JUSTICE - No. 71

48 No. 71 JUSTICE In 2003, the Brazilian Penal Code established the offense of “Racial Insult,”3 which assigned a more severe penalty for insulting people by referring to their race, color, ethnicity, religion, origin, or the condition of being an elderly or disabled person. Additionally, it rendered such conduct punishable by imprisonment of one to three years and a fine. This crime is directed at the use of derogatory words to offend the honor of a specific victim, while the crime of racism focuses on discriminatory conduct directed at a specific group. Regarding antisemitism specifically, this differentiation is made as follows: a slur directed at a specific person of Jewish origin, such as the hateful words “you dirty Jew,” would constitute the crime of racial insult. On the other hand, insulting the Jewish community with a general statement such as “Jews are dirty,” would be considered racism under Act n. 7.716/89. Until 2023, racial insult differed from the crime of racism both in terms of procedure and penalty. This means that for racial insults to be prosecuted, the offended party had to formally express the wish for the Prosecution to move forward (which the Brazilian Criminal Act calls “represent[ing] against the offender”), and the crime carried a more lenient penalty than racism. The Brazilian legislature passed Act n. 14.523 in 2023, which equalized the penalties of racial insult and racism. However, the new Act established that the penalties for insults specifically related to religion or for being elderly or disabled would be decreased by one-third to one-half when occurring in the context − or with the intention of − relaxation, fun, or recreation. The new legislation actualizes the understanding previously expressed by the Supreme Court that racial insults and racism are essentially equivalent in the way that they are harmful. Therefore, racial insults were a non-bailable offense and the statute of limitations for prosecution had to be eliminated. Regarding the use of this vast legal framework in the fight against antisemitism, it is important to mention the so-called Ellwanger Case of 1990, in which an owner of a publishing house was accused of publishing several books with notoriously antisemitic and revisionist content.4 When analyzing the case, the Brazilian Supreme Court held that publications seeking to deny historical facts related to the persecution of Jews, especially the Holocaust, encourage racial discrimination and, like the Nazi doctrine, justify the degradation, force inferior treatment and segregation of the Jewish people.5 Through this judgment, the Supreme Court showed its understanding that denying or relativizing the Holocaust is equivalent to inciting discrimination against the Jewish people and triggers Article 20 of Act 7716/89. As an example, the Supreme Court used the so-called “Protocols of the Elders of Zion,” which according to the opinion of Justice Ellen Gracie, “corresponds to a crude fabrication, constructed by antisemites, exhaustively debunked and which, despite this, more than a century later, still corresponds to the antisemitic creed.”6 In analyzing the case, the Supreme Court also established that public freedoms are not unconditional; they must be exercised in harmony with other rights, and courts must observe the limits defined in the Federal Constitution. The ruling categorically states that freedom of speech does not create the “right to incite racism,” since a civil right cannot be a safeguard for illegal conduct.7 The precedent is, therefore, very strong in the fight against antisemitism and is still used today when such cases are brought to justice. 3. Art. 140 − Insulting someone, offending their dignity or decorum: Penalty − detention, from one to six months, or a fine. §3°− If the insult consists of the use of elements referring to race, color, ethnicity, religion, origin or the condition of an elderly or disabled person: Penalty − imprisonment from one to three years and a fine. 4. The antisemitic books published by the defendant include: Henry Ford, “The International Jew − The World’s Foremost Problem,” THE DEARBORN INDEPENDENT, Vol.1 (1920); THE SECRET HISTORY OF BRAZIL, and BRAZIL − BANKERS’ COLONY, both by Gustavo Barroso; Sérgio Oliveira, THE PROTOCOLS OF THE WISE MEN OF ZION; HITLER − GUILTY OR INNOCENT?; Louis Marschalko, THE CONQUERORS OF THE WORLD − THE REAL WAR CRIMINALS; JEWISH OR GERMAN HOLOCAUST? BEHIND THE SCENES OF THE LIE OF THE CENTURY, by the defendant Siegfried Ellwanger himself, published under the pseudonym, S.E. Castan. 5. Supreme Court, Habeas Corpus 82.424/RS, Original Rapporteur Justice Moreira Alves, Justice for final opinion Maurício Corrêa, 17.9.2003, DJ 19.03.2004, fls. 230. 6. Opinion of Justice Ellen Gracie, Supreme Court, Habeas Corpus 82.424/RS, Original Rapporteur Justice Moreira Alves, Justice for final opinion Maurício Corrêa, 17.9.2003, DJ 19.03.2004. 7. Supra note 5.