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

Informe - Seminar “Democracy and Public Defender in Latin America”

December 6th, 2019

Rapporteur: Isabela Coimbra [1] and Frederico Augusto Auad [2]

Review: Vinícius Alves [3]

Women's Samba

A samba of black women opened the activities of the Seminar “Democracy and Public Defender in Latin America: An Analysis of e (In) Volution in the Current Historical Context”. The space also marked the event for its symbolism. Pretos Novos Institute received on November 10 public defenders, researchers, social movement activists and civil society organizations to promote a contestative cultural dialogue of the racist dynamics still in force in the Brazilian justice system.

The song, carefully chosen for the occasion, was performed by the group Moça Prosa, which excited the audience to the songs of Master Sala dos Mares (Aldir Blanc Mendes / Joao Bosco De Freitas Mucci), Hardworking People (Jack Rocha / Luana Rodrigues / Claudia Coutinho) and We are all Maria (Luana Rodrigues / Jack Rocha / Claudia Coutinho), to name a few. Samba was interspersed with provocations by Adriana Cruz, federal judge; Lucia Xavier, coordinator of the NGO Criola; Livia Casseres, public defender working at the Center for the Fight against Racism - NUCORA. Another important presence was the researcher Ana Míria Carinhanha, who presented the main results of the research “Justice System in focus: the fight against racism in the Public Defender”, produced in a partnership between the Justice and Criola Forum.

The Seminar, organized by the Justice Forum in conjunction with Associations of the Public Defender's Office at the Inter-American [4], National [5] and State [6] level and in partnership with the NGO Criola and the Public Defender's Office of the State of Rio de Janeiro. The main points of debate are the confrontation with structural racism that still permeates the Public Defender's Office and the challenges posed to the free public model of legal assistance in Latin America. He also dedicated a special tribute to the now-defended public defender Sara Quimas.

Moça Prosa Group animates the women's samba wheel.

Opening table and tribute to Sara Quimas

The second day of the seminar, November 11, concentrated the tables and debates that took place at the headquarters of the Association of Public Defenders of the State of Rio de Janeiro - ADPERJ. The opening table was highlighted by Rio de Janeiro Public Defender Rodrigo Pacheco, who designed the context in which discussions are taking place today. The horizon of financial and political crisis in Brazil and in particular in Rio de Janeiro has led to the increase of police violence, the failure of public services and the increase in the number of people served by the Defensoria. The institution, in turn, makes more use of instruments such as collective actions and invests more in direct dialogue with the population, either through an active External Ombudsman or projects such as the Favelas Circuit. He also stressed the need to reflect on how to select the entry of defenders and the electoral process for the Ombudsman, in order to put the racism debate at the forefront.

Rio de Janeiro's General Public Defender, Rodrigo Pacheco, opened an institutional table.

ANADEP's president, Pedro Paulo Coelho, brought the theme of democracy to the debate. For him, we are facing a context of disruption of formal democracy, which poses major challenges to an association that claims to be progressive. It is a conservative environment, a distortion of the concept of human rights, criminalization of social movements, with a minimum state policy that at the same time imprints a punitive maximum state policy. The biggest target is black bodies as a form of social control.

Juliana Lintz, president of ADPERJ, underscored the work the association has been doing with the Legislative Houses to increase the Public Defender's budget via amendment. He cited the concern to empower employees to care for women victims of violence by offering a multidisciplinary team that also promotes psychological support to women. She is of the opinion that it is up to the association more than corporate defense, and dialogue with civil society should be strengthened.

The fact that even today, 12 Defenders did not implement the External Ombudsman, including the DPU, was recalled by Pedro Strozenberg, DPRJ General Ombudsman. According to him, the Ombudsman is a fundamental pillar for the democratization of justice by presenting the External Ombudsman as an important institutional innovation. The panel followed with the speeches of Rosane M. Reis Lavigne, who reinforced the partnership arc and presented the activities being developed by the Justice Forum and the Public Defenders' Collective in the field of judicial policy, and by Lorena González Castro Feijóo, President from the Association of Public Defenders of the Argentine Republic - ADePRA, which brought to the table the task of claiming rights, promoting peace and democracy in Latin America. Lucia Xavier ended by calling for the inclusion of groups historically excluded from access to justice, targets of a state that promotes the violation of rights even through the justice system.

