The repeal of the current National Security Law is an essential requirement for the country’s redemocratization. The Federal Council of the Brazilian Bar Association (OAB), which has issued numerous statements on the subject, approved a rigorous new pronouncement, which we feature in this issue of the journal and which was drafted by its director, a member of that Council. From Professor Lola Aniyar de Castro, who heads the Institute of Criminology at the University of Zulia in Maracaibo, Venezuela, and who is, without question, one of the most distinguished figures in Latin American criminal science, we publish an important study on criminalization and decriminalization as functions of the penal system and the social system. In the doctrinal section, the reader will also find in this issue a study by Professor Manoel Pedro Pimentel on the controversial question of legal entities as the passive subject of the offense of defamation, as well as a thoughtful study by Chilean professor Juan Bustos Ramírez, unfortunately in exile today, on criminal policy and wrongful acts (injusto), examining several intriguing technical issues.In the “Comments and Communications” section, an article appears by Professor Sergio Demoro Hamilton on traces of voluntary jurisdiction in criminal procedure, alongside an exhaustive work by Dr. Wagner Brússolo Pacheco on judicial pardon. Here we also publish an obituary of Professor Sebastián Soler, authored by Dr. Celso Delmanto, through which we pay tribute to the departed master, as well as a study by Professor Ricardo Antunes Andreucci on the prominent figure of Costa e Silva. In addition to our customary sections, this issue is enriched by a general index of the entire collection covering issues 17 to 30, prepared by Professor Alexandre Moura Dumans. Since this journal began publication, we have already issued two general indexes: the first appears in issue 4, and the second in issue 15/16. This will enable readers to make better use of the published materials.…legitimate. We wish to proclaim that an internal security defense law (which aims to preserve the existence and integrity of the supreme organs of the State and the political and social order that it establishes and protects) can only be legitimate when it serves as the instrument of self-defense of a democratic system of government. Lawyers consider it their duty to state these truths to the nation and to ground upon them the premises for a recasting of the law. 4. It is a matter of protecting the security of the State as a legal interest (bem-interesse) of fundamental importance. On the level of external security, this legal protection is aimed at preserving national independence, territorial integrity, and defense against foreign aggression. On the level of internal security, the objective is to protect against sedition the organs that structure the government in the form provided for by the Constitution. We are well aware that today internal security and external security sometimes become intertwined, with attacks on the former being inspired and organized by foreign powers. This does not impair the conceptual clarity. We are weary of hearing hypocritical references to “international communism” and “alien doctrines” used as justifications for arbitrariness, political oppression, and torture. 5. Moments of peace and institutional normality are the most suitable for a revision of the legal framework governing crimes against State security. We believe that this is the proper moment. And we wish to affirm that there will be no redemocratization as long as the current law remains in force. Crimes against State security must return to the Penal Code. The system of special laws for the repression of these crimes arose to subject them to a special regime, casting aside elementary guarantees of substantive criminal law and criminal procedure in the name of an alleged, more effective repression. This is profoundly undemocratic and ultimately leads to penal terrorism. The punitive system performs an extremely limited role in crime prevention. The preventive effect of penal threats has not been demonstrated, and it is particularly doubtful with respect to political crime and offenders of conviction (criminosos por convicção). It should not be assumed that severe laws control the phenomenon of political criminality; the best prevention against it is the establishment of a democratic regime that provides ample room for contestation and for the participation of diverse currents of opinion in the formation of power. A democratic repressive system is, therefore, one that employs punitive instruments sparingly, as the ultima ratio of a system for the legal protection of fundamental interests. At a time when a reform of our Penal Code is under consideration, Brazilian lawyers believe that crimes against State security should be incorporated within it, comprising the final title of the Special Part. This is how democratic nations define offenses of this nature. We reserve the right to collaborate in this task at the appropriate time, but we wish to establish certain fundamental principles straightaway. 