Saying “gypsies have to obey the law” is “an apodictic proposition”that is, a irrefutable judgment or truthevident and logically demonstrable, which does not admit of dispute, because “stating that a certain group of people has to comply with the law (…) corresponds to evidence”, with the “realized purpose of transmitting a message of a political nature and calling for public debate and for the presidential campaign the issue of integrating the Roma people into society.”
Proclaim “immigrants cannot live on subsidies” is “to invite public debate on the issue of the criteria for granting or maintaining residence permits for immigrants, implicitly maintaining that they cannot be in a regular situation in national territory if they only move to national territory to receive social benefits without contributing or having not contributed to Social Security”; “the public debate about the specific requirements on which a residence permit in Portugal depends is a matter of political relevance and which in itself is not discriminatory, under penalty of any understanding that limits or restricts the possibility of immigrants obtaining a residence permit in a given country proving discriminatory, which we believe no one will support.”
Therefore, postulates prosecutor Carlos Rodrigues, from the Department of Investigation and Criminal Action (DIAP) of Lisbon, in order ordering the shelving of the investigation into the posters placed by the campaign of Chega’s presidential candidate, André Ventura, namely those that read “Gypsies must comply with the law”, “Immigrants cannot live on subsidies” and “This is not Bangladesh”, “there is no insult, defamation or incitement to practice discriminatory acts against a minority or vulnerable group, which is why it does not appear to be discriminatory for the purposes of criminal law”.
It is therefore possible, he determines, “to safely conclude that the crime reported has not been fulfilled [Discriminação e incitamento ao ódio e à violência, previsto e punido pelo artigo 240.° do Código Penal] or any other.”
What is at issue, considers this representative of the Public Ministry (MP) in the aforementioned document, to which the DN had access, is “freedom of expression within political discourse”which “constitutes one of the essential foundations of any democratic society, one of the primary conditions of its progress and the development of each individual, with statements ‘that offend, shock or disturb’ being admissible” and, “corresponding to the content of the posters posted with messages of a political nature, in the context of participation in public space in the context of an election campaign, by a citizen recognized as a politician, under freedom of expression and political participation, not exceeding the threshold of confrontationemerges as inevitable deduction of filing order.”
The judge even goes so far as to indicate that, if his decision had been different — that is, if he had not closed the investigation — he could have been committing an act of discrimination, violating the principle of equality enshrined in the Constitution (a principle from which the existence of the crime typified in article 240 of the Penal Code derives). This is what seems to be extracted from a quote made by criminal lawyer Nuno Igreja de Matos: “The repudiation a priori of certain ideologies of public space would configure a form of censorship of ideas that would conflict with the principle of equality and the prohibition of non-discrimination that elevate ‘political or ideological convictions’ to categories suspected of unequal treatment, under the terms of article 13.º n. ° 2 of the Constitution of the Portuguese Republic. Then, all ideologies (…) can in certain cases be the object of protected political discourse.”
Prosecutor challenges the Civil Court’s interpretation
The investigation that resulted from the receipt, at the Attorney General’s Office, of 51 complaints regarding the posters in question, including those from the human rights associations SOS Racismo and Associação Portuguesa de Apoio à Vítima, as well as from the lawyer António Garcia Pereira, and the merger of two other criminal investigations, arising from the DIAP of Amadora and Sintra, was thus archived.
Stating that it does not make sense to carry out any investigative steps, or even “to make statements to André Ventura, in his capacity as presidential candidate, who utters the phrases/messages contained in the posters” (which means that he will not even have constituted the accused Chega leader), as “the mere reading of the posters” is enough to conclude “that no criminal offense has been completed”, prosecutor Carlos Rodrigues notes, however, that the messages referred to — of which, remember, the one referring to gypsies was, in civil proceedings, subject to a removal order last December — they may be illegal, but “civil or administrative”.
This despite making it clear that his perspective is radically different from the one that led judge Ana Barão, of the Civil Court of Lisbon, to agree with the six gypsy associations that filed a lawsuit so that the leader of Chega would be forced to remove the posters posted with that phrase.
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