August 14, 2021
From Notes From Below

This article was originally published in the Brazilian newspaper Folha de S. Paulo on August 9, 2021.

Under the so-called rule of law, imprisonment is an extreme measure and carried out, according to legal rules, especially after a broad defense of the accused. Precautionary arrests, that is, that is, those arrests that occur for specific legal hypotheses with the premature imprisonment of any citizen, are legally exceptional. However, its practice has become widespread in Brazil. And in addition, this is intensified in hypotheses involving young black people – which is enhanced in the case of social movement leaders.

Recently, the arrest decrees – temporary and preventive – involving the leader of the Anti-Fascist Deliverers movement, Paulo Roberto da Lima Silva, better known as Galo, are a lesson on the anatomy of the excessive aspects of arrests against (especially black) leaders of social movements in Brazil. It should be noted that, as a counterpoint to social activism, we are witnessing an inconvenient growth of “judicial activism” – coming from public agents who are not elected, and which promote the option of eliminating the freedom of those who intend to mobilize around agendas of social and popular interest. Despite being completely unnecessary for criminal charges against Galo, the fact that he is a leader is a concern of the authorities that authorized the arrest.

On the other hand, it is common for justice to seek the name of those involved in an action considered contrary to legality. The problem is to use the prison as if it were an instrument of torture to obtain denunciations, – it is known that the plea bargain is a means with criminal benefits; in this case, there is news of the arrest as a necessary condition for obtaining it. This goes back to the sad memory of the dictatorial period in Brazil. The possible use of such mechanisms in any decision involving the fact wouldbe inadmissible. It is not possible to preserve the criminal investigation from the obligation of denunciation.

Finally, and perhaps the most evident risk to democratic freedoms is in possible arguments, referring to the preservation of the supposed public interest for the granting of preventive detention, which are based on the prevention of future actions. Here we would be facing a situation that would remind us of the movie Minority Report. Using the condition of activist, the possible practice of crimes is anticipated, which would turn Galo into a danger to society in advance. How, due to the fact of having a political motivation manifested by the intention to discuss the position occupied by certain characters that strongly stain our historical process, this would always put him in a position to promote new attacks against other monuments.

Ultimately, in the case of such a hypothesis, we would be facing a real premature conviction, based on considerations of future acts, based on the biased interpretation of the defendant’s political convictions.

Illegal arrests, fundamentally based on political motivations, at any historical moment (but especially when there is a resurgence of autocratic postures in the country), lead us to fear for the fate not only of Galo, but of anyone, since, in a way, we are driven by political motivations that are embedded in our personalities and actions. In this line of reasoning, would we all then inevitably be considered potential criminals?

  • Kenarik Boujikian, Retired Judge of the Court of Justice of São Paulo.
  • Marcus Orione, Professor at University of São Paulo Law School.
  • Michael Lowy, Emeritus Director of Research of the “Centre National de la Recherche Scientifique” (CNRS).
  • Ricardo Antunes, Professor of Sociology at State University of Campinas (Unicamp).
  • Ruy Braga, Professor of Sociology University of São Paulo (USP).