For those who dare to practice law
One of Brazil’s great lawyers, Dr. Sobral Pinto, once said that “lawyering is not a profession for cowards.”
In our land, there are those who dare to advocate in the true sense of this phrase.
The famous Olga Benário Case was decided by the Brazilian Supreme Court, (“Supremo Tribunal Federal” — “STF”), on June 17, 1936.
The decision is classified by the Court itself — correctly — as one of its historic judgments.
A communist militant of German and Jewish origin, Olga Benário was the wife of Luís Carlos Prestes, the leader of the Communist Uprising. She had been imprisoned for a few months. In prison, it was discovered that she was pregnant — “visibly pregnant,” in the words of Baron de Itararé.
Even so, the Brazilian government wanted to expel her to Nazi Germany.
What would Hitler’s forces do to a woman who, besides being Jewish, was a communist? What could happen to her pregnancy?
The government didn’t care.
According to journalist Fernando Morais, the Institute of Lawyers tried to appoint Dr. Dyonisio da Silveira to defend Olga from expulsion.
Dr. Dyonisio refused to accept the charge.
In our land, there are also lawyers like Dr. Dyonisio.
Olga Benário, who was also called Maria Prestes, formally expressed to the police her wish to be represented by the lawyer Heitor Lima.
Lima completely disagreed with Olga’s political ideology; Fernando Morais described him as “a liberal with no remote connection to the ideas of the rebels.”
That didn’t stop him from accepting the task on the very same day.
You, dear reader, need to understand the context of this attitude well.
These were very tough times, times of “authoritarian escalation,” in the words of famous historian Boris Fausto. Lima’s acceptance was, unquestionably, an act of great courage.
I will tell you how this story ends in a moment. But first, I invite you to read the acceptance letter he wrote on May 29, 1936.
In our land, there are also lawyers like Dr. Heitor.
“Rio de Janeiro, May 29, 1936.
Mr. Captain Affonso de Miranda Correia, Delegate of Political and Social Security.
The response to your official letter entails three orders of considerations.
Firstly, the conduct of the government facilitating the defense of those indicted for crimes against political and social order, when a State of War would facilitate, with appearances of legitimacy, the coercion of the right to defense, must be highlighted. I want to point out this fact, which satisfies the national legal conscience.
Secondly, if, except in very special cases, a lawyer cannot refuse his services to any accused, no matter how horrendous the crime attributed to them, there’s an even more imperative, urgent, and compulsory duty to assist when it concerns prisoners incommunicado, struck by general repudiation, in a situation conducive to the infringement of the formulas without whose observance all condemnation will be unfair, as it won’t represent the logical and legal deduction of free debates between prosecution and defense.
Moreover, in a period when lawyers aren’t granted immunities, refusing to represent someone would result in an act of cowardice.
Thirdly, and finally, it is a woman who invokes my name. This circumstance alone would be enough for me, true to the combative attitude for the mitigation of women’s misfortune on the face of the earth, and committed to redeeming, even if in a minimal portion, the crimes of male civilization against women — in which, as a man, I have my share of responsibility. Such a circumstance, I repeat, would suffice for me to heed the call. However, I read in the newspapers that the accused is preparing for the paramount event in a woman’s life: motherhood. This, therefore, enshrouds her with an aura that makes her, so to speak, sacred.
Whatever the risks of the task, I would confront them, dedicating myself to it as long as I find resources in the law for the fulfillment of my mission.
Greetings,
Heitor Lima.”
Olga was on the verge of being expelled. Heitor Lima had to act quickly. Three days after agreeing to defend her, he filed a Habeas Corpus with the Federal Supreme Court (STF).
Those were such difficult times that even the Habeas Corpus had been suspended.
A lawyer served, at that time, as Minister of Justice in the Vargas government. And he signed the suspension decree right after the president.
His name: Vicente Rao. A celebrated jurist.
Legal culture has many ambiguities.
In our land, there are also lawyers like Dr. Vicente.
Despite the suspension of such a fundamental guarantee, Lima made his best attempt. And adopted an ingenious strategy.
Instead of submitting a common Habeas Corpus, asking for his client’s freedom, Lima filed a Habeas Corpus for her to remain imprisoned.
