JUSTICE - No. 71

47 Spring 2024 ince the terrorist attacks carried out by Hamas against Israeli civilians on October 7, 2023, antisemitism has risen alarmingly around the world. Brazil is no exception; according to the Jewish Confederation of Brazil, there was an almost 1,000% increase in complaints of antisemitism in October 2023 compared to October 2022.1 From a legal point of view, antisemitism is a form of racism. In terms of repressing and dealing with racism, Brazilian legislation is quite advanced and offers interesting tools for dealing with antisemitism in court. By way of background, the Afonso Arinos Act (Act n. 1.390), enacted in July 1951, was the first legislation that criminalized acts of racism in Brazil. According to this Act, refusal by a commercial or educational establishment of any kind to host, serve, attend to, or receive customers, buyers or students, due to race or color, constitutes a criminal offense. The Act reportedly came about in response to a case of racism involving African American dancer Katherine Dunham, who was prevented from staying at a hotel in São Paulo because she was black.2 In 1967, the Federal Constitution established in Article 150, §1° that everyone was granted equal protection without distinction of sex, race, work, religious creed or political convictions, and that racial prejudice was punishable under the Act. In 1985, the Afonso Arinos Act was amended to include prejudice based on race, color, sex or marital status as additional criminal offenses. In 1988, the current Federal Constitution came into force. Within the new constitutional order, the fight against racism gained constitutional strength. One of the duties of the Federal Government, set out in Article 3 of the Constitution, is to promote the good of all, without prejudice based on origin, race, sex, color, age, or any other form of discrimination. To that end, Article 4 states that human rights shall prevail, and that racism shall be rejected. Finally, Article 5, which deals with fundamental rights, establishes that crimes of racism are not restricted by any statute of limitation and that offenders are not entitled to bail. Similarly, just as all individuals are granted protection under the Act, punishment under the Act is uniform. As a result, equality and freedom shall be guaranteed. In addition, according to the Magna Carta, all discrimination that may impinge on fundamental rights and freedoms will be punished. In 1989, Act n. 7.716/89 entered into force. This legislation was adapted to the new constitutional text and provided prison sentences for acts of discrimination or prejudice based on race, color, ethnicity, religion, or national origin. Accordingly, Article 20 of the Act states that it is a crime to practice, induce, or incite discrimination or prejudice based on race, color, ethnicity, religion, or national origin. The terms of the first paragraph criminalized the manufacturing, marketing, distribution or broadcasting of symbols, emblems, ornaments, badges, or propaganda using the swastika for the purposes of spreading Nazism. Furthermore, it rendered such conduct punishable by imprisonment of two to five years and a fine. The legislation also states that the judge may order the immediate collection or search and seizure of the materials covered in the first paragraph. Fighting Antisemitism in Court: The Brazilian Experience Fernando Lottenberg and Andrea Vainer S 1. Iuri Pitta, “Denúncias de antissemitismo no Brasil crescem 1.000% após guerra em Israel, indica Conib,” CNN BRASIL, Nov. 2, 2023, available at https://www. cnnbrasil.com.br/nacional/denuncias-de-antissemitismono-brasil-crescem-1-000-apos-guerra-em-israel-indicaconib/ 2. Fundação Cultural Palmares, “Lei Afonso Arinos: A primeira norma contra o racismo no Brasil,” Gov.br, Ministério da Cultura, Dec. 20, 2018, updated June 7, 2023, available at https://www.gov.br/palmares/pt-br/ assuntos/noticias/lei-afonso-arinos-a-primeira-normacontra-o-racismo-no-brasil

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