Protesters, Preventive Detentions and the Kafkian Nightmare

Franz Kafka‘s The Trial follows the tribulations of Joseph K., a white-collar bank employee who finds himself amidst an incomprehensible penal system. He cannot figure out what he’s accused of, nor the steps of the trial, and his possibilities of defense are limited. A murky bureaucracy permeates everything and secrets reinforce the uncertainties of Joseph K.’s condition.

Kafka seemed to have Brazil in mind.

At the eve of the FIFA World Cup finals (on July 12), several protesters were arrested and 26 arrest warrants were dispatched. Those arrested were accused of gang formation and the arrests were justified by the supposed imminent violent protests during the finals – hence the preventive detentions.

Since then, there have been several problems with the process and the provisional incarceration.

The very fact that the arrests were made just before the World Cup finals can be interpreted as an intimidation measure. Amnesty International spoke up and stated that the arrests were the “reenactment of a pattern of intimidation that had been identified by the organization before the kick-off of the tournament.”

Giving credence to that conclusion, the protesters and their lawyers didn’t have access to the content of the accusations, making it impossible for them to defend themselves. Worse, even the judge responsible for the habeas corpus pleas filed in favor of the protesters, Siro Darlan, was denied access to documents related to the police investigation.

At least ten activists’ lawyers’ calls were wiretapped by the Civil Police – authorized by the Judiciary – including the landline phone of the Human Rights Defense Institute (IDDH). Coordinator Thiago Melo highlighted the fact that such surveillance violates the Statute of Lawyers, which guarantees phone secrecy to lawyers in exercising their trade:

The IDDH wiretapping is a violation of the guarantee of secrecy lawyers who work at the institute have a right to in their talks between them and their clients. This hurts an organization that fights for human rights and opposes cases of institutional violence, watching out for threatened individuals.

It was also not clear whether the evidence for preventive detention was strong enough, as stated by the accusation. According to the Delegacy of Repression of Information Crimes, the interception of calls and texts sent by activist Elisa Quadros, known as Sininho, revealed that she negotiated the acquisition of fireworks for use in protests. However, when did buying fireworks become a crime?

On July 23, judge Siro Darlan granted an injunction to release 23 protesters (5 of whom were arrested and the others who were “fugitives”), recognizing that there was no basis for their preventive detention:

6) . . . [T]he decision that mandated the preventive custody of the accused did not contextualize, in concrete, individual and identifiable terms in the filings of the trial the necessity of segregation of the accused, bearing in mind the existence of other less onerous restrictions.

7) Thus, the decree of preventive custody did not analyse the inadequacy of alternative preventive measures other than incarceration . . . being it certain that the Magistrate can only decree such an extreme measure when there are no other measures which are less hurtful to the right of freedom of the accused by means of which it should be possible to reach, efficiently, the same goals desired by the preventive detention . . .

The preventive detention of the activists was how the state closed, with a golden key, the sports state of exception it built for the World Cup in Brazil, being the last abuse among so many committed by the state having soccer as the excuse — even though state abuse is but an ongoing reality in Brazil.

As to the use of preventive detention, the data speaks for itself. The prison population in Brazil, one of the largest in the world – over 550,000 people – is made up of a disproportionate number of preventive detainees: some 217,000 people behind bars wait for trial. One of the reasons almost half of the prison population hasn’t even been judged is the slowness of the judicial system, which is the reason preventive detentions get extended indefinitely. In practice, the Brazilian state uses private detention as a means of anticipating punishment.

Moreover, we should also question the number of legal justifications the state is able to use to detain people preventively. The penal code establishes that one of the hypotheses covered by preventive detention is the “guarantee of public order.” What is “public order?”

Criminal analysts have long challenged this supposed “guarantee of public order,” which has been used arbitrarily to imprison people without trial, indication or proof that they were, while free, impeding with the trial or about to commit another crime.

History is important here. The Brazilian penal code was created during Getúlio Vargas’ dictatorship and its penal trials aimed to strengthen the punitive power of the state. Back then, Getulio’s regime went so far as to instate a presumption of guilt in the Decree Law number 88 from 1937 for crimes against national security, where it read, “the accusation is presumed proven, and the accused has to produce evidence to the contrary.”

The Penal Trial Code has been ammended but several of these authoritarian impulses remain, such as the vague “guarantee of public order.” This Brazilian judicial tradition, in actuality, defends the state against the individual, punishment and the Kafkian nightmare instead of liberty.

Guarantees such as due process, presumption of innocence, habeas corpus and the ban on arbitrary detainments exist to protect us from the state. Without them, no one is safe.

Translated from Portuguese by Erick Vasconcelos.