Criminalização Burocrática: estratégias político-jurídicas, neoliberalismo e a atuação das organizações da sociedade civil.

Bureaucratic Criminalization political-legal strategies, neoliberalism and the procedure of civil society organizations Bureaucratic Criminalization political-legal strategies, neoliberalism and the procedure of civil society organizations Text research and elaboration: Daniel Souza and Helena Duarte Interviews: Anna Pedra Data collect: Carlos Henrique Camargo Silva, Fabio Barcelos de Oliveira, Lucas Modesto Dantas e Silva, Raphaela da Silva Correa and Yanka Greco Guimarães Analysis of statistical data: Rafael Costa Project Design: Caio Sertório Editorial Coordination: Patricia França This document was prepared with the exclusive participation of Abong – Brazilian Association of NGOs, and under no circumstances can it be considered that it reflects the position of Cáritas Brasileira and ELO. bureaucratic criminalization Nowadays, due to the lack of a democratic political public sphere, in which agonistic confrontation could take place, it is the legal system that is often seen as responsible for organizing human coexistence and for regulating social relations. Faced with the growing impossibility of facing society’s problem in a political way, it is the law that is used to provide solutions for all types of conflict. (MOUFFE, Chantal, 2003, p. 18) bureaucratic criminalization Structure 1 2 3 4 5 6 bureaucratic criminalization What is desired with this work? p. 6 What is the reporting methodology? p. 8 What is the definition of “bureaucratic criminalization”? p. 10 What do we systematize? p. 23 a. Civil society and democratic “suffocation” p. 23 b. MROSC, reporting and accountability p. 34 c. Taxation and banks p. 44 d. The gestures of surveillance and control p. 56 e. Defamation as a political strategy p. 59 f. Financing and the havings p. 64 g. Subjectivity and the criminalization of organizations p. 70 What do we recommend? p. 75 What are the references? p. 77 6 What is desired with this work? Since 2020, the Associação Brasileira de Organizações Não Governamentais – Abong develops a legal working group (legal WQ) for assistance, monitoring and advocacy in the face of violations of the rights of civil society organizations (CSOs). To enhance this action, a research project was created to identify the main axes of non-compliance with rights that CSOs have been facing during the three years of Bolsonaro’s government (2019-2021). Since the beginning of the current government in January 2019, its authoritarian bias has been a constant threat to historically underrepresented populations, such as women, blacks, indigenous people and LGBTQIA+. The scenario has also become increasingly hostile to the activities of civil society organizations. In addition to Law Projects, which represent a setback to historically defended fundamental rights, organizations have been the target of several measures at the administrative level that aim to make it difficult to raise funds, impose undue payments or even raise questions about partnerships. There are several examples of bureaucratic and tax criminalization. One of them is the collection of TTCMD (Transmission Tax Cause Mortis and Donation) on international donations, even without complementary legislation on the subject, as provided for in the Federal Constitution itself. Or even, questioning the accountability of partnerships in disagreement with the Regulatory Framework for Civil bureaucratic criminalization. Society Organizations (Law 13.019/2014). In addition to Provisional Measure 870/2019 sent to Congress, which had as one of its intentions to determine to the Government Secretariat of the Presidency of the Republic the supervision, coordination, monitoring and follow-up of non-governmental organizations. 7 This report, as part of Abong’s larger project, takes bureaucratic criminalization as its center of analysis and investigation. In this way, we present here a part of the activity that Abong’s Legal WG develops, contributing to a global analysis of violations of rights of CSOs and activists. However, in addition to a diagnosis of the processes of non-compliance with rights, this work is also presented as a tool for action and political advocacy. Understanding the plots and legal-political arrangements that take place in the neoliberal state and in financial institutions, for example, can favor the creation of more articulated strategies in the search for guaranteeing full democracy and social participation. bureaucratic criminalization. 8 What is the reporting methodology? 1. The following organizations participated in the focus group on December 15, 2021, via the online platform (Zoom): Grupo Mulher Maravilha, Brasil Saúde e Ação and Thydewa. 2. “The Platform for a New Regulatory Framework for Civil Society Organizations is made up of entities representing the most varied fronts and segments that bring together organizations that work, for example, in the solidarity economy, in the promotion and defense of rights, in private social investment and social responsibility and in traditional areas such as health, education and social assistance whether community-based, religious or business” (ENAP, 2019, p. 5). 3. The interviews were carried out, via the online platform (Zoom), with the following organizations and movements: […] bureaucratic criminalization. This research combined a qualitative and a quantitative approach. For the first one, a focus group was held 1 (December/2021) with organizations accompanied by Abong’s legal advisors and that presented any case of bureaucratic criminalization. In addition, interviews were also carried out (December/2021 to February/2022) with 11 other organizations and social movements that integrate or are in dialogue with the Platform for a New Regulatory Framework for Civil 2 Society Organizations and that did not necessarily receive this support. 3 The Choice was made based on three factors: ⚫ the multiplicity of guidelines and incidence in guaranteeing rights; ⚫ territorial and regional diversity; ⚫ the constitution of the organizations themselves (with or without legal personality, affiliated and unaffiliated with Abong, financing entities and direct executors of projects). The questions that mobilized the focus group and the interviews were divided into three blocks: presentation and sharing of the organizations’ work; the relations between civil society, the State and the financial sector; and the processes of bureaucratic criminalization. 