Recognition, Redistribution and Popular Participation: Towards an Integrative Judicial Policy

Strategic Litigation Workshop in the Public Defender's Office, XIII CONADEP

Strategic Litigation Workshop in the Public Defender's Office, XIII CONADEP

The XIII National Congress of Public Defenders received, on the afternoon of November 15, the Office of Strategic Litigation in the Public Defender's Office, proposed by the Justice Forum in partnership with the Human Rights Strategies collective, created in the wake of the National Seminar held in March on the same theme.

Strategic Litigation Workshop in the Public Defender's Office - XIII CONADEP

Strategic Litigation Workshop in the Public Defender's Office - XIII CONADEP, November 15, in Florianópolis

CONTEXT

The Seminar “Strategic Litigation on Human Rights: Uses, Senses, and Practices in the Public Defender's Office”, held in March at 2017 in Rio de Janeiro, provided a first systematic debate on the topic with the participation of advocates working in different specialized bodies and in various contexts. From that moment on, a network was set up that seeks to consolidate interinstitutional channels of communication, joint action groups and the means to produce faster and more dynamic responses to the high impact structural demands. New activities come to the fore on this theme, such as the Seminar “Strategic Litigation and Right of Resistance: Challenges for the Public Defender's Office and Social Movements”, to be held in October in Fortaleza. The workshop continued its efforts to establish a structuring agenda for the next period, as well as to debate priority axes of formation, institutional action and judicial policy for strategic litigation.

Its objectives were to strengthen the network constituted in the activities carried out in 2017 through the socialization of the accumulations and incorporation of new actors, to present the state of the art of the main pending accumulation points and to establish a structuring agenda for the next period.

Élida Lauris publishes the products launched by the Justice Forum and contextualizes the Workshop

Élida Lauris publishes the products launched by the Justice Forum and contextualizes the Workshop

METHODOLOGY

The workshop was designed to happen in three moments. 1 Momentum: Presentation of the accumulation, products and documents related to the seminars on the theme held in 2017. Moment 2: statement by colleagues, alluding to what each one understands by strategic litigation and debate to evaluate the main points to be developed regarding the performance / strategic litigation of Defensoria. For this moment, a dynamics of division into groups was indicated, after which the reading and debate of the main points raised would be made. Moment 3: Proposed agenda of actions and activities between the Defenders and participating organizations, observing criteria that take into account regional specificities. The workshop would be aimed at building the commitment of those present, and these should be the agents of accomplishment of the proposed agenda.

REPORT

Starting in a smaller room, the workshop, with the arrival of participants, was moved to a large meeting room that was being used by Congress. The opening was brought by Patrícia Magno, coordinator of the Workshop, and Élida Lauris, who resumed the main points of the year regarding the strategic litigation in the Public Defender's Office, highlighting the result of the Strategic Litigation Seminars on Human Rights and the Defensive Seminar in the Prison and the Antimanicomial Fight, whose reports were being published during the Congress. Another socialized product was the Casoteca of Strategic Litigation on Human Rights, which brings together more than sixty cases submitted to the contest conducted by the Defensory and the Justice Forum in March. Élida also pointed out the conjuncture of consensus on human rights violations in Brazil and the need arising from organizing resistances through the dialogue between the Public Defender's Office, popular advocacy, social movements and the University.

Precisely as a way to articulate these four actors that, on the initiative of ANADEP, RENAP, the Justice Forum and IPDMS, the e-book Public Defender, Popular Legal Advisory and Social and Popular Movements was launched: a necessary articulation. Rodrigo de Medeiros made the presentation of the work, consolidating its launch and inviting those present to know the book.

Participants analyze the material delivered at the Workshop

Participants analyze the material delivered at the Workshop

The next moment was marked by a presentation by those present, who were provoked to indicate their areas of activity, whether they had been in previous activities on the subject and what their expectations were. Forty-three public defenders from all regions of the country and all areas of activity were presented, with emphasis on defenders from remote locations of Roraima and Amazonas, who reported a great institutional loneliness that poses a great challenge for a strategic action.