The honoree of the day was retired public defender Sara Quimas, the first woman to be president of ADPERJ and with a strong role in the defense of a democratic public defender, having been an important partner in the creation and strengthening of the Justice Forum and responsible for instituting the Pasantía program. Mercosur Public Defenders, which has been conducive to exchanges between public defenders of the Southern Cone. After his retirement, he embarked on the project for the reception and literacy of homeless people, which is being developed today at the headquarters of the Public Defender's Office in Rio. demonstrates that its commitment to defending the rights of vulnerable people remains. Access the text of the tribute.

Sara Quimas (right) is honored by ADPERJ President Juliana Lintz (left) and Justice Forum coordinator Rosane Lavigne (center).

Panel I: Presentation of the research “The Justice System in focus: the fight against racism in the Public Defender”

The objective of the research was to answer how the Public Defender's Office has positioned itself in the fight against racism and for this it was applied a separate questionnaire in 7 sections, addressed to the Public Defender's managers. Based on the results, general recommendations were made. The data collected, as presented by researcher Ana Miria Carinhanha, inform that the Public Defender is a female and white institution, but coordinated by men. She warns that there are few indicators of race and low level of information about the profile of their trainees and servants. Only the states of São Paulo, Rio de Janeiro and Rondônia presented dismembered race data. The latter was the only one who presented more blacks and blacks in the Public Defender's Office than whites and whites.

Ana Miria Carinhanha presents the research.

The study also reveals that racial quotas in the Public Defender's Office were instituted concurrently or later with disability quotas and that this policy is obstructed despite its formal implementation. The administration is mostly composed of white men. 19% of women only occupy senior management positions. In addition, no one declared themselves black or black in the questionnaire applied to this administrative section of the Public Defender's Office. That means all black men call themselves brown. Regarding the training courses, there was a lack of topics related to racism.

Some recommendations are: i) Public Defenders' study centers should invest in the production of data on the theme of racism; ii) the College of General Public Defenders - CONDEGE should create a specific thematic commission to elaborate action strategies to combat racism; iii) ANADEP should appoint at least one advocate per State for the articulation of Regional Councils that, together with civil society, create and implement guidelines and strategies to confront racism; iv) creating a protocol to serve black people as a vulnerable group. For more information on research, visit the report.

The researcher and criminologist Felipe Freitas, taking into account the scenario of coup d'état in Bolivia and Brazilian politics, provoked those present: “How to establish a fight in which the power has no appreciation for the rules of the game? Why should those below have to abide by the rules of the game, and those in power do not comply with those rules? ”For him, the project of domination is a public-private extermination consortium since it is never an action of the State alone, not even an enterprise of private enterprise and neoliberalism. And in this context, thinking about racism in institutions should generate discomfort and discomfort.

Felipe Freitas points out the need to produce discomfort when talking about racism in Brazil. Next to it was Elida Lauris and the Bahia Public Defender Rafson Ximenes.

He reiterated that racism structures power relations, with social phenomena and ideology that best explain the fragility of the idea of ​​social and institutional harmony. He defended the importance of highlighting the political conflict and overcoming the illusion of normality and neutrality in the justice system. "It is not possible for the Public Defender's Office to work well if it maintains harmonious relations with the Court," he said. However, he stressed that the dispute must take place in the public space, not in private spaces, so that society can participate and that it is fundamental to break with the idea that it is possible to overcome racism without conflict.

Élida Lauris, Coordinator of the Justice Forum, supported the FJ's position that the social movement and black women's organizations are of great importance to guide the racial issue in the production of knowledge within the justice system institutions, in particular the Public Defenders. . He also pointed out that in Brazil the Public Defender's model has allowed for a more qualified debate on race and gender, with the specialized women's and racism-fighting centers, as well as with quota policies, although quotas follow a still very model. in which each Ombudsman implements in his own way.

