The world needs to know that Brazil today has more than 1,000 political prisoners who face much harsher sentences than those of rapists, drug traffickers and murderers. Peacefully protesting against a far-left government is now a serious crime in the country, with sentences of up to 17 years or more.[1]
These politically motivated arrests are unconstitutional. Brazilians have a constitutional right to protest politically. Under Article 5, IV of the Brazilian Constitution, the free manifestation of political thought and communication is a constitutional right of the citizen. Article 5 goes on to say that international human rights treaties which are approved by the National Congress (federal parliament) are the equivalent to constitutional law. Accordingly, political speech is protected by Article 13 of the American Convention on Human Rights, which has been turned into federal legislation via Federal Decree No. 678 of 1992.[2]
These constitutional rights now are a legal fiction in Brazil. Nobody in that country has been allowed to question the supremacy of an unelected judicial oligarchy as well as the transparency of the electronic electoral system. Whoever dares to do so “must be treated like criminals”, admonishes Alexandre Moraes, a highly controversial judge of the Brazilian Supreme Court.[3] “Many people still need to be arrested and a lot of fines to be issued”, he says.[4]
At this moment around 1,000 innocent people have been arbitrarily arrested. As noted by The New York Times, “Justice Moraes has acted unilaterally, emboldened by new powers the court granted itself in 2019 that allow it to, in effect, act as an investigator, prosecutor and judge all at once”.[5]
There is now the confirmed death of one of these political prisoners. Clérison Pereira da Cunha, a businessman, husband, and a father of two who lived in Brasília was arrested on January 8 when he took refuge in a federal building to protect himself from tear gas and rubber bullet fire used by the police.
Defense lawyers for this political prisoner announced that he had a massive heart attack. As per the first reports, there was an unjustifiable delay in transferring him to a hospital.[6] In their petitions asking for release, defence lawyers warned about his health condition, pointing out the “unhealthy and degrading situation” of the prison system where he was confined.[7]
A journalist from Brazilian newspaper Gazeta do Povo has spoken with Dr Eliana Calmon, an accomplished lawyer and retired federal judge. She was the first woman in Brazil to be a member of the Superior Court of Justice, a position she held from 1999 to 2013.
According to Justice Calmon, there are numerous problems related to the various procedural conducts of the Supreme Court.[8] First, she says, the Court is certainly not the natural jurisdiction to judge these matters. Instead, defendants of the January 8 “anti-democratic” acts should have been tried at the Federal Court, since the “crimes” of which they are accused have occurred in a federal area.
Second, she adds, there was no individualisation of the conduct. The images from security cameras reveal that while some protesters vandalised public property, still others sought to actually protect them.[9]
As exhaustively reported, the accused who died in prison didn’t participate in any violent act. He just entered the public building in order to protect himself from the gas bombs that were thrown by the police who repressed those political manifestations.[10]
This goes without saying that, under the Constitution, people should answer for the supposed criminal conduct individually. Yet, Justice Moraes of the Supreme Court conducted these political trials for “lots” of 100 or 200 people at a time.[11] He used the concept of “multitudinous crimes” in all crimes related to January 8, disregarding the fact that there were different behaviours among the people present.
Third, Justice Calmon reminds us that the federal Criminal Code says that the pre-trial imprisonment of political prisoners should be reassessed after 90 days of detention. This is something that simply has not occurred.
Although the lawyer of the deceased political prisoner filed eight requests presenting evidence of the accused’s delicate health condition, there was no appreciation but rather a complete disregard of these requests for the accused to be released on such important health grounds.[12]
Fourth, Justice Calmon explains that on September 1, the Attorney-General’s Office (‘PGR’) granted a favorable opinion on the release of the accused. Federal attorneys explained that his release was due to his poor health and expiration of the investigation period. Federal attorney Frederico dos Santos manifested his opinion that the accused did not pose any risk to public the order or to the possibility of undue interference in the collection of evidence.
