Maina Kiai, UN Special Rapporteur on the Freedom of Peaceful Assembly and of Association
Catalina Botero, Inter-American Commission on Human Rights’ Special
Rapporteur for Freedom of Expression
Frank La Rue, UN Special Rapporteur on Freedom of Expression
São Paulo, 22 April 2013
Dear Mr. Kiai,
Dear Ms. Catalina Botero,
Dear Mr. La Rue,
On behalf of Article 19, an international freedom of expression organization, we would like to bring to your attention the case of Ricardo Fraga de Oliveira. The case concerns restrictions on rights to freedom of expression and freedom of assembly in the context of peaceful protest in Brazil.
In July 2011, Ricardo Fraga de Oliveira started an initiative O Outro Lado do Muro – Intervenção Coletiva (The Other Side of the Wall – A Collective Intervention) to question the construction of a real estate development in Vila Mariana, a district of São Paulo. The initiative consisted of public mobilization, including on a dedicated Facebook page, and peaceful protests on public pavement near the construction site. Mr. Fraga invited supporters to climb on a ladder, observe the new building works through a fence and express their feelings on a whiteboard about the visual impact of the project. None of this has caused any disruption to the construction or surrounding traffic. The initiative has received a widespread support from many inhabitants of the district, civil society organizations and public figures. Its petition – requesting the re-analysis of the administrative process that granted construction licenses to the real estate development due to possible irregularities in the project – gathered 5,000 signatures.
In response, Mofarrej Vila Mariana SPE Empreendimentos Imobiliários S/A, the real estate company in charge of the construction, filed an lawsuit against Fraga seeking to prohibit him from both personally protesting and from organizing any further protests in relation to the construction.
On 6 March 2013, the 34th Civil Court of São Paulo issued a preliminary decision prohibiting Mr. Fraga from both participating in the protests or in any other activities near the construction site and from posting anything about this subject on the Facebook page. The violation of this order can result in the penalty of ten thousand Reais (approximately $5,000) for each infraction.
ARTICLE 19 has supported Mr. Fraga’s case: we have filed amicus brief in the interlocutory appeal against the judge’s decision. We have also organized a joint statement in his support, signed by 19 civil society organizations and important public figures.
As the interlocutory appeal in Mr. Fraga’s case will be reviewed by the Court of Appeals of São Paulo in the upcoming week, we respectfully call on your offices to intervene in this case and declare injunctions against Mr. Fraga violations of his right to freedom of expression and freedom of assembly. We especially ask you to consider the following:
- The action of Mr. Fraga involved the exercise of his right to freedom of expression and freedom of assembly. ARTICLE 19 points out that the right to freedom of expression protects not only the substance of ideas and information, but also their form. In conjunction with the right to peaceful assembly, this also means a protection of freedom of expression for public protests or demonstrations. It also covers dissemination of ideas and information through the social media (such as Facebook).
- Under the international standards, the right to freedom of expression and freedom of assembly, any restrictions must meet the requirements of the three-part test. In particular, they must be provided for by law, pursue a legitimate aim and be necessary and proportionate the aim pursued. The 34th Civil Court of São Paulo failed to take these requirements into consideration. The judgment contains no explanation on what aims are the injunctions against Fraga pursuing and their need. In any case, we consider the blank ban on the protest, prohibition to post his dissent on the Facebook page and severe sanctions in case of violation of the injunction grossly disproportionate to any possible aim pursued.
We would like to highlight that the case of Mr. Fraga is the first of its kind in Brazil. The decision of the Court of Appeals of São Paulo will be an important precedent in the country and might serve as a reference for future cases of this kind for the Brazilian judiciary.
We hope that your mandates will take action in this case. Do not hesitate to contact us in case you need further information.
ARTICLE 19 Brazil