In a court room more crowded than usual in the last week of sessions, the 15 judges who make up the Higher Military Tribunal today gave judgement in the Evaldo Rosa case. The court decided to follow the prosecutor and, by 8 votes acquitted the soldiers of the death of the musician, whose car was struck by 62 bullets in Rio de Janeiro, on 7 April 2019. The soldiers’ sentences were upheld only for the killing of the recycling collector Luciano Macedo, who tried to help Evaldo and was himself shot in the same incident.
The men will have to serve their sentences in an open prison, for terms of between three years and two months and three years and ten months. Eight men were accused, a lieutenant, a sergeant, a corporal and four soldiers. Only the lieutenant, Ítalo da Silva Nunes, was given a slightly longer sentence.
The sentence was one tenth of that called for at the first trial in 2021. On that occasion they were given 28 to 31 years in a high security prison. There were only three votes against this verdict. The STM is made up by ten military judges from the three branches of the Armed Forces, and five civilians.
Why does this matter?
According to the minister Elizabeth Rocha, this case should be understood as an example of structural racism and racial profiling, although this reasoning was not followed up by her colleagues.
Appeals to the STM are judged by a court made up by a majority of members of the armed forces.
Only five of the 15 judges are civilians – a matter that has been questioned internationally.
Evaldo Rosa had been driving his family along a street next to the Muquiço favela in the Guadalupe neighbourhood when the car was hit by rifle shots from the Brazilian army. The soldiers fired 82 times, with 62 of the bullets striking Evaldo’s car and killing him immediately. Luciano Macedo, a recycling collector, who tried to help the musician, was also shot by the Army and died 11 days later.
Evaldo’s wife, Luciana Nogueira, leapt out of the car and ran with their 7-year-old son David Bruno, to escape the bullets. Just before she had been trying to calm her husband, saying ‘Calm down, my love, it’s just the barracks.’ She couldn’t believe that the soldiers would shoot down a family in that way. Their son, now 12-years-old, still dreams of joining the Navy.
Both of them attended the hearing on Thursday 18 December, in Brasilia.
‘I want to look them in the eyes,’ said Luciana, when asked why she insisted on attending the sentencing. Sitting beside her son, David Bruno, she became emotional at various points during the reading of the verdicts, and stared hard at some of the judges, furious when they mentioned ‘drug-traffickers’. She had had ‘some small hope’, she told Agência Pûblica, that she would see a just sentence handed down.
‘It’s sad, it’s shameful,’ she said, after the verdict. ‘This is all about impunity.’
For Luciana, today’s events just confirm what she always thought: that it would be difficult to obtain any just verdict while the military are ‘judged by themselves’. ‘I wasn’t surprised in the slightest’, she said, ‘because in the Brazil of today there is no justice, especially for the poor and for black people.’
‘The whole lot of them are just a sham – they voted the way they did to protect the image of the Brazilian Army.’
For Judge Rocha, the Evaldo Rosa case is an example of racial profiling: ‘an execution’
However, if today marked a victory for the defence, the trial did cause significant disquiet. Civil society organisations attended the hearing, in support of Evaldo’s family, among them Conectas Human Rights and Global Justice.
Judgement was re-opened on the vote of the judge, Elizabeth Rocha, the only female member of the court.
Before declaring her verdict, the judge spoke with Luciana and kissed her child David on the cheek. Although others, including one of the military judges, shook hands with the family, Rocha, who will become president of the STM, was the only one to say ‘I’m so sorry. I really am sorry.’
Rocha also was the only one to mention in her opinion ‘The great human courage of Luciano deserves this verdict – it deserves to be recognised, applauded and grieved for.’
Quoting thinkers such as Jessé de Souza and even the rapper Emicida, Rocha spent much of her time speaking about the way the case reflects the structural racism and racial profiling to which the poor of Rio de Janeiro are subjected by the security forces.
In an opinion which began with the technical details of the case, the judge argued that the soldiers should be given sentences ranging from 23 years 4 months to 31 years 7 months.
As she read out her opinion, which took more than three hours, she became emotional at various points. Luciana, the widow, also wept when her husband was mentioned: ‘In truth, the [other] man targeted by the soldiers was a poor man, a black man, who worked as a recycling collector and, because he went to the aid of a father struck by a bullet, he was considered to be a criminal and was killed,’ said the judge.
Judge Elizabeth Rocha poured scorn on the majority opinion which claimed that the soldiers believed they were acting in legitimate self-defence. ‘You cannot speak of a battle,’ she said, ‘when on one side you have twelve heavily armed soldiers, and on the other a single unarmed recycling collector who, even if he had had a weapon, found himself surrounded by the troops.
‘The term to use here, although some may not like it, is “execution”,’ she continued, ‘given that it was amply demonstrated that there was not the slightest resistance from the victims, who were targeted and shot in the back.’
‘To authorise shooting with automatic rifles, until the suspects are killed, because a particular location is dangerous, and because the soldiers have allegedly risked their lives already in an entirely different situation, is to place the population, especially those living in areas considered dangerous, at imminent risk and is absolutely unacceptable in a democratic state.’
Findings at odds with public opinion
Soon after Rocha’s speech, the prosecutor, Lieutenant Brigadier of the Air Force Carlos Augusto Amaral Oliveira, gave his verdict, that the first shot which hit Evaldo in the back had killed the musician instantly. He claimed that this meant that it could not be proven that the soldiers had killed him when the vehicle came to a halt, as he was already dead. The alleged crime was ‘impossible’.
His vote was supported by 8 judges, the majority of the court.
A few weeks earlier, the court had refused the application by Conectas Human Rights to take part as an ‘amicus curiae’ [a recognised mechanism for allowing an organisation to attend court to support the proceedings]. According to the court, there had been no ‘social repercussions’ of the case, so that only the individuals directly involved could take part.
That was not the opinion of the civil rights organisations concerned. Lawyer Caroline Leal Machado, for Conectas Human Rights, stated that it was ‘truly lamentable that the verdict failed to recognise that 257 shots were, by any standards, excessive’. Moreover the STM, she said, had failed to take into account the fact that this was a case of racial profiling.
According to Machado, it’s possible that the case will be taken to the Supreme Court and even to international courts, where the competence of Military Justice to try crimes against civilians will be questioned.
‘I think that’s as far as it can go,’ said Luciana, visibly discouraged.
Asked about the verdict, the President of the STM, Joseli Camelo, said that he knew that the verdict would be unpopular. ‘It is difficult for the general public to analyse the case,’ he said, ‘because each judge analyses it from a soldier’s perspective, and also examines the general context. These were young soldiers,’ he stressed.
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