(Wo)Men in Legal History SEBASTIAAN VANDENBOGAERDE Tris LELLOUCHE HELENE DUFFULER-VIALLE SEBASTIEN DHALLUIN BRUNO DEBAENST Live Centre d’Histoire Judiciaire 2016Ouvrage publié par le Centre d’Histoire Judiciaire (UMR 8025) with support of : _ Regional pole France “Scientific Council of Lille 2 University . Faculty of Law of Lille 2 University “Doctoral School for Legal and Political Sciences (ED75) "Centre d’Histoire Judiciaire - UMR8025 CNRS . Ghent University . Faculty of Law Ghent . Ghent Legal History Institute for research and higher education Université Lille Nord de On the cover : La Justice Jérome Delvallée Responsable d’édition : Farid Lekéal Lay-out : Sébastien Hicquebrant ISBN : 2-910114-33-3 © Centre d'Histoire Judiciaire, 2016 Université de Lille , 1, place Déliot, 59024 Lille cedex chj-cnrs.uniy-lille2. frWoman, Revolution, Law. The expulsion of Olga Benario Prestes before the Brazilian Supreme Court (1 936) Drieco NuNES Federal University of Uberlindia (Brazil) Woman: Olga Benario ‘An interesting woman. Communist Militant, hero to the Democratic German Republic. Wife of a revolutionary leader, expelled from Brazilian tertitory, A mother removed from her daughter. A Jew, killed in a gas chamber of a Lager. The life of Olga Benario has been well documented in literature’ and dramaturgy.” Born in Munich (Germany) in 1908 and a member of the German Communist party since 1926, Olga was accused of subversive activities and was arrested in 1929. After she was freed, she left to the USSR, where she went on to work on the Komintern. There she met Luiz Carlos Prestes,> an important Brazilian revolutionary leader in training, Olga was a part of the group of foreigners ordered to accompany Prestes in his return to Brazil to lead an armed insurrection for a revolutionary government. Olga and Prestes arrived clandestinely in Brazil in April 1935. In November 1935, they led a failed coup against the Getulio Vargas Government. In March 1936, they were captured by the police. Although she was pregnant, Olga was expelled from Brazil and handed over to the Gestapo in October. A month later, in the nursery of the Barnimstrasse concentration camp, her daughter with Prestes, Anita Leocddia Prestes, was born. TR Wannen, Olga Benario: die Geschichte eines tapferen Lebens, Berlin, 1961, translate in Portuguets Olge Benatar histérin de uma mulher corajosa, SXo Paulo, 1990; e F. Moras, Olga, S80 Paulo, 1993, translate in German as Olga, Frankfurt-am-Main, 1989. [21 G.tvrranme, Olga Benario: Ein Leben fiir die! Revolution, 2004 . sombined>; J. Monjaroim, Olga, 2004 ‘chttp:/ / www.imdb.com /title/tt0196811/?ref_=fn_tt tt . In theater, Joe B, Pensnea, Olga Benario Prestes, Recife, 2003; L.F. Lovo, Olga Benario: wm breve f'wr®, 2006; and R. Greet, Nao hd tempo para chorar, 1965; and the opera J. Anrunrs, G. Vatss, Olga, 2006, See L.LS. og Assis, AShod em Olga Benario Prestes de Joacil de Brito Pereira, Vértices 2011, 1-14. (1 On Luiz. Carlos Prestes, see A. ALVES De Askcu and A. Carneiro, PRESTES, Luts Carlos, in Diciondrio Histérico Biogrifico Brasileiro pds 1930, ed. A. Awves bE Askeu, Rio de Janeiro, 2010, .124 Dieco Nunes. Following an international campaign for her release, Anita Cae her paternal grandmother (1938). Olga Benatio was then transferred to Lichtenburg concentration camp and then to the one in Ravensbruck (1939 the 1942, she was taken to the extermination camp in Bernburg, where she dj : In the gas chamber.‘ in The goal of the present study is to anal lyse the legal arguments Presenteg by the Justices of the Brazilian Supreme Court! to deny the Habe. as Presented by Olga against her imminent expulsion.’ Instead of the a tepression path taken against Luiz Carlos Prestes, who was arrested, Ptosccuted criminally, convicted and remained in Prison until the end of World War TL, when he was pardoned alongside all political Ptisoners in Brazil, a different 5 adopted for Olga. The government decided to e: trategy ‘Was to be dangerous to national security, xpel Olga as she was understooq in a moment of gradual alignment between Nazi Germany and the authoritari: Present study, therefore, ian Brazilian “Estado Novo? regime! The analyses the arguments given by the Justi Supreme Court in HC n, 26.155/1936.8 . Ices in the In the first place, the merit will be analysed. A minority of justices discussed the requirements of the Habeas Corpus, with the intention to dismiss the motion, Pregnancy. The goal was that the not transcend her, since the baby was Brazilian, The secondissue deals with th jurisdiction. Olga was indicted, stemming from the communist tion about her, see A. ALves De Aureu, ution of1934 the Brazilian Supremo Tribunal Federal was named Corte sures ds asil, C. DE MELto, Notas sobre o Supremo Tribunal (Impérioe Reptiblica), Brasilia, 20 i r/arqui icacaoh ional Diciondrio. > (6 See V.C. Muniz, O caso Olga Benarin Prestes: um estudo critico sobre 0 Habeas Corpus 1° 26.155/1936, Direito & Justica 2011, i i isi i de Gpile/view/2065>; ASEM. Govoy, Dieta € Leese Vargas, 0 Estado Novo, a Lei de Seguranga Nacional e o Habeas Corpus em favor de Olga Benario Prestes. A historia entre martelos e togas, Jus Navigandi 2007, . (7) R.Surevtus, O Brasil vai a Guerra, So Paulo, 2008, senieMate [8] Bras, Conte Suprema [pos EstaD0s Unpos bo Brasil, Petgio de Habeas Corpus n, 26.155, paciente M Prestes, Relator oS. Ministro Bento de Faria, Distant Federal, 1936 . The Olga's lawyer Heitor Lima cen ee Leaeteey Your illegal name utilized to entry in Brazil, Mane Bergner Vilar, as Antonio Vilar’s wife. indeed Luiz. Carlos Prestes,Woman, Revounon, Law. 2 Brazilian territory. She would still need to serve the sentence for a political crime in Brazil, but it was more advantageous than return in her condition in Germany. Her potential crimes will be analysed, which could determine the adequacy of the arguments used. Finally, the paper analyses the preliminary issue of not recognizing the right of Habeas Corpus in éat de site, established by the government after the Tatentona Comunista’ By a court majority, this understanding prevailed and emitted Olga’s expulsion by a Presidential decree. As an introduction, however, will be a brief description of the failed communist revolt, which was the .stablished, the National Security Law alongside per there reason behind the episode: état de sidge was ‘was reformed with regard to expulsion, and Olga Benario was arrested Luiz Carlos Prestes. Revolution: the ‘Intentona Comunista’ of 1935 ‘The Brazilian Communist Party (PCB) did not have significant force in the national political scene until Luiz Carlos Prestes, leader of the military opposition movement in the 1920°, the “Tenentismo,” joined its ranks. The 1930 Revolution made the political debate reach the popular classes, which were up to that time aloof from the political-clectoral debate of the Oligarchic Republic (1 889-1930). However, that did not prevent the 1934 Constitution t0 crystallize the power of President Getilio Vargas over national politics. an eclectic opposition coalition emerged, the ‘Alianca 10 Members of the PCB, members of workers f the armed forces joined forces against the to suspend the payment of foreign f foreign companies in the Brazilian territory and land Luiz Carlos Prestes, was elected as d strikes and manifestations.'* The Security Law (LSN).1? On July 11 f ‘subversive In March 1935 Nacional Libertadora’ (ANL)- unions and low-ranking members ©: central government, Their intentions were debt, the expropriation o} teform. The so-called ‘Knight of hope’, president of honour. The ANL orchestrate’ Government reacted by means of the National 1935, the Government ordered that the ANL be closed on account o} activity against the political and social order.”