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Legality or Illegality of Taking Homeless People to Shelters?


This contentious issue was addressed and debated by our lawyers, Nelson Alexander Schepis Montini and Annie Ponce, who participated in a journalistic piece with Diário do Grande ABC.



To elaborate more comprehensively:





IN FAVOR OF TAKING ACTION

It is the duty of the Public Authority, of the State, to guarantee the fundamental rights of the population. The rights outlined in the Federal Constitution state in Article 1 that it is the responsibility of the higher powers of the States and Municipalities to uphold human dignity, as well as to promote the greater good of all, regardless of prejudices.

When faced with factors such as public calamities or force majeure, the State must act to preserve individual foundational principles, that is, to ensure the inviolability of life, meaning the State is responsible for protecting the life and dignity of the human person.


In cases of extremely low temperatures, the life of a street dweller could be lost due to hypothermia. Given the State's duty to protect life, it must safeguard the lives of street dwellers, even against their will. For this reason, the State's action of compulsorily taking street dwellers to shelters is an effort to temporarily protect them from intense cold, thus ensuring the individual's life. However, the State must approach this in a gentle and peaceful manner, ensuring it does not harm human dignity and allowing their pets to accompany them, as this action aims to continue respecting the individuality of the residents.


Additionally, the temporality of the measure must be respected, meaning the State cannot infringe upon individual freedom for extended periods. The duration must be short and clear in its motivations, with the aim of not violating other Constitutional precepts and the LOAS (Organic Law of Social Assistance).


Shelters must also be equipped to protect not only street citizens from the cold but also from the pandemic factor of COVID-19 so that such protection against the cold does not harm their health.


With these rights and guarantees preserved, the State, in its action to protect the greater good, life, is justified.


Dr. Nelson Alexander Schepis Montini





AGAINST TAKING ACTION

First and foremost, it is essential to highlight the right of street dwellers to move freely, as can be seen in full through Resolution number 40, dated October 13, 2020.

Street dwellers have the right to stay in public spaces where they are accustomed to living, being free to move about, without infringing upon the right to come and go and, especially, to remain.


Article 23 of the aforementioned law states:


The State must guarantee people in street situations the right to the city, comprised among others by the right to:


I – COME AND GO;

II – REMAIN IN PUBLIC SPACES;

III – ACCESS PUBLIC FACILITIES AND SERVICES


Sole paragraph: The removal of people in public spaces simply because they are in a street situation is prohibited.


In the case at hand, the best solution for those residents who refuse to go to shelters due to the impending low temperatures is to invest even more in winter campaigns, ensuring they are supported with necessary supplies, warm clothes, and coats to face the harsh winter in the coming days.


The Federal Constitution guarantees in its fundamental rights that no one shall be compelled to do or refrain from doing anything except under the law or by judicial order, as well as guaranteeing individual freedom. The act of coercively taking a street dweller infringes upon these legal provisions.


Dr. Annie Santos Ponce Montini

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