The bees of discord will be saved
After the release of this news https://xrwordsmiths.wordpress.com/2021/06/08/the-bees-of-discord/ , the judge in the case issued a decision obliging the parties to contact public agencies in charge of dealing with the problem. My client requested action at City Hall for the second time, but the agency in charge said that she could not do anything because the hive is in a place that is difficult to access. At the state government agency in charge of enforcing environmental legislation, my client was told that removing the hive would be a crime and that they would only act if the crime was committed. The federal environmental agency was closed because of the pandemic.
My client then got in touch with specialists from the University of São Paulo and was advised to hire a specialized company to prepare a report on the spot. She did this and the report attested that they are honeybees protected by legislation, and it is advisable to remove the location without destroying the hive or exterminating the bees. The expert stated that the company had the technology to carry out the service, pledging to take the hive and bees to the farm of a beekeeper who is a partner of the company. The price of the service would be the equivalent of 316 pounds.
I communicated all this in the court process and requested the judge to issue an urgent order authorizing the removal and relocation of the hive and the bees to a safe place. The judge made the following decision.
Considering the possibility of the parties contacting each other directly to attempt a transaction (and the transaction has not been reported so far), seeking to speed up the process in this scenario of the Covid-19 Pandemic (coronavirus) and there are no elements that indicate the need for the production of other evidence, I proceed to the judgment of the requests.
Report waived, pursuant to art. 38 of Law No. 9,099/95. I plead and decide.
Briefly, the Plaintiff maintains that she is the Respondent's neighbor; and that approximately 5 years ago a hive was formed with bee infestation in the Defendant's property, causing several discomforts and annoyances; that the Plaintiff has been suffering from bee attacks. It intends to remove the hive/infestation in addition to the Respondent's conviction to pay compensation for the moral damage suffered.
Well then. This Court sought prior verification of the location by the competent municipal body to enable an adequate solution to the problem. The Defendant, after the order on page 119, contacted the City Hall of São Paulo (an agency linked to the Center for Zoonoses Control of Bees and Wasps). In view of the location, the hive/bee could not be removed by the municipality, as it was in a place of difficult access (page 126).
Seeking alternatives to resolve the issue, the Defendant contacted the University of São Paulo, which claimed that it was not possible to help remove the hive/bees (pages 138/139). But he indicated a biologist, a specialist in the analysis and removal of bees and wasps in urban areas.
Biologist, through a company, carried out an on-site inspection and issued a report and budget for the removal of the hive/bees (pages 145 and etc). The removal is carried out with suction methodology by specific equipment and removal of hives sending them later to beekeeper partners, who will give them an environmentally appropriate destination. Communicating in advance with neighbors to close doors and windows.
It is a procedure that will solve the neighborhood issue in an environmentally sustainable way. Without the mere destruction of bees, protected by environmental legislation and important for the balance of the environment.
The Respondent was willing to hire said specialized company (pages 143/144) to remove the bees and the hive.
Analyzing the elements of the file, this seems to be the best solution, environmentally sustainable, which pacifies the neighborhood relationship and ends the Plaintiff's annoyances. The removal of bees through the company/methodology on pages 145 and etc. Or, if not possible for some other reason, by a similar company/methodology, environmentally sustainable. Or if it is not yet possible, through a public entity, Union, State and/or Municipality - or their agencies.
With this solution, the Respondent will not incur in the practice of an unlawful act/environmental crime. The Respondent will adopt a measure determined and supported by the Judiciary Branch (compliance with a court order/legal duty).
On the other hand, I don't see moral damage.
Moral damage is injury to the right personality. In this case, we do not verify damage to the personality of the Plaintiff.
The Plaintiff, it is quite true, had annoyances with the facts described in the initial petition. But these annoyances are not indemnified. They stemmed from life in society and a neighborhood relationship. It should be noted that the matter had a relatively complex solution, which involved environmental legislation.