? Tenentista movement in . ‘was published by the ‘Decreto n. 229 - de 11 de jullo de [9] See more about the legislation can be found in ividade-legislativa/legisl blicaco 13] The president Vargas, using the art. 29LSN126 Disco Nunes The PCB became the sole ostensive opposition force. The already sent other agents before Olga and financed the activities of the miscalculation of its mobilizing capacity sparked the p| Par . the planning for a tevolt th would, in their conception, promote the Communist revolution in Brazil a Mintern At the end of November, the Communists of Natal, Recife and Rio de Janeiro. The result military front, due to general lack of Support, and in the politic, the Government the justification they needed to Petsecute op, movement was donned ‘Intentona Comunista’ precisely for its disproportionate character," occupied barracks in the cig, " le Its wete disastrous : both in the al, as it Rave POsition, The unteasonable, In the aftermath of the ‘Intentona Comunista’, the Government changed the LSN.'5 They instituted (art. 20 and 21) a new tegulation for the immediate expulsion and the prohibition of entrance of foreigners considered dangerous to national security. Olga’s presence was unknown to t to Brazil to escort Prestes as a personal illegally. After the mission, she should with her newfound affair, Prestes, he police. In fact, she was Originally sent bodyguard when he entered the country have returned to Moscow, but remained as his companion. Olga was arrested with Prestes six months after the revolts of November 1935. The political police was headed by a Nazi sympathizer named Felinto Miiller. He planned different Strategies in dealing with the couple. While Prestes was considered the head of the revolt, therefore Prosecuted as a criminal and temained under arrest until the end of to Brazilian political subversive foreigner. World War II, when amnesty was given prisoners, Olga was detained, not for any crime, but as a 1935, Ordena o fechamento, em todo , 510, 1996,77- {14] D‘Aratjo, Oestado novo, 16;See also N, Hunn, Compendio de direito penal, Rio de Janeiro, (15) ‘Lei n. 136, de 14 de dezembro de 1935, il de 1935, ‘Modifica varios dispositivos da Lei n, 38, de 4 de abril € define novos crimes contra a ordem politica ¢ sovial” .Woman, REvowuTion, LAW. a Law: the expulsion proceedings before the Supreme Court (HC n. 26.155/1936) there were no criminal charges against Olga. The final report of related to the events in Rio de Janeiro suggested that Olga and 10 other foreign women should not be tried,"® but expelled from Brazilian ertitOXY- ‘The literature has raised the hypothesis that it was a Brazilian token of faith'” to reinforce relations with Nazi Germany." Formally, the police inquiry there would have been administrative xpulsion, with no particular 20 As it was an administrative ntrol its According to Brazilian Law, proceedings in the Ministry of Justice before the e: formal procedures,” and carried out by the President. act, judicial intervention in the expulsion proceedings were limited to co extainsic legality.” With regards to th Habeas Corpus- Since the situation request. Her Lawyer, Heitor Lima, she should remain in Brazil and be trie ntentona Comunista.” ¢ freedom of movement, the appropriate remedy was the was unusual, the writ had an equally unusual asked not for the client’s freedom, but that d by Brazilian Law as 2 participant of the Ever since Vargas’s ascension, the Supreme Court’s autonomy had been threatened.” Constitutional and legal changes limited the Court's possibilities and actions. HC 1. 26.155/1936, presented by Olga, confirmed the expulsion.” The merit was analysed by only three of the eleven justices from the court, who did not accept the request 07 substantive grounds. The majority, following the rapporteur, understood the remedy of Habeas Corpus not to be admissible in an état de sige. To better understand the legal questions raised and analysed by the justices, preliminary issues and merit will be presented separately. Merit will be first, as It was analysed only by a minority which did not accept to get to the substantive claims, 27 de novembro: relatério do delegado Eurico Distrito FEDERAL A insurreigfo de 1936, 185. by Moras, Olga. [16] Brasit, Pouicta Civit DO Bellens Porto, Rio de Janeiro, [17] Indeed it was a Felinto ‘Miiller’s idea, [18] Serrenrus, O Brasil ‘vai a Guerra. [19] A.B. ve Fan, Sobre o dieito de expulsio, Rio de Janeiro, 1929, 170. 