Judiciary subverts the concept of crime

In April 2023, the Superior Court of Justice (STJ) returned to drug trafficker André do Rap his 2016 Porsche, his four jetskis, his R$ 7.2 million helicopter, among other luxury goods that had been seized in police operations in the past; in May, the same STJ acquitted a drug dealer who confessed to having 257 pins of cocaine, because the confession would have taken place under “police stress”; in June 2023, the Federal Supreme Court (STF) cleared two drug dealers who were carrying 695 kg of cocaine found by the Federal Police (PF), because the search and seizure that led to their arrest occurred without a court order; Also in June, Minister Sebastião Reis Júnior, of the STJ, released Leonardo Lima, known as “Batatinha”, one of the leaders of the PCC.

While all this was happening in the Brazilian courts, Iraci Nagoshi, 70, was without her medication for diabetes, was losing weight, had anxiety attacks and showed signs of depression in the seven months she was imprisoned for going to the January 8 demonstrations. in Brasilia. She did not participate in the acts of vandalism. Iraci was released by Minister Alexandre de Moraes, of the STF, on August 7, but she continues to be forced to wear an electronic anklet and comply with other precautionary measures.

Like Iraci, dozens of Brazilians who did not even participate in the 8/1 acts of depredation have been victims of flagrant violations of human rights in recent months. Several elderly people, people with serious illnesses, an autistic person and mothers of children under 12 years of age were placed in jail without complying with due legal process, without individualizing conduct and violating the prerogatives of defense lawyers.

The Brazilian judicial system lives, according to jurists consulted by the People’s Gazettea subversion of the concept of crime, in which criminals who pose a clear risk to society – such as leaders of criminal organizations, drug dealers and murderers – are set free, while people with no criminal record and objectively innocent are framed for crimes that do not exist and treated as threats to society.

“I have no doubt in saying that this is one of the haziest chapters in Brazilian legal history. On the one hand, we see the strengthening of the guaranteeist ideology, precisely what results in decisions that favor habitual criminals, especially drug dealers; on the other hand, there is a rigor inexplicable with behaviors that have a much greater characteristic of protest than of any effectively criminal act”, says jurist Fabricio Rebelo, coordinator of the Center for Research in Law and Security (Cepedes).

The subversion of the concept of crime is not carried out without some institutional resistance. Recently, the Attorney General of Justice (PGJ) of São Paulo, Mario Sarrubbo, appealed against the decision of the STJ that freed drug dealer “Batatinha”, from the PCC. In the appeal, Sarrubbo recalls the obvious: that the drug dealer “is an individual from the high hierarchy of a criminal faction, his dangerousness being evident” and that the history of similar cases “shows that escape is the preferential choice of criminals of this breed”.

This type of reaction, however, has been an exception in Brazil. Decisions favoring drug trafficking are increasing, and have raised fears of the birth of a drug state in the country.

On the other hand, violations of human rights and the Brazilian legal system in the case of January 8th and in other situations involving the defense of right-wingers tend to be ignored by the main entity that could protect the prerogatives of lawyers: the Order of Lawyers of Brazil (OAB).

For attorney Miguel Vidigal, a specialist in Civil Law, the perplexity of the population in the face of this situation is natural. “Brazil is going through a complicated social and legal moment. The common citizen, regardless of political preference, does not understand this way of acting on the part of the national Judiciary”, he observes.

Guarantee for drug dealers and intransigence for demonstrators exposes the judiciary’s double standard

In Brazil, in recent decades, the theory of criminal guaranteeism, by the Italian jurist Luigi Ferrajoli, has become popular in the legal field, according to which it is necessary to give special priority to the guarantees of the accused in criminal proceedings.

The theory has been generously applied by the Brazilian judiciary in the case of drug traffickers, but tends to be overlooked when the accused are right-wing protesters, targets of STF inquiries or members of the police.

For Rebelo, the main reason for this double standard is the growing involvement of the Judiciary in political issues. “The only explanation that is evident is the politicization of Justice, as if there were a prior understanding that a certain political spectrum represents a threat to democracy and, therefore, needs to be repressed, for which it would be worth criminalizing all its mobilization”, he says. .

What draws attention, in the Judiciary’s justifications, is the argumentative effort to justify the release of traffickers and, on the other hand, to seek pretexts for the criminalization of elderly women and people with little or no physical capacity to commit violent acts.

In the case of “Batatinha”, by the PCC, for example, the STJ understood that the drug dealer had been pursued by the police because he showed nervousness, which, according to the court, is a subjective element that cannot justify a police approach – in In short, the police would have been prejudiced in distrusting Batatinha, because they used an intuitive element to go after him; therefore, his arrest was not worth it.

In the case of elderly women like Iraci Nagoshi, or the collector of recyclable materials Jean de Brito Silva – who has moderate intellectual disability and autism, and is criminally incompetent –, their mere presence at a demonstration was enough to accuse them of serious crimes such as armed criminal association and coup d’état.

For Miguel Vidigal, this elastic interpretation and at the taste of the judge can be explained by the phenomenon of neoconstitutionalism, which makes the law a mere backdrop and gives the magistrate a leading role in decisions. “Judicial activism has meant that the law is no longer imposing and only represents a horizon that the judge does not feel obliged to follow”, he says. “The law becomes discredited, the norm ceases to be important, and the role of the original legislator is a mere accessory for an unelected Judiciary, but with an excessive protagonism”, he adds.