The petition written by Heitor Lima reflects its time, as it couldn’t be otherwise.
As a legal text, it’s brilliant: well-constructed arguments, and the difficult balance between denouncing arbitrary acts with the emphasis they deserve and, at the same time, not being hostile to the authorities who could prevent his client’s expulsion.
Heitor Lima challenged the expulsion in various ways.
He emphasized that his client had been accused of “several crimes against the political and social order” that needed to be processed by the competent authority: the Judiciary.
The expulsion of “dangerous foreigners,” Lima argued, couldn’t be used as a means to allow someone to escape judicial proceedings in the country.
“Maria Prestes was arrested as a criminal, indicted in matters punished with great severity. The police, or the Ministry of Justice to which it is subordinate, makes no secret that against the patient they have gathered evidence of utmost importance, and they are sure of her conviction. If the police are not exaggerating, she will be convicted. But convicted by which authority? By the only one invested with the power to judge: the judicial authority.”
The lawyer also appealed to legal and moral reasons related to Olga Benário’s pregnancy.
He emphasized that the Decree on expulsions said nothing about the expulsion of a pregnant woman, and that this gap should not be interpreted against the accused.
He argued that the expulsion would be contrary to the individuality of the penalty, because it would punish both Olga and the being developing in her womb.
He invoked the legal protection of the unborn child and maternity.
He denounced the prison conditions.
And he strongly questioned the very basis of the expulsion process itself.
“Under art. 141 [of the Constitution], ‘support for motherhood and childhood is mandatory throughout the national territory…’. Expulsion during this delicate period for the life of the pregnant woman and the fetus, relocating an indigent woman in such a situation without a specific destination, would be equivalent to the most effective contribution to her death. […] How can one reconcile the constitutional text, which makes support for motherhood mandatory, with the expulsion decree, which now equates to the sacrifice of motherhood? Above all, the law that embodies a principle of humanity should prevail.”
“[I]f Mr. Getúlio Vargas were aware of Maria Prestes’ situation in prison, he would order immediate measures to change the inhumane regime to which she is subjected, with no benefit to public order and national security. The inadequacy and lack of food; the lack of hygienic care, especially important for a pregnant woman; the prohibition of any reading, whether book or newspaper, which is a real torture for an educated woman — all these and other torments have already reduced Maria Prestes’ weight by twelve kilograms. Doesn’t this constitute a criminal abortion provocation? It is not believable that these atrocities are the responsibility of Dr. Aloysio Neiva, director of the establishment. Anyone who knows his compassionate heart would not insult him by blaming him for a criminal abortion in the Detention House. When, in the comfort of his happy home, he has a moment to think about others’ misfortunes, let Dr. Aloysio Neiva remember that […] a few steps away, a woman suffers, whose life is now centered on the being whose heart already beats within her, and who is entitled to double respect: the one due to the woman who is going to be a mother, and the one due to the most unfortunate of mothers.”
“The esteemed Supreme Court, of course, will not judge the convenience or opportunity of the coercive measure threatening the patient: it will only examine it from the angle of legality, or constitutionality. In the expulsion process, there are only three statements from police investigators, heard in the absence of the accused; the investigators merely inform that at the Political Security Police Station, the deportee is considered an agitator, and that’s why they claim she is a threat to national security. Nothing more. Wouldn’t a pure and simple expulsion decree be preferable, without this simulation of respect for legal formulas? What remains of the constitutional provision ensuring a full defense?”
“If the habeas corpus is granted, what will happen? The patient will remain precise and incommunicado. The investigation in which the police see strong elements for conviction will continue. The judiciary, taking note of the evidence that the police claim is irrefutable against the patient, will convict her. Thus, Maria Prestes will be left in a state where she can do nothing harmful to public order.”
Upon receiving the petition, the reporting Justice requested information on the expulsion process.
In his reply, Vicente Rao, the Minister of Justice, was succinct.
He stated that Olga Benário “is at the disposal of this Ministry to be expelled from the national territory, as she is a dangerous element to public order and harmful to the country’s interests.”
And he recalled that the guarantee of habeas corpus was suspended “due to national security needs.”
Two days later, on June 17, 1936, the Brazilian Supreme Court made a decision on the Habeas Corpus.
The decision?
