The Supreme Federal Tribunal (STF) of Brazil, the nation’s top court, ousted a democratically elected Congressman and sentenced him to eight years and nine months in prison on Wednesday for publishing a video on YouTube criticizing the STF.
Lawmaker Daniel Silveira – a veteran of the nation’s military police, freshman Congressman, and supporter of conservative President Jair Bolsonaro – was arrested in February 2021 after publishing the video. Silveira had accused the STF, dominated by appointees of former socialist President Luiz Inácio Lula da Silva, of having “no character, no scruples, no morals” and said that he had imagined an STF judge (in Brazil, formally a “minister”), “taking a beating.”
The profanity-laced rant also included accusations that STF Minister Alexandre de Moraes was torturing Bolsonaro supporters in prison. De Moraes had ordered violent police raids at the time against comedians, Youtubers, and other minor personalities who had expressed support for Bolsonaro over alleged “fake news” propagation.
Silveira was convicted of “intent to impede the free exercise of [judicial] powers” and “judicial coercion,” as well as accused of fostering animosity between the STF and the armed forces and inciting violence.
Conservatives in Brazil have reacted with outrage, noting that the same STF freed Lula – who at one point was sentenced to 25 years in prison for using public funds to buy luxury beachfront property – and has restored his political rights, meaning the former president is now a presidential frontrunner in the 2022 election.
De Moraes led the court on Wednesday to sentence Silveira to lose his seat in Congress, serve over eight years in prison, and pay 212,000 Brazilian reais (about $45,000) in fines. De Moraes also imposed five 2000-reais (about $432) fines on Silveira’s attorney, Paulo César Rodrigues de Faria, for making legal motions challenging the STF. Among Rodrigues de Faria’s offending moves were challenging the court’s ban on Silveira granting interviews, forcing Silveira off of social media, and barring him from contact with anyone under STF investigation for “fake news.”
Silveira can and is expected to appeal the ruling.
De Moraes declared during the ruling on Wednesday that Silveira did not have the right to express “criminal opinions” and that pure freedom of expression did not exist in Brazil, but “freedom of expression with responsibility.”
“The Constitution does not guarantee freedom of expression as a protective shield for the practice of illicit activities, for hate speech, for speech against democracy, for speech against institutions,” de Moraes claimed. “This is the limit of the perverted exercise of non-existent freedom of expression.”
“Freedom of expression exists for the manifestation of opposing opinions, jokes, satires, for wrong opinions, but not for criminal opinions, hate speech, an attack on the democratic state of law,” de Moraes asserted.
“This Court and the world in general agree that freedom of expression is not an absolute right and must be balanced with other values and constitutional rights,” another STF minister, Luís Roberto Barroso, added, concurring with de Moraes, “including democracy, the functioning of institutions, and the people’s honor.”
“Parliamentary immunity,” he continued, “is not a free pass to commit crimes.”
Multiple ministers also asserted that convicting Silveira and was necessary to protect “democracy.”
“We have seen in recent years orchestrated attacks against institutions, democracy and the rule of law. What we are judging, in the end, is the defense of democracy in our country,” Minister Dias Toffoli said. “What we are deciding here is the defense of the democratic rule of law. It is not the defense of a minister or a set of ministers.”
The judges did not clarify how ousting a democratically elected lawmaker was consistent with their claims of defending democracy.
Silveira gave his last speech before the ruling in Congress on Wednesday, condemning de Moraes personally as a “marginal” – an outlaw or a thug – and a “frustrated little boy.”
“I spent 11 months in prison, 11 months without a crime,” Silveira declared, “but I think that I was freer [there] because the smallest prison in the world is the robe of Minister Alexandre de Moraes, [a robe] which only fits a thug. It is very complicated to have this element of people inside the STF trampling the constitution.”
Silveira had only recently been released when de Moraes issued an order in late March for Silveira to wear an ankle monitor, triggering another dramatic episode in the saga. Silveira responded by barricading himself in his congressional office, where the constitution grants him total legislative immunity and daring the court to violate the law to force an ankle monitor on him. De Moraes reacted by imposing a 15,000 reais ($3,163.89) fine for every day Silveira was not wearing an ankle monitor, which the lawmaker said was a direct financial threat to his family. Silveira agreed to wear the ankle monitor at the time to protect his family, he said.
President Jair Bolsonaro has not at press time issued a statement following the verdict, but did say on Wednesday that Silveira’s arrest was an “attack on freedom” and that he “would not accept” a conviction “quietly.” Bolsonaro had effusively condemned the entire ordeal during the ankle monitor controversy, urging the public not to remain “calm” in the face of such an assault on the freedom of expression.
“We cannot accept what is happening passively – ‘oh, it’s not with me, not my problem’ … it will come to you,” Bolsonaro said at the time. “You can’t have counselors by your side saying always, ‘calm down,’ ‘wait for the right moment.’ Calm, my ass, damn it!”
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