These requests were disregarde by the rapporteur of the case, Justice Alexandre Moraes, although the accused had already been placed on the list of prisoners to be released by the Secretariat of Penitentiary Administration of the Federal District (‘Seape’).[13] “We are facing here a clear case of abuse of authority, which resulted in death. There was a criminal act [by Justice Moraes], albeit a culpable one”, says lawyer Cláudio Caivano.[14]
Dr Ives Gandra da Silva Martins is a renowned Brazilian lawyer, professor and writer. Professor emeritus of law at the Mackenzie University and a member of the Brazilian Academy of Philosophy, Dr Gandra is widely regarded as one the nation’s most prominent members of the legal community in Brazil. On a 23 November video, Dr Gandra comments:
“The Department of Public Prosecution has asked since September for the release of the political prisoner. And yet, he continued to be imprisoned and eventually died being a man without any criminal record, for allegedly participating at a political demonstration that evidently was not a coup d’état”.[15]
This accomplished lawyer also stated:
“I have never seen a coup d’état without weapons. I ask my viewers when in the world’s history there has ever been a coup without weapons. Brazil has an Army with 220,000 soldiers, the Navy 550,000, and the Air Force 55,000. The military police has 600,000. And yet, the group that was politically protesting had no weapons. So, I ask you: Is it even possible to overthrow a government without weapons?
“It is clear to me that that was no attempted coup. This was a just a group that went there to make a political protest. However, people with no criminal record have been arrested and sentences of 17 years against them are applied. One of them was a married person with two children who was kept imprisoned even after the Attorney General’s Office explicitly requested the Court for his release. And, of course, he now dies in jail as a result of heart attack.
Dr Gandra then concludes:
“What we are seeing today is a problem that saddens me a lot as a lawyer for more than 65 years. The lawyer’s right to exercise his profession has been curtailed. Today we are witnessing the weakening of the legal profession and there is not enough courage of the bodies created to represent lawyers to defend exhaustively the right of a lawyer to exercise his profession and to be able to argue orally, and judges to be obliged to hear the very one who is acting in defense of the citizen”.[16]
To put the situation in proper perspective, it is important to explain what happened on January 9. On that day, around 1,200 people were detained as part of the dismantling of a political protesters’ camp in Brasília.[17] Many of these arrested individuals were elderly and children.[18] When they were all sent to the high-security prison, these prisoners went through a triage process in which, for “security reasons”, no pillows and blankets were provided.
These prisoners, including the one who died of a heart attack, were forced to receive mRNA vaccines in clear violation of the Nuremberg Code.[19] On that very day, the Human Rights Minister, Silvio Almeida, released an official communication to inform that these political prisoners are “terrorists” who deserve no human-rights protection.[20]
As noted by the editorial of Revista Oeste,
“There has been no investigation at all. There is only an illegal process operating in secret, which refuses to disclose evidence and obstruct defence lawyers – and, most of all, it hides from the general public anything that the Lula government wants to keep undisclosed. As it happened in Soviet court cases, those whom top judges and the government want to convict will be convicted – even if the law does not support it, and if these prisoners were not physically present at the place in which the alleged crimes were committed”.[21]
Curiously, no individual judge, apart from top judges of the Supreme Court, is allowed to consider the rights of these political prisoners. On January 11, the then Chief Justice, Rosa Weber, stated that no judge apart from these top judges is allowed to “soften the punishment” of political prisoners.[22]
In this sense, the National Council of Justice (‘CNJ’) is carrying a crackdown on the Brazilian Judiciary.[23] This judicial watchdog is working in conjunction with the Supreme Court to prevent judges from ever upholding the law to protect those who were arrested.[24] CNJ is presently analysing court rulings to make sure that any judge who dares to do or say anything in favour of prisoners are severely punished.[25]
This is taking place at a time where there is growing evidence that the January 8th riots in Brasilia were staged. As noted by J. R. Guzzo, an award-winning Brazilian journalist, “the recorded footage shows an army general, and supreme head of the government’s security services, passively staying among the invaders, while his subordinates offered them courtesies and bottles of water”.[26]
Raul Jungmann was Brazil’s defence minister from 2016 to 2018. Jungmann is a former member of the Brazilian Communist Party (‘PCB’) and leader of the Popular Socialist Party (‘PPS’). According to him, it is impossible to storm those heavily secured government buildings without a security breach. Indeed, he went to so far as to say that, “without the collaboration of internal security, nobody would have crossed the main door”.[27]
We are witnessing in Brazil the complete destruction of the rule of law. Rather than developing a concern for the arbitrary behaviour of top federal judges, President Lula da Silva has the main culprit by bestowing him the nation’s most significant medal of honour.[28] On 21 November, President Lula awarded Justice Alexandre Moraes with the Rio Branco Medal of Merit, an honor given only for those who have accomplished “meritorious services and civic virtues”.[29] Arguably, Justice Moraes may be devoid of “civic virtue” but who can possibly deny his important “services” for a deeply unpopular government?
