Argentine who gave Nazi salute could leave prison on bail

Three Argentine fans arrested at the Neo Química Arena yesterday (28), during the game between Corinthians and Boca Juniors for the Copa Libertadores, spent the night in jail and had bail set at R$20,000 each.

Two of them were indicted for racial slur, in a case similar to last month, also in a Corinthians x Boca Juniors. The third was charged with apologizing for the crime after giving a Nazi salute in the visiting sector of the stadium. According to Chief César Saad, of the Civil Police of São Paulo, the trio spent the night in detention at the Department of Strategic Police Operations (DOPE), in the Barra Funda neighborhood of São Paulo. Lawyers for the three are in contact with the families to try to get the money together and post bail.

The case of this third man is a legal knot, so the indictment for apology of crime and not apology for Nazism. The apology for Nazism is a crime provided for in Law 7,716/1989, but it does not deal with greetings, but specifically with objects “that use the swastika”.

There is still precedent from the Federal Superior Court (STF), which ruled that Nazism is a non-bailable crime in a famous 2003 trial, the Ellwanger case, about a writer who denied the Jewish Holocaust in his books. However the decision was about “writing, editing, publishing and marketing books” with such apology, not salutations. In the cold letter of the law, they are different situations.

In all, five Boca Juniors fans were detained by the Military Police during yesterday’s match in Itaquera, after complaints from Corinthians fans present at the stadium. Two of them were released for lack of evidence, and three spent the night in jail. On the field, the teams drew 0-0.

A little over a month ago, in the last game between the teams, Argentine Leonardo ponzo he was detained for racial slur during the match and released the following morning, after posting a R$3,000 bond. He immediately returned to Argentina. Compared to that first case, the Justice stipulated almost seven times greater bail for the three fans arrested yesterday.

Difference between racial slurs and racism

In the case of the two Argentine fans arrested after imitating monkeys, the bail is a practical reflection of legislation that differentiates racial slurs from racism. In the first case, offenses against a specific person are framed; in the second, to the community. The Federal Constitution is clear in saying that “the practice of racism constitutes a non-bailable and imprescriptible crime, subject to the penalty of imprisonment”, however, cases of offenses such as those practiced by the two Argentines are usually judged as racial injury, based on article 140 of the Penal Code.

In November 2021, the Federal Senate followed the precedent of the STF and proposed to equate the crime of racial injury with racism, which would also make cases of racial injury non-bailable (PL 4566/2021). However, to enter into force, the Bill would still need to be approved by the Chamber of Deputies and then sanctioned by the President of the Republic.

See Boca fans caught by Corinthians fans:

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