Regarding the results of the research, she noted that the main issue is that the Ombudsman is an institution within a racist and hegemonically white system and is not yet in a position to produce its own data to demonstrate the production of institutional racism within the institution, due to the lack of data disaggregated by race to allow a more powerful analysis. However, he argued that it is possible to assess the existence or otherwise of the institutional commitment to combat institutional racism. His hypothesis is that the Ombudsman is the most favorable place to deal with the theme of racism in the justice system, but there is a lack of data to measure this commitment. For this it is important to take into account more structural examples of participation, such as participatory budgeting and the ombudsman offices with black women ahead whose famous cases are those of the states of Bahia and Ceará.

Lucia Xavier, next to Ana Miria and Livia Casseres.

Lucia Xavier argued that the racial and ethnic issue goes unnoticed in the process of addressing the vulnerability of access to justice and that the first steps to change are: i) recognizing the trivialization of cases of racism when they come to justice, which are hardly recorded as case of racism. "Security officials are unaware of the premises that underlie some hate crimes, especially racial issues," she noted. ii) the recognition that the state is the main violator of the black population and the main barrier to access to justice when bureaucratizing interpersonal relationships and when its agents reproduce racist hegemonic beliefs and values. iii) the need to combat racism in the modus operandi and in police and military activities; iv) the need to guarantee the right to come and go of the black population; v) end of genocide of the black population; vi) remove from all organs of justice symbols of any religion; vii) the need to create specialized sticks and nuclei to address the racial issue; xi) Law school curricula should be encouraged so that the legal operators know about the violations of the black population and their racial and social condition; xii) it is necessary that the organizations of the system be able to raise the citizenship condition of these subjects; xiii) implement racial quotas in the justice system as a measure of reparation for this social inequality; xiv) the law must be complied with; xv) it is necessary to incorporate class declaration measures (100 measures).

The intervention of the participants was coordinated by Livia Casseres, who proposed questioning to those present about the situation of the fight against racism in other Public Defenders in Latin America, in view of the participation of the members of the pasos of defenders of Mercosur. The Argentine public defenders present were surprised about the State's action and institutional racism in Brazil, with repercussions on the Public Defenders, as revealed by the research. They said that in Argentina there is no prevalence of the racial issue, because the black population is very small, having been exterminated, either by state action or disease in the nineteenth century. However, there is a division of who has rights and who does not have to be foreign, which is much debated in the media. Added to this is discrimination against descendants of native populations and non-European immigrants.

Paraguayan public defender Lourdes Amarilla said that in Paraguay, until the year 1811 the population was mostly black, and that their participation in the wars, especially the Paraguayan War, was crucial for the extermination of this population. He said that the University of Asuncion today occupies a territory that belonged to the black population, which was never compensated for the vacancy and that this year passed a quota law for indigenous people in public universities.

Delegation of public defenders participating in the Pasantía de Defensores de Mercosur.

The Uruguayan delegation argued that in their country there is racism and black population, although not in a very high number. He informed that a quota law for the black population was created in public tenders, and the ancestry must be proven. With regard to women's access to Public Defender positions, she said that most defenders are women, although legal careers are predominantly male. There is a quota in Uruguay for women in political positions.

The Bahia Public Defender Rafson Xinemes congratulated the group for conducting the research and defended the need for racial quotas to enter the career. He argued that selection by the quota system was usually ineffective, as the persons selected by the quota system would also be in broad competition and indicated the changes implemented to correct the process. The quota verification interview then took place at the beginning of the competition, not at the end, in order to allow access by black people who would not have had their positions occupied by people who would not be covered by the quotas. But he reasoned that in order to combat racism, it is not enough to incorporate a black person into the institution's framework. It is important that you can be an ally in the fight against racism.

Lucia Xavier concluded the debate by pointing out that she thought the myth of racial democracy was a Brazilian thing, but now she sees that it is not. It spread throughout Latin America, whose racism was the result of fear caused by the Haitian Revolution. “The fact that a group is a minority in a society does not mean that it does not suffer racism. Going unnoticed is precisely what constitutes racism, ”he said.

