Case Summary and Outcome

The Brazilian Supreme Court imposed house arrest with electronic monitoring on a congressman who had been arrested after posting a YouTube video threatening the Supreme Court justices. Although the congressman had argued that his position as a parliamentarian guaranteed him immunity for his statements and that his video was protected by the right to freedom of expression, the Court held that his conduct was not covered by those protections and that his arrest and detention were therefore permissible. The Court found Silveira’s videos constituted a true threat to the Ministers of the Supreme Federal Court as they intended to prevent and impair the independence of the judiciary as well as the maintenance of democratic rule of law – all of which was “clearly out of step with the postulate of freedom of expression.”

Facts

In February 2021, a Brazilian congressman, Daniel Silveira, published a video on YouTube which threatened and insulted the Supreme Court justices and which appeared to incite animosity between the armed forces and the Supreme Court. On March 16, 2021, Daniel Silveira was arrested and accused of violating the National Security Law nº 7.170 of 1973, which criminalized conduct that threatens national security and the political and social order. Silveria was detained.

Justice Alexandre de Moraes, of the Supreme Court, issued the arrest warrant which was endorsed by Parliament. Under the Federal Constitution of Brazil when the arrest of a congressperson is at issue, the decision must be sent to the respective House in which the member exercises his mandate, so that its members can vote and decide on the arrest, and the majority of parliamentarians voted to continue Silveira’s detention.

Silveira argued that the decision to arrest him constituted an attack on his constitutionally-protected rights to freedom of expression and parliamentary immunity. Silveira argued that there had been no crime committed because of his parliamentary immunity. In the alternative, Silveira submitted that even if his conduct was criminal the arrest was illegal because it had been carried out in flagrante delicto [“caught in the act”] and this form of arrest was not provided for by law for this offence. In this respect, the Court held that a video of possible criminal conduct constitutes an ongoing offence, and so an in flagrante delicto arrest is permissible for as long as the video remains accessible online.

The Court held that conduct intended to destroy the democratic regime, “preaching violence, arbitrariness, disrespect to the Separation of Powers and fundamental rights” is unconstitutional as the “Constitution does not allow the propagation of ideas contrary to the constitutional order and the Democratic State” [p. 2]. Accordingly, the Court ordered the “immediate execution of the arrest without bail in flagrante delicto of parliamentarian Daniel Silveira” [p. 7]. Moreover, the Justice determined that YouTube immediately block the availability of the video published by the congressman, under penalty of a daily fine of R$ 100,000.00 (approximately US$20,000.00 in 2021).

Silveira then approached the Supreme Court, seeking a provisional release from detention.

Decision Overview

Justice Alexandre de Moraes delivered the judgment of the Brazilian Supreme Court. The central issues for the Court’s determination was whether Silveira’s statements were protected by his parliamentary immunity and by the constitutionally-protected right to freedom of expression, and whether his continued detention was correct.

The Federal Prosecutor’s Office argued that Silveira, in his YouTube video, abused his right to parliamentary immunity to freely express his opinions and ideas and was seeking to extend the protection of parliamentary immunity to speech that is not covered by the immunity. The Attorney General’s Office stated that “no one can shield themselves with parliamentary inviolability so as to, without connection to their office, attack the dignity of others, or spread speeches of hatred, violence and discrimination” [Case File, p. 16].

The Court examined a lengthy transcript of Silveria’s videos to conclude:

“All the facts mentioned reveal the seriousness of the conducts accused, which not only offended honor and constituted a threat illegal to the safety of the Ministers of the SUPREME FEDERAL COURT, as they had a clear intention of wanting to prevent the exercise of judicature, notably the independence of the Judiciary and the maintenance of the Democratic Rule of Law, clearly out of step with the postulate of freedom of expression, given that it is denounced, expressly propagated the adoption of anti-democratic measures against the COURT, even defending the AI-5[1] , the toughest institutional act of the military regime and which took away numerous fundamental rights and guarantees of the citizen.” [p. 10]

After analyzing Silveira’s request for provisional release, the Court changed Silveira’s detention conditions to house arrest with electronic monitoring finding it to be a sufficient precautionary measure. The Court imposed restrictions on Silveira stipulating that he could not give interviews and use, even through his press officers, the following social networks: Youtube, Facebook, Instagram and Twitter.

[1] Institutional Act No. 5 (AI-5) was a decree by the military dictatorship in 1968 which gave the President of the Republic the power to dissolve the National Congress, intervene in states and municipalities, revoke political mandates, suspend the political rights of any citizen, and suspend the habeas corpus guarantee.