New Legal Developments on Racial Justice in Brazil, Part I

Translation:
American Flight Attendants Will Answer For Racial Prejudice

Published on December 28th , 2006 at 10:31 am
Brazilian STJ (Superior Tribunal of Justice)


Two male flight attendants from American Airlines will answer for crime of racial prejudice in response to the offense committed against a Brazilian passenger. The decision is from the fifth panel of the Brazilian Superior Court (STJ), which denied review of habeas corpus to the North-Americans, Shaw Tiptonlic and Scott Mathew Goncalves, employees of American Airlines.

In accordance with the written information offered by the Public Ministry, Nelson Marcio Nirenberg, Brazilian, argued with both of flight attendants during the flight between NYC and Rio de Janeiro. Following the argument, the AA employee, Shaw, would have offended the Brazilian passenger saying: “Tomorrow, I will wake up young, beautiful, proud, rich, and being a powerful American, and you will wake up as a naughty, indecent, repulsive, bastard, and miserable Brazilian.” In accordance with the written information, the flight attendant, Mathew, would have helped in this act, due to acts of incentive and cooperation in the alleged racism offense.

The employees of AA were accused of racism practice, crime established by art. 20 of Law Cao, L. n. 7.716/89. The information was offered by the Public Ministry and was accepted by the Federal Court of Rio de Janeiro. The flight attendants filed a writ of Habeas Corpus in the Regional Tribunal of the 2nd region, which denied the review.
In the writ directed to the STJ (Superior Tribunal of Justice), the defendants contested the continuance of the proceeding arguing that the crime of racial prejudice did not occur, but rather a honor crime of injury. In this case, the crime would be of private action, and the Public Ministry would lack criminal jurisdiction and standing to enter with the criminal proceeding. The main argument of the defense is that the action of the flight attendants was offensive only towards the passenger and not towards the Brazilian people. The defense attorneys also contested the accusation against Matthew, since he did not commit the act himself.


Minister Felix Fischer, from the STJ, delivered the opinion of the Court reasoning that the intention of the accused, prima facie, was not to disrespect the passenger but to highlight his inferior condition because he is a Brazilian. The idea, therefore, is to highlight the perceived superiority of the American people in contrast to the alleged inferior position of Brazilians. This posture, in the Minister’s opinion, is against the Brazilian collectivity, and, consequently, covered by art. 20 of Law 7.716/89. The accusation was based on many depositions from several witnesses, who were present. The Court concluded that all the elements necessary for the inception of a public criminal proceeding are present, being inadequate the suspension of the proceeding because of lack of standing. The Court denies the review of the writ of Habeas.