The well-known “ADPF das favelas” (ADPF 635), an action that aims to reduce the lethality of police operations in Rio de Janeiro, may be reaching its final chapters. The Federal Supreme Court (STF) must decide, starting next Wednesday (13), whether to approve the final report prepared by the National Council of Justice (CNJ), which could lead to the closure of the process. However, legal experts warn that ADPF 635 sets precedents for similar interventions to occur in other states.
Since 2020, the STF has been interfering in public security in Rio de Janeiro through ADPF 635. This behavior began when the Brazilian Socialist Party (PSB) filed the lawsuit in 2019, leading the Court to point out the State’s omission in combating police lethality . Over the past four years, the Rio government has had to comply with a series of Supreme Court decisions. The Court’s actions violate the federal pact provided for in the Constitution, which guarantees states autonomy to formulate their own public policies, such as security.
Throughout this period, actors such as the National Justice Council, the Public Defender’s Office and countless left-wing NGOs participated in the process, which defined the actions that should be adopted by the Rio de Janeiro Security Secretariat. During the pandemic, Rio de Janeiro was prevented from carrying out security operations in favelas. According to the Secretary of State for the Civil Police of RJ, the interruption of operations favored the dominance of criminal factions in the communities. Furthermore, the decision of the ADPF rapporteur, Minister Edson Fachin, also allowed barriers to be created by militias, which, to this day, creates difficulties in the arrival of public services in these regions.
STF decisions call into question the autonomy of states, says jurist
Last week, Minister Edson Fachin presented a report with more than 40 pages summarizing the ADPF’s progress. It is expected that, this Wednesday (13), the rapporteur will read this document, as well as the planned oral arguments. Subsequently, ministers must define whether there will be approval of the final report of the CNJ working group, sent to Fachin in April this year.
For Alessandro Chiarottino, professor of Constitutional Law, although ADPF 635 is possibly close to its closure, it has created worrying precedents when it comes to judicial activism. The Judiciary Branch, he explains, cannot determine public policies, specific to the Executive Branch.
“This policy today is for Rio de Janeiro. Tomorrow they can file a new ADPF in relation to the same matter in any other state. So, I mean, it seems to me that this is very much a chapter, but not an end point”, he assesses.
The professor also adds that the decisions have an important impact when it comes to the autonomy of states. “Our Constitution says that public security decisions are primarily up to the states. So, there is a federative problem when the STF does not comply with these regulatory precepts. So, what does state autonomy look like?” asks Chiarottino.
In addition to usurping the powers of the state Executive, the fact that the STF chooses an approach that favors the actions of criminals is yet another reason for concern, in the view of Fabrício Rebelo, coordinator of the Center for Research in Law and Security (Cepedes). “The situation is even more serious when we observe that these guidelines are not technical, but ideological, following an agenda that does not prioritize the security of society, but guarantees for the criminals themselves”, he adds.
CNJ opinion wants to improve communications about police operations to the Public Ministry
The considerations in the CNJ’s final report also contain recommendations that the group believes should be adopted by the government of Rio de Janeiro. Among the suggestions, the body recommends hierarchical restructuring to guarantee the independence and autonomy of police experts, in addition to allocating more public resources in the area and hiring more forensic professionals.
In previous decisions related to the ADPF, the STF required the police to inform the Public Ministry about the police operations that will be carried out, as well as various data subsequent to the actions.
“Police forces must provide their data in a systematized ministerial channel, with structured and reliable data, which can be monitored in real time”, states the CNJ’s final report. The text also adds that “occurrence records, expert reports and other information on criminal investigations must be included, as soon as such documents are produced, in order to enable a more concomitant/contemporary external control of police activity by the Public Ministry”.
The body also evaluated the functioning of the Police Operations Monitoring Panel, the main communication instrument between the police and the Public Ministry, and criticized the lack of objective parameters when dealing with “exceptionality”. Normally, the term is used to justify interventions carried out on an emergency basis.
“There is no doubt that there will be another concern for the police in carrying out their duties, as they will be subject to a much greater risk of seeing their actions labeled as abusive, generating personal liability”, analyzes Rebelo. According to the public security researcher, this type of action places “the police officer as the true enemy of society, when he should be its main ally”.
Ideological themes mark the CNJ’s previous opinion prepared in a group composed of NGOs
The report that will be analyzed this Wednesday was preceded by another opinion, presented in April 2023, which included a series of ideological themes. The fight against “structural racism”, through the “democratization of the formulation of internal anti-racist policy” and the implementation of “affirmative actions” in high-ranking public security positions were some of the suggestions.
The presence of ideological agendas is not surprising when analyzing the composition of the group responsible for preparing this first document. Of the 35 participating members, only six represented the police (civil, federal and military), while eight defended the interests of non-governmental organizations.
Obligations that required high technicality were defined by the STF during the four years of processing of ADPF 365, such as the prohibition on the use of helicopters during police operations or the installation of cameras on police uniforms.
“The ADPF matter itself is a public policy, which by definition cannot be defined by the Judiciary, because it does not have the knowledge of the circumstances nor the appropriate technical knowledge to resolve a public policy of this type”, concludes Alessandro Chiarottino .
