illegalities in the case of Portuguese journalist

Jurists reacted with concern to the testimony given by the director of Administrative Police of the Federal Police (PF), Rodrigo de Melo Teixeira, to the Senate, this Tuesday (19). The director appeared to provide clarification on the detention of journalist Sérgio Tavares at Guarulhos airport on February 25. For the jurists heard by the People’s Gazettethe testimony reveals illegalities in the Federal Police procedures.

The Portuguese journalist had come to Brazil to cover the pro-Bolsonaro demonstration to be held that day. Upon disembarking, he was detained and interrogated by the Federal Police about his political opinions. The episode provoked reaction of a Portuguese political party, Alternativa Democrática Nacional (ADN), which made reference to a “dictatorship in Brazil”, and caused the Brazilian Senate to summon a representative of the Federal Police to provide clarifications.

In his statement, the director of the PF Administrative Police confirmed that the journalist was detained and interrogated “because of [das] his opinions.”

He clarified that the agency’s analysis sector, in Brasília, issued a warning about the Portuguese journalist after verifying demonstrations on social networks that, in the director’s own words, “border on a criminal aspect”. As examples, he alluded to posts in which the journalist allegedly attacked the honor of STF ministers, criticized electronic voting machines and made a “favorable statement” to the acts of depredation on January 8, 2023, in Brasília.

The director did not detail the cases and, when questioned by senator Carlos Portinho (PL-RJ), said he did not have reports to prove the posts. The journalist, on Wednesday (20), reacted and denied having supported the acts of January 8th. Searching your social networks, you can only find posts in which you defend the protesters as “peaceful” and call those who destroyed public buildings “infiltrators” from the left, without approving their conduct.

The PF director also cited as the reason for the interrogation the fact that the Portuguese journalist had interviewed a person who was the subject of an open arrest warrant in Brazil. This is journalist Allan dos Santos, from Free Tuesday, who was the target of a request for preventive detention formulated by the PF itself, in 2021, to Minister Alexandre de Moraes. According to the newspaper Folha de S.PauloAllan dos Santos himself had his extradition denied by the United States authorities because they understood that his arrest was ordered for a “crime of opinion”.

Jurists heard by the People’s Gazette point out at least three illegalities revealed by the PF director’s testimony to the Senate:

1) No need for a visa for journalists

In the statements made during Tavares’ interrogation, it is stated that he “responded” that he was in Brazil for tourism, from which it is inferred that the Federal Police asked if he was in the country for work. There are no visa questions.

However, in a statement released to the press, the PF stated that one of the reasons for the journalist’s detention was the supposed need for a work visa for a journalist to cover photographs of an event, such as the demonstration on February 25th.

The statement was indirectly denied by the director of the PF himself, who said in his testimony to the Senate that the Treaty of Friendship, Cooperation and Consultation between Portugal and Brazil allows journalists to stay for up to 90 days without needing a work visa. In fact, a rule from the Ministry of Foreign Affairs exempts any journalist from the European Union from presenting the document to carry out journalistic activities during this period.

2) Criminalization of questioning the ballot boxes

Cláudio Henrique Ribeiro da Silva, coordinator of the Law course and the Freedom of Expression Observatory at UFOP, states that one of the accusations made by the PF does not constitute a crime: that the journalist had “criticized” electronic voting machines, or even alleged fraud. “You can’t be forced to have faith.”

Silva recalls that the current STF minister, Flávio Dino (one of the journalist’s alleged victims), has himself criticized the reliability of electronic voting machines in the past, without punishment. Silva states that there has been no legislative change since then that would justify a possible change in understanding that the same conduct would have become criminal.

Eduardo Maurício, a criminal lawyer specializing in extradition, agrees with the assessment. He clarifies that the Federal Police has standardized protocols for admitting foreigners, which could, in theory, result in detention or even refusal of entry, depending on the case; however, he says that acts of this kind must have due justification and considers that, if they are “due to political and ideological positions”, it is an “abusive and illegal act”.

3) Lack of requirements to investigate crimes against honor

When asked by senator and former judge Sergio Moro (União-PR), the director of the PF responded that there was never any representation from a STF minister against the journalist for his demonstrations against them. The senator accused illegality, because, as he explained, in crimes against the honor of authorities, the police can only proceed through representation of the offended party (art. 145, sole paragraph, of the Penal Code).

Silva agrees with the senator’s assessment: “It is not up to the police to take the initiative to persecute[…], therefore, if the person affected does not feel offended, there is no public interest”. He explains that the law provides this, even as a matter of logic: “The public authorities cannot determine at what point someone is offending another person. Otherwise, the crime ceases to be a private action.”

Silva also remembers that, even if there was representation from one of the offended parties, this might not be enough for there to be a crime: “Those judged always understood that there was no intention for the crime if it was a demonstration against a public person”. The professor cites, as a recent example, the unanimous decision of 2021 in which the Superior Court of Justice (STJ) closed a criminal investigation into a crime against the honor of then-president Bolsonaro. The STJ cited, at the time, a ruling by Minister Alexandre de Moraes himself in favor of freedom of expression to criticize politicians in a democracy.

Silva states that the recent escalation of criminal investigations due to criticism of public figures is a new phenomenon, which goes against the law as it had been understood until then.