6. A law defining political crimes cannot serve as an instrument to terrorize and persecute workers in conflicts arising from demands for better employment conditions. The current national security law has served this exact purpose, lending credence to those who view it as a natural means for the ruling class to effectively defend and preserve its interests through the domination and oppression of the proletariat. We denounce as deeply iniquitous the prosecution brought against the metalworkers of Santo André and Diadema, in São Paulo, solely for carrying out a peaceful strike devoid of any political connotation. It is beyond evident that such a strike neither affected nor could have affected the fundamental interest of State security; for this reason, it could never constitute a political crime. The strike is a right of workers, who consistently stand at a disadvantage in disputes over employment contracts. The current anti-strike law, one of the monstrosities spawned by the military regime, is already exceedingly repressive in both labor and criminal spheres, rendering any recourse to the national security law an act of violence and excess worthy of the worst dictatorships. The only conceivable provision for strikes in a law defining crimes against State security would be one addressing subversive strikes—that is, strikes conducted exclusively for political purposes with the intent to compromise the country’s internal security. It is illegitimate and disingenuous to distort the legitimate protection of the State’s political interests, providing employers with an instrument of terror to subjugate and oppress the working class. This appears to us to be the most egregious aspect of the current national security law. Another equally vital task will be the revision of the existing anti-strike law, putting an end to the fascist union structure that has persisted among us since the Estado Novo. The scandalous and growing inequality in income distribution, eloquently denounced at the Puebla Conference, stems primarily from a model of capitalist growth that keeps a large portion of the labor force in conditions of underemployment, reduced production rates, and severe exploitation. This is attributable not only to the country’s agrarian structure, but also, and especially, to the weak bargaining power of the working class. To this end, suppressing trade union freedom and proscribing the right to strike have been essential to the ruling establishment. The inclusion of peaceful strikes within the scope of the national security law is an aberration that reflects, in the most brutal manner, the power to dominate and control the working class by extinguishing its ability to exert pressure. 7. A second important aspect to consider concerns offenses involving the expression of thought, to which the national security law assigns exceptional gravity based on the puerile notion of adverse psychological warfare. The national security law has served to persecute journalists, workers, students, and parliamentarians in an abusive and illegitimate manner. In a democratic regime, it is a difficult and delicate task to delineate with precision the boundary of punishable abuse in the expression of thought. What characterizes a democratic regime is precisely controversy and the free expression of opinions and ideas. The dividing line between freedom and punishable abuse must be drawn in situations involving an overt affront to concrete values relating to honor and public peace. From the perspective of State defense, this task becomes even more delicate. Punishment can only be justified for acts that carry the potential to imperil internal security (sedition) and external security (treason). In any event, it is crucial to bear in mind that these are non-severe offenses, as they are invariably crimes of remote danger through which the protected legal interest can hardly be harmed. 8. It seems to us that offenses involving the expression of thought committed through the press must return to the Press Law. It is the press that ensures the most complete democratic articulation of public opinion, constituting the primary instrument of opposition and survival for minorities. In the ruling on the famous Dennis case, Justice Douglas of the United States Supreme Court, referring to freedom of the press, stated: “This freedom has occupied a preferred position in our society. Its protection is essential to the very existence of a democracy. The airing of ideas releases pressures which otherwise might become destructive. Full and free discussion has indeed been the first article of our faith. We have founded our political system on it. It has been the safeguard of every religious, political, philosophical, economic group among us. It has been the one single idea that has dominated all other ideas that have made our institutions the symbols of freedom and equality.” As Jefferson used to say, the press is the guardian of all other liberties: democracy cannot endure without the free reporting of events and the open discussion of government decisions. On December 5, 1788, the Parlement of Paris proclaimed that freedom of the press is the sole guarantee of all rights. This liberty was painstakingly won, emerging in the great political charters of the eighteenth century as a principle of constitutional status. The Declaration of the Rights of Man and of the Citizen of 1789, in Article 11, affirmed that the free communication of thoughts and opinions is one of the most precious rights of man. Experience has demonstrated that in proceedings brought against journalists for alleged violations of the national security law, the abuse lies with the persecutors. In tribute to the foundational role of the press in a democratic regime, offenses involving the expression of thought against State security must be governed by the Press Law, thereby subjecting them to the special regime applicable to press offenses. 