162. ey pe Fania, Sobre o direito de expulsio, I) ve Fania, Sobre o direto de expulsio, 170. (2) EV. ; oat Federal ea construcio da cidadaniy a0 Paulo, 2006, 68. EV. on Coera, STE, Supremo Tribunal Feder ¢@ 5°70 siaeas Comms Aas, Acie: to Federal, 1996, 15, -128 Dieco Nunes the preliminary issue accepted by the majority. Merit: Nationality and criminal jurisdiction in action There were two substantive questions raised. The nationality of the unborn child; the second, the mandato: criminal jurisdiction. first dealt with the ty nature of Brazilian The problem of unborn child’s nationality Since a live birth is uncertain and Brazilian Law only protected pattimonial implications and potential Ptoperty rights of the unborn children, there was lacking legal basis for the justices to give a special protection to the unborn child, If the unborn child was recognized as Brazilian, due to Prestes, Olga could not be expelled, at least not until the birth of the child. The discussion, therefore, was about the tight to nationality for an unborn child.” The rule at the time, as now, is fus soli’. A Brazilian citizen is that born in national territory. Such tight could not reach the unborn child because she lacked an essential condition, live birth in Brazilian soil. The fact that Olga and Prestes had never gotten married made things more difficult. According to the Brazilian Constitutional Law, Olga could not acquire nationality by marriage. She declared herself as Prestes’s wife, but there were neither documents nor witnesses to attest the allegation. This had also implications with problem of the Presumption of paternity.” There was no legal certainty that Prestes was the father of Olga’s child. Therefore, the child’s nationality was uncertain, and the effects of the expulsion with regards to a Brazilian national were equally uncertain. Anita Leocadia Prestes® was born in German soil, daughter of a German Jewish woman and an uncertain father during the Reich citizenship Law.” Olga was not a citizen anymore, but a subject of the Reich. The Supreme Court's [24] Corre Surnema, Habeas Corpus n, 26.155, Acérdéo, 10 (justice Carvalho Mourso). (25] Cone Suprema, Habeas Corpus n. 26.155, Acérdiio, 12 (justice Carvalho Mourao). [26] _ See the Brazilian Constitutions of 1891 (Art. 69) and 1934 (Art, 106), See also DE FARIA, Sobre odio de expulsio, 152; R. Octavio, Le droit international privé dans la legislation brésilienne, Paris, 1915, 182; C. BeviLacqua, Direito publico internacional, Rio de Janeiro, 268, n. 9, [27] Corre Surnema, Habeas Corpus n. 26.155, Acérddo, 3 (justice Carlos Maximiliano). a [28] Anita Leocédia Prestes was professor in the Faculty of History at eerste Federal do Rio Janeiro, .130 ‘Disco Nunes Once ctiminally prosecuted, a foreigner would have to wait for the judgment in the country where she was prosecuted.” Only after the verdict would there A space for the possibility of an expulsion.”” ‘There was an ongoing investigation against Olga. However, a police inquiry in Brazil is a preliminary administrative proceeding to the actual criminal case, Thete is a valid criminal case aftet a formal indictment by a Public Prosecutor, The court understood that could only intervene if there were formal criminal procedures instituted.** Indeed, Olga’s cases did not fit into this requirement, since the police removed her from the insurrection investigation.” The paradox of this position is the recognition of the presumption of innocence, highly disregarded in cases of political crimes, It is rather strange that a person that was physically close to Prestes in the moment of his arrest would not suffer any criminal charges over the occurrences of 1935. Given the flexibility of the legality principle” in the crimes of the ISN, it would be almost impossible for someone in Olga’s situation not to be charged with any of them. It seemed to be a cleat political option — probably done at the request of the chief of police of the Federal District — to use the pre-emptive and immediate measure that is the expulsion instead of taking the ctiminal justice path. In analysing the conducts of Olga in Brazil, one could fit into the following criminal types: as the ‘head’ of the revolt (Article 1), as giving substantive support for the revolt (Article 4) or even as simply being a member of the Soviet Communist Party (Article 20, para. 2 and 4).