In this line of understanding Sérgio Cavalieri Filho ponders that “mere annoyance, hurt, irritation or heightened sensitivity are outside the orbit of moral damage, because, in addition to being part of the normality of our daily lives, at work, in traffic, between friends and even in the family environment, such situations are not intense and lasting, to the point of breaking the individual's psychological balance. If this is not understood, we will end up trivializing the moral damage, giving rise to lawsuits in search of compensation for the most trivial annoyances”. (in Programa de Responsabilidade Civil, 2ª Edição, p. 78, Malheiros Editores)
On these grounds, I DEEM PARTIALLY APPROPRIATE, the requests to sentence the Defendant to comply with the obligation to do so, consisting in promoting the removal of bees from its property (through the company/methodology described on pages 145 and etc or through a company /similar methodology, environmentally sustainable; or, if this is not possible, through a public entity Union, State and/or Municipality or their agencies; at the expense of the Defendant Fixed period of up to 20 days for the start of services. In the event that the Defendant does not comply, a daily fine may be arbitrated, which would apply from a new subpoena. Solving the merits, pursuant to art. 487, I of the Code of Civil Procedure.
I anticipate the effects of jurisdictional protection in this sentence, so that the Respondent can immediately start the hiring procedures and date setting for the start of services."
The court solution found satisfies the plaintiff's claim, but will preserve the bees' well-being.
The ruling recognized the complexity of the demand and that the conflict between the parties could not be resolved solely on the basis of legal norms that govern relations between neighbors. The judge in the case admitted that the hive could not be destroyed without my client committing an environmental crime, as bees are protected by environmental legislation. He authorized the removal of the hive to a beekeeper's property through the use of sustainable techniques that preserve the lives of insects, exempting my client's conduct in doing this from any illegality.
This decision fully satisfied my client's claim. In the case of a protected species, the removal cannot be done without authorization. My client obviously could not be forced to act at the risk of being denounced for an environmental crime. Art. 301, of the Code of Civil Procedure allows the Judge to grant urgent relief of a precautionary nature upon arrest, listing of assets, registration of protest against alienation and any other suitable measure to ensure the right. It is important to note that a Brazilian judge could not refrain from deciding alleging a gap or obscurity in the legal system (art. 140, of the Code of Civil Procedure) and my client expressly committed to removing the hive provided that the Court issued a specific decision authorizing her to do that. This decision should state that her act cannot be considered an environmental crime, something that in fact occurred.
The claim for damages was consistently rejected. There was really no possibility of my client being convicted, as her conduct was not unlawful.
This solution put a satisfactory end to the original demand, but there are some irradiations of the sentence that must be considered here. I say this thinking specifically of the representation made by me to the Brazilian Supreme Court, which was summarily rejected by decision of the High Judge Luis Barroso https://docs.google.com/document/d/1FMyPAXah258racQz_UlZET1jwrUBfvMEj67rbW7iq7E/edit?usp=sharing .
In the records of that representation, the Rapporteur punished the lawyer who made the representation due to the filing of an appeal as if his claim were totally implausible. The lower Court decision proves the complexity of the demand and that the representation deserved greater attention by the Supreme Court, which could determine the avocation of the case to resolve a constitutional issue. Should the lawyer be punished for doing what is necessary to improve the application of Brazilian Environmental Law? The answer to that question will still have to be given by the Court in judging my appeal.
Even though the object of the representation has perished (it is impossible to determine the avocation of a sentenced case), there remains another side issue that deserves to be resolved by the Supreme Court when judging the appeal: the inadequate interpretation given to the Internal Rules by the Rapporteur of e-Pet 9,690 . This issue is of great importance and the Brazilian Supreme Court will not be able to avoid it, since the Internal Regulation of the Court cannot and should not be modified unilaterally by one of its members through malicious tricks and abusive interpretations.
The bees will be saved and my client will not be economically punished, but High Judge Luis Barroso still deserves to be stung by the Court in charge of judging the grievance brought in the representation.