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Anyone caught walking the streets during the curfew in Campinas, in the interior of São Paulo, cannot be transferred to the police station.
Yesterday’s habeas corpus, by the judge of the 2nd Public Finance Court, Wagner Roby Gidaro, prevents the offender of the city’s administrative act from suffering “coercive driving” to a police body. The municipal decree, in force since 19, prohibits the movement of people between 20 and 5 in the morning without justified reason. The city appealed to the São Paulo Court of Justice (TJ-SP).
The curfew was instituted after the city reached 100% occupancy in ICU beds and began registering a waiting list for hospitalization. Campinas and cities in the region have adopted barriers to restrict the circulation of vehicles.
The decree published on the 17th, establishes that the resident caught on the street must prove the need for displacement, under pain of being referred to the police authority for the elaboration of a detailed term for non-compliance with the curfew. The measure provides that the approaches will have the support of the Municipal Civil Guard and the Military Police.
The habeas corpus was given in a lawsuit filed by the Public Defender’s Office. According to the magistrate, coercive driving cannot be imposed on someone who does not have the justifications required by the administrative act in relation to the curfew.
“The provision in the infra-constitutional legislation of the state of calamity, in turn, does not allow restricting fundamental precepts of the Federal Constitution. Police power, which is based on the supremacy of the public interest and in this can result in sacrifices of rights, but this power is not unlimited, “said the judge.
It establishes that failure to comply with this determination characterizes “impropriety due to the violation of the principles of legality, purpose, legal certainty and administrative morality.” The decision was made on the day the city reached 2,255 deaths and 79,000 covid-19 cases.
The City Council has already been summoned and informed that it will exercise its right of appeal before the TJ-SP, “because it understands that the municipal decree is supported by recent understandings of the Federal Supreme Court on the subject.”
Also according to the municipality of the interior of São Paulo, the referral of the offender of a sanitary measure to the police authority is foreseen in article 268 of the Penal Code. However, the decision will be enforced until the appeal is heard.
Habeas corpus does not cover other penalties provided for by the decree, such as a fine of at least R $ 3,000 to anyone causing agglomerations. The curfew remains in effect until the next day 4, but can be extended.
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