Augusto Zimmermann is Professor and Head of Law at Sheridan Institute of Higher Education. He is also a former Associate Law Dean (Research) at Murdoch University, a former Commissioner with the Law Reform Commission of Western Australia. Born in Brazil, Professor Zimmermann is the author of several books on Brazilian Constitutional Law, including ‘Direito Constitucional Brasileiro – Tomos I & II’ (Brazilian Constitutional Law – Tomes I & II) (Rio de Janeiro/Brazil, 2014) 990 pages.
[1] ‘Professor Dr. Ives Gandra da Silva Martins e o STF’, YouTube, 23 October 2023, at https://www.youtube.com/watch?v=L3HCrnut2MY
[2] See Augusto Zimmermann & Fabio Condeixa, Direito Constitucional Brasileiro – Tomo I (Lumen Juris, 2015), pp 338-339.
[3] ‘Electoral high court president says those who doubt election results in Brazil will be treated as criminals’, The Rio Times, 5 November 2022, at https://www.riotimesonline.com/brazil-news/brazil/electoral-high-court-president-says-those-who-doubt-election-results-in-brazil-will-be-treated-as-criminals/
[4] ‘Alexandre de Moraes diz que ainda “tem muito gente para prender”’, CNN Brasil, 14 December 2022, at https://www.cnnbrasil.com.br/nacional/alexandre-de-moraes-diz-que-ainda-tem-muita-gente-para-prender/
[5] Jack Nicas and André Spigariol, ‘To Defend Democracy, Is Brazil’s Top Court Going Too Far?’, The New York Times, September 26, 2022, at https://www.nytimes.com/2022/09/26/world/americas/bolsonaro-brazil-supreme-court.html
[6] Paulo Briguet, ‘Morre o primeiro preso político da ditadura Brasileira’, Brasil Sem Medo, 20 November 2023, at https://brasilsemmedo.com/morre-o-primeiro-preso-politico-da-ditadura-democratica-brasileira/
[7] Kossy Derrick, ‘Brazilian political prisoner, Cleriston Pereira da Cunha, confirmed dead after battle with sudden Illness in Papuda prison’, Kossy Derrick Blog, 20 November 2023, at https://www.kossyderrickent.com/2023/11/brazilian-political-prisoner-cleriston.html
[8] Marlice Pinto Vilela, ‘5 Abusos do STF no caso do empresário morto em prisão preventiva pelo 8/1’, Gazeta do Povo, 21 November 2023, at https://www.gazetadopovo.com.br/vida-e-cidadania/5-abusos-stf-no-empresario-morto-prisao-preventiva-8-1/
[9] Marlice Pinto Vilela, ‘5 Abusos do STF no caso do empresário morto em prisão preventiva pelo 8/1’, Gazeta do Povo, 21 November 2023, at https://www.gazetadopovo.com.br/vida-e-cidadania/5-abusos-stf-no-empresario-morto-prisao-preventiva-8-1/
[10] Kossy Derrick, ‘Brazilian political prisoner, Cleriston Pereira da Cunha, confirmed dead after battle with sudden Illness in Papuda prison’, Kossy Derrick Blog, 20 November 2023, at https://www.kossyderrickent.com/2023/11/brazilian-political-prisoner-cleriston.html
[11] J.R. Guzzo, ‘A casa caiu: foi o próprio governo Lula que armou a baderna do 8 de janeiro’, Revista Oeste, 20 April 2023, https://www.gazetadopovo.com.br/vozes/jr-guzzo/proprio-governo-lula-armou-baderna-8-de-janeiro-goncalves-dias/
[12] Marlice Pinto Vilela, ‘5 Abusos do STF no caso do empresário morto em prisão preventiva pelo 8/1’, Gazeta do Povo, 21 November 2023, at https://www.gazetadopovo.com.br/vida-e-cidadania/5-abusos-stf-no-empresario-morto-prisao-preventiva-8-1/
[13] Jonatas Martins and Jade Abreu, ‘PGR pediu liberdade provisória de “patriota” que morreu na Papuda’, Metropoles, 20 November 2023