‘! Procedure number 1 on the ex post facto National Security Tribunal (TSN) —telating to the ‘Intentona Comunista’— had hundreds of defendants and [36] _ Brasit, SurReMo TRIBUNAL FEDERAL, Accordao: n.°23,006, de 27 de Agosto de 1928. (Relator -0 Ministro Soriano de Sousa), Revista Criminal, 1928, 70. (37] There was a divergence, De Fania, Sobre o direito de expulsdo, 157-158, {38] _ Coxre Surrema, Habeas Corpus n, 26.155, Acirdao, 6 (justice Costa Manso). (39] Corre Surnea, Habeas Corpus n, 26.155, Acérdio, 1/ A (justice Carlos Maximiliano). [40] See more in M. Meccareu, Paradigmi dell’eccezione nella parabola della modernita penale: una Prospettiva storico-giuridica, Quademni Storici, 2009, 493-522. [41] ‘Lein® 38, de 4 de Abril br/ccivil 03/1 1949, m>. [42] Bras, Poucta Civit Do Districro Fepetat, A insurreicio de 27 de novembro: relatério do Delegado Eurico Bellens Porto, Rio de Janeiro, 1936; H.H. Vincuuno, Denuncia dos eabegas da Revoluio de 27 dde novembre, Rio de Janeiro, 1936; Brash, TRIBUNAL DE SEGURANCA NACIONAL, Autos do Processo n° 1 Réus Luis Carlos Prestes, Harry Berger e outros: Relator Juiz Rau! Machado, Rio de Janeiro, 1937. See more in D. Nunes, Beyond Europe: the role of European Legal experience in the Brazilian Estado Novo regime (1937-1945), European traditions: integration or dis-integration?, ed. J. OosTERHUS, E. VANWoman, REvoLution, Law. BI il in dozens of guilty verdicts. Is seems rather unlikely that Olga’s absence ses ysed solely on lack of evidence. The expulsion seemed here to present an que ct racter with regards to the punishment. One of the votes did not even ob a, 48 even justified expulsion in the case of political crimes.“ Under ee ; inal legality principle exposed in the code and of exception-government c legislation, there was room for a normative sublevel, a non-criminal norm Oe dissimulatively in order to achieve punitive goals.** ‘Atthe end, none of these issues were taken into account by the majority of eme Court. The merit was analyzed only by three justices and the jpstices in Supt e a ratified the expulsion as an absolute right of the State." Preliminary question: admission of Habeas Corpus during the tat de siege ‘The Court’s majority did not analyse the merits of the claim because Brazil was under an état de siége, which restricted a series of rights,‘” among which Habeas Corpus. One must analyse the legal correctness of such a partial suspension of the Constitution in order to be able to understand up to which point the Justices had alternatives to the verdict. President Vargas imagined that the repression against the Communists that participated in the revolt would be hindered by the sluggishness of ordinary legal institutions. He would rather need prerogatives that the Constitution did not attribute to him.“* The Constitutional Amendment Number 1, of 1935, gave the effects of a state of war to the état de siége,” characterized as an état de siége aggravated by ‘intestine commotion.” ‘The amendment allowed Congress to authorize the President to declare a fictitious state of wat. However, the constitutional change did not list expressly which constitutional guarantees would be suspended. The President himself i) ae Nijmegen, 2013, 207-220, specially 211-216. ‘Suprema, Habeas Corpus n. 26.155, Acérdao, 14-15 justice Carvalho Mourao). 6] apsiien Habeas Corpus n. 26.155, Acérddo, 14 Gjustice Carvalho Mourao). ' Seni wuccOL,, Codificazione civile e penale [2002], “Storia del diritto penale e dela giustizia, ed. M. (46) ona Milano, 2010, 987-988, ch urea, Habeas Corpus n. 26.155, Acérdo, 6-7 (ustice Costa Manso). 