9. Offenses against the honor of the President of the Republic and other high-ranking officials should not be included among crimes against State security. The system established by the current law derives from a totalitarian conception that, on the one hand, confers upon rulers a right to exceptional respect and reverence along the lines of the crimen majestatis—incompatible with a democratic regime—and, on the other hand, equates the personal honor of rulers with an aspect of the nation’s internal security. It is exceedingly difficult for offenses against honor to genuinely jeopardize the security of the State. This would only be conceivable in exceptional circumstances, where a subversive insult was directed against the established order with the explicit aim of undermining the obedience owed to governing authorities. It is absurd to assume that an opposition deputy who referred to the President’s “democratic cynicism” compromised, or could have compromised, internal security. The criminal-law protection of the honor of the President of the Republic is already handled effectively within the ordinary Penal Code. The German Alternative Draft followed this very approach, and an outstanding justification for it, from the perspective of a democratic system of government, can be found in its explanatory memorandum (“Alternativ-Entwurf eines Strafgesetzbuches, Politisches Strafrecht,” Tübingen, Mohr, 1968, p. 107). 10. Incitement, propaganda, and public advocacy (apologia) must be strictly delimited by the fundamental concept of the legal interest to be defended: State security. The vague and dangerous formulations of the current law must be abandoned. The propaganda sought to be prevented and punished must be exclusively that aimed at promoting subversion on the domestic front or posing a danger to external security. The incitement contemplated is solely that directed toward the commission of crimes against State security. 11. A third aspect upon which we wish to dwell is that concerning terrorism. Terrorism is always a grave crime against State security. Yet nothing justifies the enactment of special anti-terrorism legislation. The experience of countries that enact this type of legislation is simply lamentable. In the criminal repression of terrorism, it is essential that the State resist the temptation to institute a criminal law of terror, which, besides violating the constitution, proves entirely ineffective. The problem of terrorism cannot be resolved through legal expedients. The most effective prevention against terrorism is, beyond doubt, the creation of a more just and humane social order that puts an end to scandalous inequality, social injustice, and political oppression, laying the foundation for a democratic society. These considerations apply equally to right-wing terrorism, of which we have seen numerous manifestations in recent times. In Latin America, this form of terrorism commonly appears linked to the apparatus established by military dictatorships. Right-wing terrorism aims at hard-lining and entrenching the regime, and it is defeated precisely through the preservation and consolidation of a democratic, just, and egalitarian political and social order, within which such terrorists are isolated as a marginal group of common offenders. The remedy for right-wing terrorism remains the same: democracy, liberty, and social justice. 12. There is no specific, standalone criminal offense denominated terrorism. The term applies to a category of crimes against State security characterized by causing substantial harm to persons or property through the actual or potential instigation of terror or intimidation for political or social ends. By employing vague and indeterminate phrasing regarding the criminal conduct—thereby violating the principle of legality (reserva legal)—the current national security law demands a complete overhaul in this regard. Terrorist offenses are crimes against internal security. There is no economic and social order independent of the political regime that governs and protects it. 13. A fourth and final aspect of the matter before us must be emphasized here: jurisdiction to adjudicate crimes against internal security must return to the ordinary judiciary (justiça comum). The jurisdiction of the Military Justice system was inspired by the doctrine of subversive warfare and has no justification within a democratic system for the repression of crimes against State security. 14. The Brazilian Bar Association (OAB), reiterating its previous pronouncements on the national security law, insists on the imperative need for its repeal, presenting in this document the general framework for a new legal regime governing crimes against State security in its most salient aspects, as deemed appropriate for a democratic regime of free men. It further reserves the right, at the suitable time, to present to the nation a draft bill defining the offenses to be incorporated into the Penal Code, constituting an autonomous title for this category of crimes.
Note: This text is an English translation of the original preface published in Portuguese in the Revista de Direito Penal.