A collective warrant is necessary
Article in O Globo, of 23/02/2018, on the inviolability of the home and the need for a warrant in searches and seizures.
Translated from the original.
Does anyone doubt that the home is an inviolable place, under article 5, chapter 11, of the Federal Constitution? The exceptions are the cases provided for of prior court order, flagrante delicto or disaster, and to provide assistance.
Let us then address the prior court order, which refers to the search and seizure warrant, governed by article 243 of the Code of Criminal Procedure. That provision establishes that one must indicate “as precisely as possible the house where the measure will be carried out and the name of its owner or resident.”
Search warrants serve to enter homes in search of weapons or even in pursuit of fugitive criminals, not to mention the search for proceeds of crime. What does that mean, as precisely as possible, when we are dealing with entire territories dominated by organized crime? The right of property over the properties located in these territories becomes quite fragile. And the purpose to which a search warrant is directed would be emptied of meaning if there were a restrictive view of this rule — which would weaken the rights of the very occupants of these properties, who would be exposed to the action of those who dominate that territory.
In areas occupied by organized crime, as in Rio’s favelas, where the residents themselves live under the rule of fear and under the control of criminals, the same parameters cannot be established as for a search warrant intended for an area under State control.
I analyze this picture from the perspective of the rights of the owners or possessors of the properties themselves. The central characteristic of organized crime in Rio is territoriality occupied to the detriment of the State. The territorial authority in these communities is not the State, but rather the holder of parallel power. That is to say, these members of criminal organizations guarantee the residents’ rights, including the right of property. They are the ones who hold the monopoly of violence, not the State. It is precisely in the characterization of a serious public disorder that federal intervention in the State of Rio de Janeiro is justified, as guaranteed in the presidential decree.
By this line of reasoning, collective search warrants would be a guarantee that criminals could not break into other people's homes to seek shelter from legitimate actions by the public authorities.
Contrary to what many jurists claim, collective warrants safeguard the rights of the residents of these communities themselves, insofar as they allow the Armed Forces access to their homes, and thus prevent their properties from being occupied by criminal organizations.
Striking is the discourse, embraced even by respected jurists, that presumes that police authorities and the Armed Forces are the “bad guys” in this confrontation that will take place in areas occupied in Rio for many years by organized crime.
One may discuss whether the intervention was or was not timely, whether it was or was not well planned, whether it will or will not work, whether it did or did not have political aims. However, for it to produce minimally satisfactory results, the Armed Forces need to have adequate means. The deterioration of public spaces in the favelas occurred through State abandonment, through endemic inefficiency, through corruption.
There were structural failures in the management of public security, and regrettably this is not a reality only of Rio de Janeiro. However, in that state, the character of territorial occupation by organized crime is peculiar. The (re)occupation of the territory by the State does require collective search warrants, confined to certain areas, with specifications that ensure the integrity of the operations, their objectives, their purposes, and the reasons on which they are based.
Fábio Medina Osório is a jurist and was a minister of the Office of the Attorney General of the Union