Case Summary and Outcome

The Brazilian Superior Court of Justice stayed the investigation into a journalist who had written an article describing the positive outcomes if President Jair Bolsonaro died. The article was written soon after the President tested positive for Covid-19 and argued that his death would save lives, since it would put an end to rhetoric of downplaying the pandemic. The Minister of Justice ordered the Federal Police to initiate an investigation into the journalist for possible violations of the National Security Act. The Court stayed the investigation, holding that the journalist’s alleged conduct did not meet the National Security Act’s requirement of actual or potential harm to territorial integrity, to sovereignty, or democracy.

Facts

On July 7, 2020, Hélio Schwartsman, a Brazilian journalist, published an article in response to the news that Brazilian President, Jair Bolsonaro, had tested positive for Covid-19. In the article, published in Folha de S.Paulo and titled “Why I hope the president dies”, Schwartsman noted that Bolsonaro’s death  would be “regrettable” just as that of any other person, but that it would save lives by ending his downplaying of the severity of the pandemic; tension within democratic institutions; and the weakening of important environmental, cultural, and scientific policy. Schwartsman wrote he had “nothing personal” against Bolsonaro and instead was motivated by consequentialist morality.

The Minister of Justice and Public Security, André Mendonça, instructed the Federal Police to start an investigation into Schwartsman for criminal offences under the National Security Act (the Act). The order sent by the minister cited article 27 of the Act, which makes it a criminal offence, punishable by up to 3 years imprisonment, “to violate the bodily integrity or health” of the heads of the federal government in the three branches, including the President. Although not mentioned in the order, Mendonça had stated on Twitter that he would order an investigation into a possible violation of article 26 of the Act, which creates the criminal offence of “calumniating or defaming” those authorities. Under Brazilian law, calumny, or calúnia, is defined as falsely ascribing a crime to someone, while defamation, or difamação, is defined as ascribing a fact disparaging to someone’s reputation.

The Bolsonaro administration has used the Act – which imposes considerably longer sentences than those established by other criminal statutes – against its critics. The administration ordered an investigation into cartoonist Renato Aroeira for publishing a cartoon where the President is depicted saying “let’s invade another one” alongside a bloody swastika, after Bolsonaro had urged his followers to enter public hospitals during the Covid-19 pandemic to record videos checking the reported occupation of hospital beds. A constitutional complaint to stay that investigation was filed before the Supreme Court (ADPF no. 697).

Schwartsman filed a habeas corpus application before the Superior Court of Justice, seeking a stay of investigation. Under the Brazilian Constitution of 1988, a writ of habeas corpus is granted as a remedy against restrictions affecting an individual’s freedom of movement when these are a result of illegal action or abuse of power by public officials or any person acting in official capacity. Habeas corpus petitions have been used to block criminal persecution or criminal investigation in exceptional circumstances where the illegality of the state conduct is patently clear – such as when criminal charges are patently unfounded or are brought later than allowed by the statute of limitations.

Decision Overview

The application for a stay of the investigation was reviewed by rapporteur Judge Jorge Mussi. The main issue before the Court was whether an investigation into Schwartsman’s article was legally warranted, with reference to the criteria under the Act and the constitutional right to freedom of expression.

Schwartsman argued that the criteria under the Act had not been met as his conduct fell outside the scope of any criminal statute. He referred to Supreme Court jurisprudence in arguing that the scope of the Act is limited by two conjunctive criteria: (1) political motivation; and (2) actual or potential harm to territorial integrity, national sovereignty, representative regime, the federal union or rule of law. Schwartsman maintained that these criteria were not present in respect of his article.

He also argued that the investigation violated constitutional rights of freedom of expression and freedom of the press, as the article constituted his personal views, grounded in a consequentialist philosophical approach (which he had previously discussed in his column) and that all he had done was to exercise rights he and the newspaper enjoys under the Constitution.

Schwartsman also submitted that – even if he conceded that any crimes with the President as a victim could rise to the level of an offence against national security and the investigation was initiated under article 26 of the Act – he had not infringed section 26 as he had not attributed to the President any conduct that was disparaging to his reputation.

Justice Mussi granted the stay. A stay is granted when the petitioner makes a showing of two requirements: fumus boni iuris (the probability of the petitioner succeeding on the merits) and periculum in mora (risk of harm if a stay is not granted). He acknowledged that the precedents both in the Superior Court of Justice and the Supreme Court definitively show that the Act is limited by the two criteria, one “subjective” (related to the accused) and the other one “objective” (related to the alleged conduct), which must be read conjunctively. The effect of this is that the Act’s provisions which create criminal offences only apply when the accused acted with political motivation and the conduct shows actual or potential harm to territorial integrity, national sovereignty, representative regime, the federal union, or the rule of law.

Judge Mussi held that “notwithstanding criticism that might be raised” against the piece authored by Schwartsman [p. 37-8)], based on a cursory review of the article, there was “no political motivation, nor actual or potential harm to territorial integrity, national sovereignty, representative regime, the federal union or rule of law” [p. 38]. Judge Mussi held that the first requirement for a stay was met, and that the periculum in mora requirement for granting a stay was present, given the imminence of the date the police had set for questioning Schwartsman.

Accordingly, Judge Mussi granted the stay of investigation.