Patricia Magno collected points from the speeches of the presentations and the common point of the speeches is the centrality of the vulnerable person, the final recipient of the Public Defender's Office. For her, that moment represented a logic of counter-hegemonic action that aims to enhance other actions in the same direction, which will always cause a discomfort to the constituted power structures. He argued that defenders and defenders acting counter-hegemonically should do so in an articulate manner, but without waiting for the day when the institution is powerful enough to support these actions. She brought as reference the text by Boaventura de Sousa Santos that asks “Can the right be emancipatory?” In which, according to the coordinator, she will reflect on the law as an instrument of power and its use to subvert the order that it itself structures itself. ensure. Patricia maintained that, depending on how it is managed, the right can be emancipatory, even if it is not capable of destroying the capitalist system. Law is at least capable of producing cracks.

It has established a trajectory of conflicts along a line in which there is a pre-judicial moment, during which conciliation and mediation can be handled, a judicial and other post-judicial moment, which demands actions by the Public Defender's Office, which may include rights education. , hearings, participation in boards, committees, working groups in the three powers, monitoring and oversight. He recalled that a difference between intuitive and strategic action is that the latter is structured in a planning, which requires a concern to minimally follow the result of the work developed. The strategic treatment of a demand also needs to start from an active dialogue that seeks the establishment of partnerships that allow the circulation of knowledge, so that the Public Defender's Office can reverse its role and learn the practices and knowledge of the community.

Vinícius Alves stressed the importance of understanding strategic action as part of an institutional policy, so that efforts, such as resources, employees and different sectors, such as information technology and communication, are coordinated for effective strategic actions beyond those within functional autonomy of each public defender. In addition, it suggested understanding the strategic action not only directly in defense of vulnerable populations (end activity of the Defender's Office), but also as an impact on the institutional structure of the Public Defender's Office (middle activity), in order to ensure the internal ambience favorable to the institutional purpose. and in order to collaborate with the planning and selection of the institution's strategic action priorities. An example of this kind of strategic action focused on the middle activity would be one focused on the implementation of the External Ombudsman.

Patricia considered that the defender can never be a mere executor of institutional policy, as the policy already described in the Constitution and the legal order. It also understands that the institutional policy is very volatile and that it cannot be depended on to advance in necessary actions, so that a strategic action for middle and end activity is not conditioned, under penalty of producing a plaster of the defender / The. Advocates sometimes act beyond institutional management, which may boycott this.

Other participants contributed to this debate. They stated that an institutional policy in support of strategic litigation is necessary as the defender himself is engaged in a bureaucratic activity and it is up to the defenders as a whole to implement these policies, but it is also It is essential that the defender continues his or her autonomous actions, as he / she is sometimes boycotted by the institutional management. Another participant argued that even the public defender who prefers to perform a bureaucratic performance, someone with an audiologist profile must be respected, as he / she is also a member of the institution and all profiles and work are required.

This last view was challenged by a defender who invoked the role of the Public Defender as a participatory and democratic institution, to join forces with the External Ombudsman, which he is a great differentiation in the face of prosecutors. He argued that law is a tool that can be used for good and for bad. And that, in order to be used for good, it must use rights education and a performance that may not be very formal, but that fits in with the reality of local organization.

Vinícius proposed a synthesis of the debate between the role of the defender in the context of his functional autonomy and the strategic action at the institutional level based on the analysis brought by Maria Tereza Sadek in a seminar held by the Justice Forum in May of 2015, when the teacher He criticized the use of functional autonomy as an individualistic guarantee for the defender not to follow institutional guidelines and not as a guarantee of the defender's working population against constraints in the defense of rights. It argued that if strategic activity at the end activity level based on functional autonomy is possible regardless of the support given to it by the institutional management, strategic activity at the middle activity level can only be collective and is fundamental for the expansion of the scope of the activity. of the defenders.

Patricia continued the workshop citing the importance of certain strategies, such as campaigns, and referred to the campaign for freedom of Rafael Braga. It also touched on the issue of the paradigm case, the situation of which needs to exemplify a pattern of state violations against the person. He reported that sometimes this subject is worked on the key of a structural case.

After some speeches in which participants briefly describe their cases, the workshop had to be interrupted as the Congress program continued.