Panel II: Strengthening the Public Model of Access to Justice and Democratic Participation in the Public Defender's Office

The second panel of the day was opened with the contributions of the Federal Public Defender Gabriel Faria Oliveira, who mentioned the multilateral discussion and the public debate with civil society, as promoted by the Justice Forum, as one of the elements of strengthening the Public defense. He stressed that today we are experiencing a political change for an ultra-liberal government, in which the capitalist agenda has been imposing itself in some proposals, bringing difficulty in understanding the human rights agenda in its technical dimension. And on the other hand, despite all this context, the Public Defender's Office was not an object of question by the government until then.

He revealed that when the current president was elected, he had the opportunity to talk to the president. As he left the conversation, he had the impression that the Public Defender's Office was seen as an important institution. He reported that the executive branch employees assigned to the DPU were retained in order to continue the operation of the institution, by means of an interim measure. However, he asked: “How can we develop in this moment of liberal agenda, the resurgence of rights and advances in access to justice as a model of Public Defender”? He says he is concerned about the budget. “The Ombudsman is unable to increase its services by the readjustment index. The correction for the Federal Defender's budget is 3% while the services contracted by the Defender's Office have a larger correction of 5%. It is necessary to think about the development of access to justice, which is deficient within the Union. The budget vector is one of the main points for development ”, he warned.

In the center, the Argentine public defender Fernanda Puleio

He defended the participation of the Southern Cone Defenders in the discussions of the ODS 16.3 of the UN 2030 agenda. For the Brazilian State, the Attorney General's Office was present in the discussion, however, it is a theme that the Ombudsman should have a voice and discuss within the UN, as it is access to justice. He concluded by saying that the Public Defender's Office in the Brazilian Democratic State is going through a challenging moment, perhaps the first moment of a liberal national policy, in which the existence of PD will be proven, tested and reinvented.

María Fernanda López Puleio, Argentine public defender, recalled that the discussion about the meaning of a public model of access to justice in the inter-American context was intense and old. When this discussion took place, the countries of the Southern Cone had for many years already had the institutional model of access to justice organized in the state and detached structure of the judiciary. In Argentina, he said, the extension of autonomy to the Ombudsman was due to the posture of the then Attorney General of the Republic of Argentina, who, fortunately, was quite aware of the rights of the vulnerable. From their advice on 1994, the constituents learned that he was also the chief defender. He said that this is still a model that continues in some Argentine provinces, where the prosecution chief is at the same time chief of the defenders. At national level, thanks to this prosecutor, there was the separation and autonomy of the Defender of the Nation.

As a public policy agency for access to justice, the Public Defender's Office defended that it is necessary to define what type of vulnerable population is the target of the policy, the vulnerability factors and to stimulate access to justice strategies. As for Argentina, he reported the example of the introduction of a precautionary measure in the Inter-American Commission on Human Rights, as indigenous people were poisoned by water in the midst of a conflict between the right to water and property. For her, an advance is to consider the public model of access to justice as a public policy operator. In this sense, one must also consider that the problem of justice arises long before a judicial conflict or an administrative process. The public model, therefore, is effective for resolving cases before they reach justice, unlike the private model that obtains conflict when it is already formed. He recalled that another function of the Southern Cone Defenders is to be human rights protectors. He mentioned that, in the inter-American system, art. 8.2.e of the San Jose Pact of Costa Rica consolidates an indispensable right to have a defender offered by the state as a judicial guarantee.

Mexico has a constitutionally contemplated Public Defender's system, which includes management and technical, but not budgetary, autonomy, said Mexican public defender Lourdes Cristina Torres Pérez. He presented the framework for the care of minorities, according to which several specialized units were created, such as the technical secretariat of torture and gender equality. He reported that the Mexican federation is made up of 31 states plus Mexico City and that in the states Mexico the Defender is behind the autonomy of the National Defender.

CEJIL lawyer and director Alexandra Montgomery shared her assessment that our justice is still a bureaucratized, elitist environment that you cannot expect to have access to. “This system of justice is proved in practice inaccessible and oppressive. To say that it oppresses, is that it is selective. So that's how, when you talk about the justice system you talk about the space of power, ”he said. He argued that in order to build a public model of access to justice, institutions need to reinvent themselves for the role of proponent of justice and that, for this, it is very important for all organic staff to understand that these institutions have weaknesses. And one of them is the profile of the defender who enters the career. He stressed that there must be a minimum of empathy with the demands he is dealing with and the people they are dealing with, which is recognition of the other.