13} itis ECS, ‘Tratado das Constituigdes Brasileiras, Rio de Janeiro, 1965, 333. : ; Dibbe see the personal president's diary on December, ‘2m and 3°, 1935, in G. VARGAS, 9) Amend ‘aulo/ Rio de Janeiro, 1995, 449. [ nent 1, Const ‘of 1934: ‘Decreto Legislativo n° 6, de 18 de dezemibro de 1935, . (On December, 4, 1995, in Vancas, Didrios, 449.B2 Dieco Nunes would indicate which rights would be maintained. Immediately after Vargas request, the measure passed by in Congress." The declaration occurred in March, 1936, justifying the measure transmitted a grave tone of awe and te; maintained were expressly listed, the Habeas Corpus was nowh an ample whose tror,2 Majority Preambj oe Tights lefe to be foung 53 However, throughout 1936, the Brazilian Supreme Court had to the possibility of the Habeas Corpus. In the many occasions it was non-political reasons, the remedy was accepted, e. g, crimes. lecide on Used for » tO protect against Common Neither could the nature of the prison (be it judicial or administrative) be questioned when it was an issue of the political order. In such Cases the court could not decide as it would be limited to the constitutional Pact of non. interference between the Powers, The path to expulsion was Opened, as Olga’s administrative prison could not be judicially contested, not €ven outside the aggravated état de siége.* Concluding remarks Olga’s brief stay in Brazil and her expulsion from national territory was marked by a series of judicial manoeuvres, In prison, her status changed from criminal to pernicious foreigner. Using the very own indictment criteria from the LSN, Olga would be a political criminal. The police, however, did not even mention her in its final report on the ‘Intentona Comunista? The Expulsion procedure was thus legitimized and, with no legal Proceedings, the Supreme Court did not accept the argument of criminal responsibility. The expulsion tutned out to be an efficient means to deal with foreigners that opposed the regime, ‘The measure, which should have a preventive natute, {51 “Decreto legislation n. 5, de 25 de novembro de 1935, Autoriza o Presidente da Repiblica a declarar em estado de sitio, durante trinta dias, 0 territorio nacional; 153] ‘Decreto n? 702, de 21 de Margo de ine inthe Consitain of 24 Aaa es "G0 46,’ the Habeas Corpus rule was in the 54] Conte Surnema, Habeas Corpus n, 26.155, Actrdéo, 5 (justice Costa Manso). 155] Corre Surnena, Habeas Corpus n, 26.155, Acébrdio, 6 (justice Costa Manso).‘Woman, REVOLUTION, Law. 133 pecame 4 sublevel of legality, in which extra-criminal norms acquired an element of punishment Olga being 2 woman weighted more than her being German in her fate. first, Harry Berger, another German national in the group which came with Olga and Prestes to promote a Communist revolution, was prosecuted by the Brazilian courts alongside Prestes, instead of being expelled, like Olga. Second, as she Was pregnant with the revolutionary leader’s child, she had to be quickly removed from the national territory, before the baby was born and could serve gs a.reason for her campaign for her staying in Brazil. Therefore, the fact that she was pregnant of a national did not help her much. The absence of formal marriage was determinative for the Court to dodge the substantive matter. Since the presumption of paternity in the Civil Code could not be used, the Court ignored the facts historically later proved. However, a preliminary issue prevented the Supreme Court dirtying its hands with the stain of rejecting the claim, There was an état de siége, based upon the propagation of terror by the very government that had installed it. The Communist revolution had been beaten swiftly. ‘The right of expulsion of foreigners, which was already quite large, became unlimited. The authoritarian rules that were created after the Olga case took it into consideration, in order to remove the limits of government action and to extend government discretion to its extreme. Without adequate legal and jurisdictional means and with a certain dose of subservience or acquiescence of the regime,” the Supreme Court made a decision that reflected the spirit of its time. The effects are knowingly disastrous. [As the votes demonstrated, there was no commotion to Olga’s situation or the unborn child she carried, On the contrary, as ironically said justice Costa Manso, Olga and Anita figured it a benefit, liberty abroad... 8 In reality, the expulsion in this case turned into a death sentence: Olga was executed and Anita saved with high cost. Be ao 2 On Harry Berger alias Arthur Ewert, see ‘A, Counwno, BERGER, Harry, in Dicionrio Histbrico liogrifico Brasileiro pds 1930, ed. A. Aves De Asreu, Rio de Janeiro, 2010, ‘. A Costa, STF ,74. Corre Supneaa, Habeas Corpus n. 26.155, Acbrdao, 7.