Hehehe, I came to CFC today because I knew this story would probably spark this sort of reaction from Luiz, and I wanted to add my perspective with less animosity towards the government and the country.
First and foremost, Cesare Battiste is in jail. He was arrested by request of the Italian Republic in extradition process 1085 before the STF, which is Brazilian Supreme Court. Now, Brazilian Constitution determines that a foreign sentence can only be ratified and gain an
exequatur (meaning executive force) after a simplified form of Due Process, in which the condemned has right to ample defense, and aim to prove that the sentence has vices (either of form or of content).
Well; that said, it’s useful to remember that Brazilian 1988 Constitution expressed the re-democratization process, and that caused influences, for the good and for the bad, to be on the text. For the
bad, we have the political amnesty – and I agree entirely with Luiz here that we should have people from both sides of the political spectrum judged – but was a concession of
realpolitiks. Truth is that the re-democratization was relatively painless with a more conscientious branch of generals sort of returning the power to the people, but they would have fought against that should the amnesty not have been granted. To prevent a bloody conflict, amnesty was the compromise.
I support we should revert it, but that topic is for another thread – and perhaps it’s true that the government wants only right wingers to pay, I’ll even give Luiz that (after all people on the government today were on the left-wing side back then), but it’s true for both sides, and we don’t see many outspoken right-wingers of the time calling for it to be lifted. So, in all fairness, they both kind are happy with the way things are, and nobody is really pressing hard for that to happen.
On the
good side, it made the constitution embrace what it calls
political pluralism, meaning the idea that no political ideal shall be repressed or be subjected to criminal charges, and this defense of pluralism includes the explicit determination that no one shall ever be deported for political crimes.
That is what Cesare Battiste is holding to; he is defining his actions as political, and as so, he has the right to have that perspective judged by the STF before the order is issued.
Now, upon his prison, he filed his defense in STF, and simultaneously sought to achieve executive/administrative political refugee status before the CONARE (national committee for refugees), a status which was denied unanimously.
However, as CONARE is but an organ of the Ministry of Justice, he made an administrative appeal to the Minister himself, who overruled the decision. Now this here is the final word of the executive branch save an unlikely intervention from the President himself (who already said agree with the Minister), and is the decision that is being broadcast in the press and causing the outrage.
It possibly is as bit political as Luiz says, but from my perspective, I can’t honestly tell if that is a good or a bad decision from a technical standpoint (more on that later), though I tend to have more trust in the CONARE due to its specialized body than in the politicized ministerial overruling. However, it’s worth of noting that Battiste condemnation is mainly based in the testimony from an alleged accomplice, Pietro Mutti, that allegedly regretted his actions and became a collaborator to the authorities, with the accused absent and lack of strong independent of the ties between Mutti and Battiste – hence the thesis of political persecution.
I’ll admit here and now that I don’t know the files of the Italian Process to comment on the veracity of this either way.
Now, to judge if that decision means that Brazil is rotten to the core, is something I’ll leave to the readers of this topic. I personally think it’s more of an anachronism than the pure evil of his diagnostics (Brazil would not have hold an Al Capone or a Ted Bundy, and there was a political component to Battiste’s actions, wheter that qualifies him as a political refugee or not – that quality obviously being what gained him Luiz’ animosity and the government sympathy). It’s also worth of note that the same Battiste also spend a lot of time in France, under protection of François Mitterrand (I guess France is also rotten to the core
).
Now, for the stuff the press ISN’T saying, is that while the Minister of Justice decision to grant political asylum is irreversible, he can still be deported for non-political crimes by the STF, should the court decide that his actions were not representative of political action, but just common criminality.
Hence, Battiste’s administrative pursuit had a political component – influence the court with his “status of refugee” – and a pragmatic one – the STF has jurisprudence saying that the administrative recognition of refugee status allows for the ending of incarceration originated by the foreign country.
So, he already applied for that, but the STF has denied on the grounds that such jurisprudence was formed when the status was recognized by technical decision from CONARE, not by political decision from the Minister of Justice. Hence, he is STILL in jail.
For all of you who want to check my facts, the following links are straight from the STF:
http://www.stf.jus.br/arquivo/cms/noticiaNoticiaStf/anexo/EXT1085GM.pdf
http://www.stf.jus.br/portal/processo/verProcessoAndamento.asp
http://www.stf.jus.br/portal/cms/verNoticiaDetalhe.asp?idConteudo=101844
Now, for the technical notes: Brazil’s extradition process is strict and demanding, and determine, first and foremost, that a person will not be submitted to political judgment, but only technical judgment, and that the kinds of crimes were common, not political.
In Battiste’s case, two of the murders are eminently political, and hence, cannot be grounds for extradition, under penalty of violation article 4º, X and article 5º, VIII of the Brazilian Constitution.
The problem are the two other murders, that are apparently common crimes. Thing is that, according to the ministers of the STF, the main grounds for denial is that the Italian criminal process has not followed the Due Process of Law: First, because the main proof against him is Mutti’s testimony, and not only Mutti alleges to have been tortured (what causes his testimony to be irrelevant under the doctrine of the fruit of the poisonous tree), it also constitutes a case of “Denounce for Advantage”, a situation in which the one makes the accusation gains more process advantages the more and more he denounces – making it untrustworthy as false accusations increase benefits as much as real ones.
Not only that, there are two technical problems – Brazil’s and Italy’s laws differ in key aspects. In Italy, a person can be condemned while absent from the bench. In Brazil, the process stays on hold as long as it takes for the accused to be under judicial custody. Therefore, the process that condemned Battiste may have been perfect for Italy, but it fails to meet Due Process conditions for Brazilian standards, and the STF has long and laborious jurisprudence of denying extraditions when the process of the condemnation does not meet at least the same standards of Brazilian law.
Finally, and most important, Brazil’s constitution expressly forbid any eternal penalty (article 5º, XLVII, “b”
, and Battiste was condemned to life in prison. Unless Italy makes a diplomatic commitment to commute the penalty to 30 years tops (which is the hardest Brazilian Law admits), than again the consolidate jurisprudence of the STF forbids the deportation. Problem is that, apparently, Italy can’t do that with breaking its own laws, and that creates quite a conundrum.
Ok, people, just wanted to add a little perspective to what is going on, and perhaps making some sense of the decisions made by Brazilian authorities, since press is quite lacking in that respect.
Regards
.
