The special committee of the Chamber responsible for analyzing the project on counter-terrorist actions this Thursday (16th) approved the report by the Pocket Representative Sanderson (PSL-RS) which excludes illegality for counter-terrorist public agents and which, according to human rights organizations, would open a loophole for the repression of social movements.
The opinion was approved by 22 votes to 7. The deputies still need to analyze suggestions for changing the base text. After the collegiate, the text could already be guided in the plenary of the Chamber. If approved, to take effect, it will still need to pass through the Senate and be sanctioned by President Jair Bolsonaro.
The project is authored by Deputy Vitor Hugo (PSL-GO), another pocket scientist and former government leader in the Chamber. The text was presented in March 2019. In June this year, the president of the House, Arthur Lira (PP-AL), elected with the support of president Jair Bolsonaro, created a special commission to analyze the issue.
The approved report is criticized by human rights organizations for considering a open concept of terrorism and for authorizing the application of the measures in acts that, even if not typified as terrorism, “are offensive to human life or effectively destructive in relation to any critical infrastructure, essential public service or key resource.”
The fear is that the definition includes social movements. In a statement, the human rights organization Conectas says that in the proposal there is no element that differentiates the terrorist act from common crimes and that the only requirements for them to be configured are “generic results such as ‘danger to human life’ and ‘affecting the definition of public policies’, which do not even need to materialize, since it is enough for the agent to ‘appear to have the intention’ of causing them”.
For deputy Alexandre Leite (DEM-SP), member of the special commission, the concept could ultimately lead to a trivialization of the term terrorism.
“Confounding armed groups, however violent they may be, that besiege cities, rob banks, with groups with other purposes, whether ideological or religious, requires a primordial debate on the definition of terrorism appropriate to Brazil”, he says.
“I’m not going to say that black blocs or armed groups should be well accepted, but we start to trivialize terrorism, instead of thickening the penalty or the rigor of the law for these cases of gang formation, besieging cities”, he adds. “Mixing this with terrorism ends up weakening the law on terrorism.”
The text indicates that the actions foreseen in the project presuppose the participation of the Brazilian population, “especially in terms of collaboration with the government in obtaining information about suspicious attitudes” and in “building a safe and peaceful social environment”.
In addition, it provides for the protection of the identity of public agents employed in counter-terrorist actions, including the use of an identity different from the real one of the agent. Social movements warn of the possibility that they will infiltrate groups with the argument of “preventing or combating the terrorist threat”.
The bill establishes the National Counterterrorist System and provides that the execution of the National Counterterrorist Policy will be determined by the National Defense Council and implemented by the National Counterterrorist Authority, appointed by the President of the Republic.
The text says that authorities responsible for the Joint Command for Special Operations and the National Group for Special Operations will be able to ask the courts to determine to cell phone operators the geographic location of specific telephone sets.
According to the text, the application will be distributed, under the secrecy of justice, and the judge must immediately render a reasoned decision.
“He gives prerogatives that belong to the Public Ministry, such as requesting a wiretap and investigations. It takes away powers from the Public Ministry”, adds Leite. “For me, the ideal instance would be the Federal Supreme Court. If you are using common justice, it is because you intend to use it everywhere in Brazil, and this is not a rule, it is an exception. Exceptions are dealt with at the Supreme Court.”
One of the most criticized parts of the report includes exclusions of illegality. The first provision proposes self-defense for the public agent who shoots to “safeguard the victim’s life, in real or imminent danger, caused by the action of terrorists, even if the result, due to an excusable error in execution, is different from the desired one”.
There is also a provision “in strict compliance with the legal duty or in self-defense of others, as the case may be, the counter-terrorist public agent composing a tactical team in the resumption of facilities and in the rescue of hostages that, by excusable error, produce a result different from that intended in the action .“
And also in “a state of need or in the context of unenforceability of a different conduct, the infiltrator who practices conducts typified as a crime when the situation experienced imposes it, especially if characterized as a risk to his own life.”
“It’s a license to kill. You can shoot the victim to kill the terrorist. What would be acceptable? Killing the victim to kill the terrorist and save 100 is excusable collateral damage. The way it is here, if you kill one by one or two hostages by a terrorist you’re safe. It is excusable depending on the situation”, emphasizes deputy Alexandre Leite.
In a statement, the Regional Office for South America of the United Nations High Commissioner for Human Rights criticizes the measure. “By reducing the sanctions for State agents who injure or kill in self-defense, added to the breadth of the concept of terrorism, it will grant a kind of license to kill in the event of a threat, however vague,.”
The bill indicates that the Joint Command of Special Operations and the National Group of Special Operations, strategic counterterrorist units, will be directly subordinate to the President of the Republic or to the authority designated by him and will be composed of specially selected military and civilian personnel.
“We are seeing a project that creates exceptional powers for the federal government to build a kind of personal guard for the president of the Republic”, says deputy Paulo Teixeira (PT-SP).
“And this personal guard of the President of the Republic is instituted from the withdrawal of powers from the national public security system, which involves the Federal Police, which involves the Abin, which involves the state police, which involves the Armed Forces, which involves every single system of public safety.”
In the evaluation of deputy Fernanda Melchionna (PSOL-RS), the project “is a political and legal excrescence.”
“In crimes that do not occur in Brazil, a real political police is created against democratic freedoms and even giving license to kill,” he said. “There is a unit of police entities, social movements and jurists pointing out the unconstitutionality of the project.”