[14] Paulo Briguet, ‘Morre o primeiro preso político da ditadura Brasileira’, Brasil Sem Medo, 20 November 2023, at https://brasilsemmedo.com/morre-o-primeiro-preso-politico-da-ditadura-democratica-brasileira/
[15] ‘Professor Dr. Ives Gandra da Silva Martins e o STF’, YouTube, 23 October 2023, at https://www.youtube.com/watch?v=L3HCrnut2MY
[16] ‘Professor Dr. Ives Gandra da Silva Martins e o STF’, YouTube, 23 October 2023, at https://www.youtube.com/watch?v=L3HCrnut2MY
[17] ‘Ministro dos Direitos Humanos diz que “manifestantes golpistas” não merecem direitos humanos’, Investor Brazil, 11 January 2023, at https://investorbr.com/ministro-dos-direitos-humanos-diz-que-manifestantes-golpistas-nao-merecem-direitos-humanos-mas-se-preocupa-com-todos-outros-presidiarios-do-pais/
[18] ‘Manifestantes presos são vacinados contra a covid-19’, Terra Brasil Noticias, 12 January 2022, at https://terrabrasilnoticias.com/2023/01/manifestantes-presos-sao-vacinados-contra-a-covid-19/
[19] ‘Manifestantes presos são vacinados contra a covid-19’, Revista Oeste, 12 January 2022, at https://revistaoeste.com/brasil/manifestantes-presos-sao-vacinados-contra-a-covid-19/
[20] ‘Ministro dos Direitos Humanos diz que “manifestantes golpistas” não merecem direitos humanos’, 7 Minutos, 11 January 2023, at https://7minutos.com.br/noticias/politica/ultimasdepolitica/ministro-dos-direitos-humanos-diz-que-manifestantes-golpistas/
[21] ‘Governo Lula mostra que tem crimes a esconder sobre o 8 de janeiro’, Revista Oeste, 19 April 2023, https://revistaoeste.com/politica/governo-lula-mostra-que-tem-crimes-a-esconder-sobre-o-8-de-janeiro/
[22] Daniel Cesar, ‘Rosa Weber vê judiciário contaminado e quer punir juizes golpistas’, IG – Ultimo Segundo, 11 January 2023, at https://ultimosegundo.ig.com.br/colunas/daniel-cesar/2023-01-11/rosa-weber-judiciario-golpistas.html
[23] Daniel Cesar, ‘Rosa Weber vê judiciário contaminado e quer punir juizes golpistas’, IG – Ultimo Segundo, 11 January 2023, at https://ultimosegundo.ig.com.br/colunas/daniel-cesar/2023-01-11/rosa-weber-judiciario-golpistas.html
[24] Daniel Cesar, ‘Rosa Weber vê judiciário contaminado e quer punir juizes golpistas’, IG – Ultimo Segundo, 11 January 2023, at https://ultimosegundo.ig.com.br/colunas/daniel-cesar/2023-01-11/rosa-weber-judiciario-golpistas.html
[25] Daniel Cesar, ‘Rosa Weber vê judiciário contaminado e quer punir juizes golpistas’, IG – Ultimo Segundo, 11 January 2023, at https://ultimosegundo.ig.com.br/colunas/daniel-cesar/2023-01-11/rosa-weber-judiciario-golpistas.html
[26] J.R. Guzzo, ‘A casa caiu: foi o próprio governo Lula que armou a baderna do 8 de janeiro’, Revista Oeste, 20 April 2023, https://www.gazetadopovo.com.br/vozes/jr-guzzo/proprio-governo-lula-armou-baderna-8-de-janeiro-goncalves-dias/
[27] ‘Ex-ministro da Defesa disse ser impossível uma invasão aos palácios do Planalto, Alvorada e Jaburu’, YouTube, at https://www.youtube.com/watch?v=vXd0KyoBcNs
[28] Cristyan Costa, ‘Lula homenageia Moraes no dia do velório de Clezão’, Revista Oeste, 21 November 2023, at https://revistaoeste.com/politica/lula-homenageia-moraes-no-dia-do-velorio-de-clezao/
[29] Cristyan Costa, ‘Lula homenageia Moraes no dia do velório de Clezão’, Revista Oeste, 21 November 2023, at https://revistaoeste.com/politica/lula-homenageia-moraes-no-dia-do-velorio-de-clezao/
