminal in relation to one or more deaths in operations, which is not always possible, especially when dealing with conflicts that occur in the hills of Rio de Janeiro, dominated by organized crime.

“Under these circumstances it is very common for several criminals to participate in the shooting, and several of them manage to escape. Only a few will be arrested, which eventually also does not allow for a more accurate investigation that arrives at the authorship of the shots”, explains Adriano Klafke, specialist in public security and Constitutional Law.

Regarding the deaths in confrontations between police and drug dealers, he highlights a significant difference in the mode of combat between the two. While the police, as a general rule, shoot while standing still, with controlled cadence and with specific targets in view, the standard behavior among traffickers is to shoot without seeing targets and making countless uncontrolled shots alongside walls over walls. Such conduct considerably increases the possibility that criminals will hit residents.

Klafke points out that if the Court approves a measure like this, there would be direct impacts on public safety in several states, especially by discouraging police officers from taking action. For this, he points out two aspects – the first is the possibility that the State promotes recourse actions against police officers to obtain reimbursement of amounts paid as compensation. The second point has to do with the effects of the “moral condemnation” of police action based on an understanding such as that expressed by Gilmar Mendes. “This is a huge disincentive. The message given to police officers is that they are permanently wrong, and criminals always have a support advantage, including a moral one,” he says.

“If we make a parallel with other measures, such as the one that determined that police operations in Rio de Janeiro can only take place in exceptional, urgent and previously justified situations, this goes towards creating a strong tranquility for criminals”, says the specialist in public security.

“We are in a context where the police are being presumed guilty. There is a presumption of illegality in police action, when in fact we should have a presumption of legitimacy, unless investigations show the opposite, that the police acted out of guilt or malice, and that this resulted in some harmful result to anyone,” he continues. .