“The role is to recognize the privilege to access these spaces, study and pass a contest; and because they involve certain privileges, they must be recognized and given up for building a fairer society. Most of these people we treat as vulnerable would not be able to live one day in their way of life. ”

She warns that the institutions are racist and that the people who occupy the seats in these institutions are racist and do not want to give up their privileges. “And yes, they are all racists; you are racist, ”he said, saying that it is also important to understand that machismo and patriarchy are also structuring. She reported that the rate of dead black women increased exponentially while that of white women decreased. Given this fact, he said: “What is the public policy I will adopt to reduce gender violence, racism, patriarchy? When you think about the public model, you have to look into the bowels of this sick society to know what you are going to do with it. ”

In the center, the Justice Forum's articulator, Vinícius Alves

The president of ADPEC, Amélia Rocha, highlighted that, internally, the Public Defender's Office is still an institution in dispute, but despite that, art. 3º of the Organic Law of the Defender brings bases for the performance of all its members. Within the public model, he stressed that the issue of stability is not a privilege, but something that makes it possible to act in some cases without defenders afraid of retaliation. For her to strengthen the public model is the approximation between the DPU and the DPE, in a context in which 80% of the Brazilian population needs a strong Public Defender.

The researcher and member of the Justice Forum, Vinícius Alves, presented the call for papers for the book “Access to Justice in the Americas”, which aims to bring contributions from Latin America and reverse the hierarchy of knowledge between North and South. He pointed out three contradictions main. According to him, when we think of a public model, we see that the states that implemented the social welfare model did not create Public Defenders, which happened in Latin American countries, which did not go through a social welfare model. For him, the strength of the Public Defender's Office would show a failure in the formation of the welfare state in Latin America. Is the Ombudsman responsible for collecting the crumbs of a welfare state on our continent?

Secondly, State law is a right within a plurality of legal orders and, for the most part, this is not the right created and assumed by vulnerable people assisted by the Ombudsman. Is the Ombudsman an institution responsible for the implementation of a right outside the vulnerable populations? His third point dealt with the relationship between institutional politics and general politics. He recalled that public defenders occupy a certain political place in society in general, being on the fringes of the wealthier classes, and also having the task of making the dispute in their class segments. In this sense, it is important to recognize the role of social communication, the dispute over hegemony, to be a counter-voice against the majority discourse. “The question that arises is whether the Public Defender's Office wants to be an institution that mediates social conflicts? It's a very small position, ”he mused.

Work group

After the debates at the last table, those present organized themselves to think about articulations between the Defender's Office and civil society. It was then that was brought the experience of holding mock juries and popular courts in Buenos Aires. The relationship of gambling with the community arouses interest, according to a methodology of sharing and sharing rights. In this context, the proposal of incorporating the dynamics of the theater of the oppressed was brought to enhance the process of mutual education between the population and the Ombudsman.

Those present also indicated the need to strengthen ties between the Defensoria and universities, with the promotion of research presentation spaces that involve relevant knowledge for access to justice. These proposals added to the need for data production, increased transparency in budget execution and the choice of institutional development policies, and the creation of initiatives to address racism.

Get to know Seminar final document here.

[1] Student and researcher at the National Faculty of Law - UFRJ.
[2] Bachelor of Social Sciences from IFCS (UFRJ Institute of Philosophy and Social Sciences), undergraduate and researcher at the National Faculty of Law.
[3] Doctoral Student in Law at the University of Ottawa.

[4] The Seminar was supported by the Inter-American Association of Public Defenders - AIDEF and the Mercosur Official Public Defenders Block - BLODEPM.
[5] The Seminar was organized in close partnership with the National Association of Public Defenders - ANADEP.
[6] The Seminar was partnered by the Association of Public Defenders of the State of Rio de Janeiro - ADPERJ and Ceará - ADPEC.