The International Human Rights Framework on the Right of Peaceful Assembly
Brazil is a State Party to the 1966 International Covenant on Civil and Political Rights (ICCPR). Article 21 governs the right of peaceful assembly, providing that:
The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.
Brazil is also a State Party to the First Optional Protocol to the ICCPR, which allows individuals to petition the Human Rights Committee if they believe the State has violated their human rights as protected under the Covenant.
At regional level, Brazil is a State Party to the 1969 Inter-American Convention on Human Rights. Article 15 governs the right of assembly:
The right of peaceful assembly, without arms, is recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and necessary in a democratic society in the interest of national security, public safety or public order, or to protect public health or morals or the rights or freedom of others.
Brazil has accepted the competence of the Inter-American Court of Human Rights to hear complaints by individuals under the jurisdiction of the State that their rights under the 1969 Inter-American Convention on Human Rights have been violated.
The Domestic Legal Framework on the Right of Peaceful Assembly
Under Article 5(XVI) of the 1988 Constitution of Brazil,
all persons may hold peaceful meetings, without weapons, in places open to the public, regardless of authorization provided that they do not frustrate another meeting previously called for the same place, subject only to prior notice to the competent authority.
Under Section 139(IV) of the Constitution, however, during a state of siege, freedom of assembly may be suspended.
In April 2018, the Supreme Court began hearings in case RE 806339, which concerns the scope of Article 5(XVI) of the Federal Constitution.
There is no detailed legislation on the right of peaceful assembly or the policing of assemblies. Brazilian law does not restrict public meetings, demonstrations, and protests, but assemblies require advance notification. The exercise of the right does not depend upon the consent of public authorities.
The justification for advance notification is to avoid two meetings at the same place (as one meeting could frustrate the other) and to guarantee other constitutionally important freedoms and rights, such as the right to freedom of movement and to public safety, which includes both the safety of the demonstrators and of the general population.
In June 2011, the Federal Supreme Court ruled in favour of public demonstrations that defend the legalisation of drug use, such as the Marijuana March (Marcha da Maconha). The Court held that the constitutional rights of freedom of assembly and freedom of expression must be respected. The Court stated that the marches should not be considered crimes, because they do not foster or defend the use of drugs, but rather are designed to bring about a review of public policies. The case had been filed by the Federal Prosecutor's Office, which had sought an interpretation of Article 287 of the Penal Code. Article 287 lays down a term of between three and six months in prison and a fine for any person who publicly justifies, defends, or praises criminal acts or the perpetrator of a crime.
In 2013, Law 6,528/2013 was approved in the State of Rio de Janeiro and established rules for public demonstrations and prohibited the use of masks. The constitutionality of this law has been challenged before the Federal Supreme Court (ARE 905149).
The Legal Framework on Use of Force During Assemblies
The Use of Force
International Legal Rules
Under international law, the duty on the State and its law enforcement agencies is to facilitate the enjoyment of the right of peaceful assembly. According to the 1990 United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials:
In the dispersal of assemblies that are unlawful but non-violent, law enforcement officials shall avoid the use of force or, where that is not practicable, shall restrict such force to the minimum extent necessary.
All force used by police and other law enforcement agencies must be necessary for a legitimate law enforcement purpose and proportionate to that purpose.
A 2014 federal statute calls for law enforcement agencies to prioritise the use of less-lethal weapons, provided that such use does not endanger the physical or mental integrity of officers. Use must comply with the principles of legality, necessity, reasonableness, and proportionality.Art. 2, Federal law on Police Use of Less-lethal Weapons, Statute Nº 13.060 of 22 December 2014.
The Use of Firearms
International Legal Rules
According to the 1990 United Nations Basic Principles, in the dispersal of violent assemblies, a law enforcement official may only use a firearm against a specific individual where this is necessary to confront an imminent threat of death or serious injury or a grave and proximate threat to life.
The 1941 Criminal Procedure Code provides that "if there is resistance to arrest", law enforcement officials can "use whatever means necessary to defend themselves or to overcome resistance".Art. 292, 1941 Criminal Procedure Code.This includes use of deadly force.
According to 2010 national interministerial guidelines on the use of force by law enforcement officials,Portaria N° 859, 31 December 2010.officers "should not discharge firearms against persons except in cases of legitimate self-defence or imminent threat of death or serious injury." So-called "warning shots" are not considered acceptable because of the "unpredictability" of their effects.
State Compliance with its Legal Obligations
Views and Concluding Observations of United Nations Treaty Bodies
Brazil has not come before the Human Rights Committee in recent years.
The issue of peaceful assembly was not addressed in Brazil's 2017 Universal Periodic Review under the UN Human Rights Council.
There has been no case before the Inter-American Court of Human Rights concerning the right of peaceful assembly in Brazil in recent years.
Views of Civil Society
As Article 19 has reported, "there is no specific legislation about the use of force by police during protests and other gatherings, which gives the State very broad powers when dealing with demonstrators."
According to the Civic Freedom Monitor, authored by the International Center for Not-for-Profit Law and published in 2019:
It is noteworthy that police violence often occurs against demonstrators opposing the government and representing less advantaged social groups, notably black and poor communities. The topic acquired significant relevance during popular demonstrations that took place in Brazil in 2013, which initially were against the increase of bus fares in the city of São Paulo and after violent repression by the Military Police of the State of São Paulo, such protests grew, gained strength and incorporated other agendas concerning the guarantee of freedoms and social rights.