Two recent episodes in Brazil’s football stadiums show that the decision of the Supreme Federal Court (STF) to equate racial insults with racism has yet to “take hold” in the country’s police stations.
In one of them, on April 26, a Boca Juniors fan was arrested at the New Coimica Arena on charges of offending Corinthians fans by imitating a monkey. The next morning, he was released on bail and released.
In contrast, player Rafael Ramos, of Corinthians, was accused of using the word “monkey” to offend Edinilson, of Internacional, in Saturday’s game (14), in Beira Rio. He was arrested, and also released after bail was paid.
The two deny racial crime and will respond to the final process at liberty.
And it so happened that the STF, in the ruling that ended last October, decided a case of racial harm (offending a person using items indicating race or color, for example), as well as racism (discrimination of a group or group because of race or color, for example). ), shall be considered undetectable and non-prescribable.
That is, in theory at least, the perpetrator of the crime of racial harm should not be released on bail to respond to the process freely, and his crime will not stop being punished (there is no statute of limitations).
In practice, however, these two examples show that the theory is different. Since the ruling in the Supreme Court in an individual case has no binding effect—that is, the same understanding does not have to be followed—there is room for divergent interpretations, even though the court gave a clear indication of his understanding of the matter.
“Unfortunately, these explanations are nothing more than one of the harmful aspects of racism,” says attorney Robson de Oliveira, former chair of the OAB/SP Standing Committee on Racial Equality.
“Denying the validity of what our highest court has decided is a way to downplay the behavior, downplay its harmful effects and, in a way, ensure that clients feel impunity in the face of the practice of such crimes,” he says.
It is good to say that respecting the STF’s decision does not necessarily mean keeping the Boca fan and Corinthians player in jail.
Attorney Davey Tangerino, professor of criminal law at the University of Urija (Rio de Janeiro State University), recalls that after the 1988 constitution, some reforms made preventive detention almost an exception. Alternatively, courts may apply measures such as wearing an ankle bracelet, handing over a passport, or having to report to the authorities periodically.
“In 1988, when there was little alternative to imprisonment, bail likely meant staying in prison,” says Tangarino. “Today, failure to disclose a crime on bail no longer means a high probability of arrest, because although bail is not appropriate, there are all these other procedures.”
Thus, in the two football examples, the most appropriate procedure would have been to send the suspects to a detention hearing, where the Prosecutor’s Office would issue a decision and the judge would decide whether to order preventive detention or specifying a measure other than detention.
The one thing that should not happen, in light of the STF’s decision, is bail – although it is not illegal to do so.
Or in the words of Karen Luiz Vilanova Battista de Sousa, a judge in Porto Alegre, without referring to the cases in particular: “What cannot be done is for a person to commit a very serious fact and enter through one door and leave through the police station, as if nothing had happened.”
“It seems to me that as long as the STF decision is not made into law, bail will be the norm, precisely because in our country there is so much difficulty in recognizing and properly punishing racism,” Souza says.
Last Wednesday (18), the Senate approved a bill that does exactly that and goes further, by creating specific penalties for racial slurs committed in places where the public is present, such as football stadiums. The proposal still needs to be approved by the House of Representatives before going to the impeachment of President Jair Bolsonaro (PL).
For Sousa, it would be possible to go further, as it is forbidden to sign a non-prosecution agreement for crimes of racism, as in cases of domestic violence. In these cases, the prosecutor’s office has to file a complaint.
Attorney Tiago Rocha also cites the bill in Congress as an initiative that would help curb racism, not least because the punishment for crimes of racial slander would be 2 to 5 years in prison (currently 1 to 3 years).
According to him, both the STF’s decision and the approval of the bill are logical because the crime of racial defamation includes the practice of racism enshrined in the Constitution.
“From a historical and social perspective, the STF’s decision is grounded in a list of extenuating and extenuating measures in a society marked for centuries by limiting the rights of the black population,” Rocha says.
Lawyer Linneau Strick disagrees with this view. in an article in a sheethe argued, that one cannot, by judicial interpretation, equate two different crimes: “While racism occurs in a broader context, racial harm is directed at the affected individual,” he wrote.
What do the laws say?
Article 5, Clause 42 – The practice of racism constitutes a crime that is not subject to bail and is not subject to statute of limitations, subject to imprisonment, in accordance with the provisions of the law.
Law 7716 of 1989
Defines crimes resulting from racial or color bias. The law does not deal with crimes.
art. 140- Injury to dignity and decency:
Punishment – imprisonment, from one to six months, or a fine.
§ 3The If the injury consists of using items that refer to the race, colour, ethnicity, religion, origin, or condition of an elderly or disabled person:
Punishment – imprisonment from one to three years and a fine.