“Having seen, reported, and discussed this writ of habeas corpus filed by Dr. Heitor Lima on behalf of Maria Prestes, who is currently held at the Detention House, for the purpose of being expelled from the national territory as dangerous to public order and harmful to the interests of the country.
The Supreme Court, refusing not only the request for the files of the respective administrative process but also the patient’s appearance and the medical examination to determine her alleged pregnancy, and
Considering that the same patient is a foreigner and her stay in the country compromises national security, as inferred from the information provided by the Honorable Minister of Justice;
Considering that in such cases there is no way to invoke the constitutional guarantee of habeas corpus, in view of the provisions of article 2 of decree no. 702, dated March 21 of this year;
They agree, by majority, not to take notice of the request.
Costs by the applicant.
Supreme Court, June 17, 1936.
E. Lins, President. — Bento de Faria, Reporting Justice.
DECISION
As recorded in the minutes the decision was as follows: The majority did not take notice of the request; Justices Carlos Maximiliano, Carvalho Mourão, and Eduardo Espinola considered the request admisible, yet unfounded.”
After the defeat in the Supreme Court, Heitor Lima made one last attempt: an appeal to the conscience of Mrs. Darcy Vargas, wife of Getúlio.
It didn’t work.
Olga Benário was expelled to Nazi Germany.
Vicente Rao, along with President Getúlio Vargas, signed the expulsion order.
In Germany, she was imprisoned in a Gestapo jail, the Nazi police.
There, she gave birth to her daughter, Anita Prestes, with whom she stayed until the end of the breastfeeding period.
Pressures from an international campaign led to little Anita being handed over to her grandmother, Dona Leocádia.
Benário remained in prison.
She was transferred to the Lichtenburg concentration camp, then to the Ravensbrück concentration camp.
In 1942, she was sent to her final destination: the extermination camp in Bernburg.
The Nazis executed her in a gas chamber.
She was 34 years old.
In the Habeas Corpus, Heitor Lima had asked that the court fees be relieved because his client had no resources.
His words, written before the trial, show his full — and prophetic — awareness of the historical importance of that process:
“The dress she wears today is the same one she wore when she was arrested; and the little money, valuables, and clothes that the police seized at her residence have not been returned to this day.”
“If male justice, even when exercised by a conscience of the finest quality, like the illustrious president of the Supreme Court, hinders the defense of an imprisoned woman without resources, then the history of Brazilian civilization should not include in its judicial annals this stain: the condemnation of a woman without a man speaking on her behalf in the Palace of Law. The applicant will cover the trial costs.”
In 1998, then-President of the STF, the Brazilian Supreme Court, Mr. Celso de Mello, stated that the Court was wrong in the judgment of Habeas Corpus 26155:
“The STF made mistakes, this was one of them because it allowed a person to be handed over to a totalitarian regime like the Nazis, a pregnant woman.”
The life of Olga Benário, like any other human life, has an intrinsic value that was not respected. The fact that Anita survived does not change the circumstances in which the decision was made. The Court completely disregarded the pregnancy. The decision ignored all the reasons presented by the lawyer Heitor Lima. And all his requests, including a request for an examination of the pregnancy status.
The Justices did all this with the asepsis of legal language.
“Having seen, reported, and discussed this writ of habeas corpus…” “They agree, by majority, not to take notice of the request.” “Costs by the applicant.”
You must know this: Law is a tool. Much like a hammer, it can be used to build houses, to build bridges. And it can be used to hammer nails into living flesh, to destroy, to disfigure.
If you dare to practice law, I hope you use it for the best.
I hope you know how to do this even when… I hope you know how to do it especially when an arbitrary power wants the opposite.
And I hope that you can give humanity the victory that our colleague Heitor Lima righteously merited.
Sources:
- Boris Fausto. História do Brasil. 12 ed. São Paulo: EdUSP, 2006.
- Fernando Morais. Olga. São Paulo: Companhia das Letras, 1994.
- Habeas Corpus №26155, 3 de junho a 17 de junho de 1936 (Processo Integral).
- Pedro Paulo Filho. Grandes advogados, grandes julgamentos (no júri e noutros tribunais). São Paulo: OAB, 1989.
- Wikipedia, “Olga Benário Prestes”.
