Law should establish the difference between a political refugee and a criminal

The trial by the Supreme Court (STF), ruling on the extradition request of the Italian Cesare Battisti, whose date has not yet been defined, can cause changes in Law 9.474/97, which addresses the granting of political refuge in Brazil.
The trial of STF will decide if the Ministry of Justice has the power to define if the alleged crimes committed by Battisti are regular or political crimes.

Even before the trial, the president of the Committee on Foreign Relations and National Defense of the Chamber, Deputy Marcondes Gadelha (PSB-PB), announced that he will propose changes in legislation, to prevent similar polemics to arise in the future.

Last Monday (26), the Attorney General of the Republic, Antonio Fernando de Souza, recommended STF to dismiss the extradition request of Battisti.

Committee
The concession of political asylum is ruled by the Constitution and regulated by Law 9.474/97, which implements the Statute on the Convention of the Refugee, issued in 1951. According to that law, the Ministry of Justice is in charge of decisions on refuge requests, through the National Committee to the Refugees (Conare).

The Minister of Justice, Tarso Genro, authorized two weeks ago the recognition of Battisti’s condition as a political refugee, despite of Conare’s contrary opinion. The matter is currently being reviewed by STF, which has been analyzing the extradition request submitted by the Italian government since May 2008.

If the Supreme Court rules against the minister’s decision, law has to be changed, since it provides that decisions of the Minister of Justice are not appealable. On the other hand, the same law excludes that benefit for those who have participated in terrorist acts or committed heinous crimes. Italy accuses Battisti of having participated in terrorist acts, by participating in four murders, from 1977 to 1989.

Gap in Law
For the deputy Marcondes Gadelha, the impasse around that case occurs because of a gap in law. “The minister’s decision will certainly raise controversies, since the law is not explicit, does not specify who deserves the status of refugee or who is simply considered a terrorist”, he argues. “We intend to immediately separate the wheat and the chaff, to make the precise discernment of who is a political refugee and a pursued person, or simply a criminal”, adds Gadelha.

For the legislative consultant José de Ribamar Barreiro Soares, despite the Refugee Law not explicating the definition for terrorist acts, the Law on Heinous Crimes can be an important indicator of it. Genocide and qualified homicide (such as the one committed in ambushes, for futile reasons or in case of kidnapping followed by murder), among others, are considered heinous crimes.

Right to defense
Last week, the President of the Committee on Human Rights and Minorities, Deputy Pompeo de Mattos (PDT-SP), sent an official letter to the President Luiz Inácio Lula da Silva expressing his approval to the decision of the Minister of Justice to grant refuge to the Italian. He agrees with the evaluation of Tarso Genro, which says that Battisti did not have the right to defense in his trial.

“Judged and condemned for subversion and not for terrorism or homicide, Battisti was accused of those crimes only later, in a lawsuit with an only and never-proved testimony, obtained by means of rewarded information. After three decades of the bipolar context of Cold War, in which Cesare Battisti was sentenced, the efforts of conservative Italian politicians to impose to the refugee a life sentence of imprisonment can only be construed as an anachronical ideological taint”, affirms Pompeo de Mattos, in the note he sent to Lula.

Battisti has been confined in Brasilia since March 2008, because of a preventive arrest order for purposes of extradition, issued by the Supreme Court. If STF ratifies the government’s decision, he will be released and allowed to live and work in Brazil.

Report - Cid Queiroz
Editing - Pierre Triboli
Translation - Positive Idiomas Ltda