## Facts

- Siegfried Ellwanger Castan, a writer and publisher associated with Revisão Editora Ltda., authored and circulated books denying the Holocaust and portraying Jews as inferior and dangerous.
- The publications included antisemitic propaganda and materials that endorsed Nazi beliefs, including calls for segregation and extermination of Jews, and encouraged readers to adopt those ideas.
- The Public Prosecutor’s Office of Rio Grande do Sul charged Ellwanger under Article 20 of Law 7.716/1989 (as amended by Law 8.081/1990), which criminalizes practicing, inducing, or inciting discrimination or prejudice based on race, color, ethnicity, religion, or national origin.
- Ellwanger was initially acquitted at first instance, but the Court of Justice of Rio Grande do Sul (TJ/RS) reversed and convicted him, treating the conduct as the statutory crime of racism.
- Ellwanger sought relief in the Superior Court of Justice (STJ), which maintained the conviction and imposed a custodial sentence (with suspended execution).
- Ellwanger then petitioned the Supreme Federal Court (STF) for habeas corpus (HC 82.424/RS), challenging the STJ decision and arguing that:
  - antisemitism against Jews is not “racism” for constitutional purposes, because Jews are not a “race” in a biological sense;
  - if the offense was not constitutional “racism,” ordinary limitation rules applied and the prosecution was prescribed (time-barred);
  - punishing the publications violated constitutional freedom of expression.

## Issues

1. Whether publishing and selling antisemitic, Holocaust-denying books that incite prejudice against Jews constitutes the crime of racism within the meaning of the Brazilian Constitution and Article 20 of Law 7.716/1989 (as amended).
2. Whether Ellwanger’s conviction for those publications violates constitutional protection for freedom of expression.
3. Whether, if the conduct is not treated as constitutional racism, the prosecution is barred by ordinary statutes of limitation.

## Decision

- The STF (Plenary) denied habeas corpus by a 7–3 vote, leaving Ellwanger’s conviction intact.
- The STF held that writing, editing, publishing, distributing, and selling works that advocate prejudiced and discriminatory ideas against the Jewish community fits the crime of racism under Article 20 of Law 7.716/1989 (as amended).
- The STF rejected a narrow, biological use of “race” and treated “racism” as a constitutional concept directed at combating exclusion and group subordination; on that reading, antisemitism qualifies as racism.
- Because the conduct was classified as racism under Article 5, XLII of the Constitution, the offense was non-bailable and imprescriptible, defeating the statute-of-limitations argument.
- The STF held that freedom of expression is limited by other constitutional values, including equality and human dignity, and does not shield speech that incites discrimination and prejudice against protected groups.
- Dissenting votes would have granted relief on grounds such as prescription (time bar) and/or lack of proof sufficient to sustain the conviction.

## Legal Principles

- “Racism” for Brazilian constitutional purposes is not confined to discredited biological categories; it includes forms of discrimination that target groups as socially constructed and historically persecuted.
- Antisemitic expression directed at Jews can constitute “racism” when it induces or incites discrimination or prejudice, bringing it within Article 20 of Law 7.716/1989 (as amended).
- Under Article 5, XLII of the Constitution, racism is non-bailable and imprescriptible; once conduct is classified as racism, ordinary limitation periods do not extinguish the state’s power to punish.
- Freedom of expression is not absolute and may be restricted where necessary to protect constitutional commitments to equality and human dignity, including through criminal sanctions for incitement to discrimination.
- Courts may read domestic constitutional and statutory protections against racism in light of Brazil’s broader commitments to oppose racial and religious discrimination.

## Conclusion

In HC 82.424 (2003), the STF denied Siegfried Ellwanger’s habeas corpus and upheld his conviction, ruling that publishing and distributing antisemitic, Holocaust-denying works that incite prejudice against Jews constitutes the crime of racism under Brazilian law; as such, the offense is non-bailable and imprescriptible, and freedom of expression does not bar criminal punishment for this form of discriminatory incitement.


Siegfried Ellwanger v. Superior Court of Justice, Habeas Corpus 82.424 (2003)