9 […] Instituto Pólis, Movimento dos Trabalhadores e Trabalhadoras Sem Terra – MST, WWF Brasil, Criola, Instituto Socioambiental – ISA, Grupo de Institutos, Fundações e Empresas – GIFE, Ação Educativa, Coordenadoria Ecumênica de Serviço – CESE, Fundação Luterana de Diaconia/Conselho de Missão entre Povos Indígenas/Centro de Apoio e Promoção da Agroecologia – FLDComin-CAPA, Fundação Tide Setúbal, Pacto pela Democracia. 4. In this research, we worked with a sample of 135 responses (n=135) to the questionnaire. We consider that entry in which at least one answer to the following questions was filled in: Q3, Q5, Q5.1, Q15, Q16, Q16.1, Q18, Q22, Q24, Q26, Q28 ou Q31. The quantitative mode of the report was linked to the constitution of the survey on the Profile of civil society organizations, also prepared by Abong with a focus on its affiliated organizations during the period of 4 November 2021 and January 2022 . Some charts, resulting from this query, will be used in the report text. The questionnaire that was made available had emphases related to tax collection, whether at the federal, state or municipal level; to some State procedure that did not follow the Regulatory Framework for CSOs (law 13.019/2014); to any undue questioning in relation to accountability in the partnership with the government; defamation, slander or injury by any public or private entity; and relations with banking institutions. With the survey carried out and in dialogue with other studies, research and theoretical frameworks, we built (i) a conceptual argumentation of what is bureaucratic criminalization (read within the relationship between neoliberalism and the security state); (ii) we organize the systematization in some features that favor the diagnosis of the mode of operation of this criminalization; and (iii) we indicate some provisional recommendations to face these dynamics in the public and private spheres. Finally, it is important to point out that the legal processes analyzed, together with the decisions of the public power and the political resistance, do not intend to cover all the problems of criminalization and violation of the rights of CSOs. The cases discussed here were selected by citations in the focus group and/or in the interviews. bureaucratic criminalization. What is the definition of “bureaucratic criminalization”? 10 The concepts emerge as a way of understanding a certain dynamic and lived phenomenon. They are means of reading and solving a given problem or, at least, rehearsing responses to it. G. Deleuze & F. Guattari, for example, state that “there is no simple concept. Every concept has components, and is defined by them. So there’s a number. It is a multiplicity […]. The concept is [a] matter of articulation, cutting and superimposition” (DELEUZE & GUATTARI, 2010, p. 23). The creation and use of a given concept are linked to a certain practical-theoretical decision resulting from multiple factors: methodological commitments, epistemic links, worldviews, alliances and agreements in a given knowledge production community, among others. For example, the term “bureaucratic criminalization” was used by the Platform for a New Regulatory Framework for Civil Society Organizations in 2010. According to Laís Lopes, Paula Storto and Stella Reicher, the use of this notion happens to designate a phenomenon “that is materialized especially through the administrative-bureaucratic path and through the entanglement in countless procedures, which often drain the institutional capacities of CSOs and materialize in the form of tax or administrative liabilities” (LOPES, STORTO & REICHER, 2019, p. 72). bureaucratic criminalization. Criminalization, therefore, materializes 11 “in the unequal, non-isonomic treatment of CSOs in relation to other types of legal entity, through the same standards that institutional prejudice manifests itself in relation to other vulnerable groups in our society” (LOPES, STORTO & REICHER, 2019, p. 72). In the table below, the authors systematize the characteristics of this institutional violence and help us to find a certain framework for reading the problem: Table 1 Main characteristics of violence and institutional prejudice. Source: (LOPES, STORTO & REICHER, 2019, p. 73). bureaucratic criminalization. Table 1 Practiced by institutions Main characteristics of violence and institutional prejudice Perpetrated by the institutions that provide public services and by agents who should protect the rights of users of the services. It can also occur in private companies and other institutions. Disregards intentionality One of the important elements of studies on institutional prejudice is the lack of interest in the intentionality of the act of individuals or institutions that practice it. Public institutions, as a rule, reject its conscious intentional practice, but do not deny the existence of the phenomenon. Once specific cases and situations have been identified, it is possible to subsidize proposals for changing norms, practices and procedures in the structuring of public policies and the Public Administration itself in order to remove the criminalizing norm or practice. Reveals material inequality in the treatment of constitutionally protected subjects Institutional bias accentuates discrimination against constitutionally protected groups, although disadvantaged. In practice, it can be identified by situations of discriminatory, non-isonomic treatment; by pilgrimage through different agencies or services until receiving adequate care; for lack of listening; for excessive waiting time; among others. Inequality in treatment is confirmed by data that show how these subjects of law systematically do not receive the service or care in an equal way to other groups, notably those who represent the dominant forces and holders of power structures. 12 Identifiable in specific cases Institutional prejudice can be embedded in management decisions, organizational norms, disciplinary measures, laws and other expedients that denote discrimination resulting from unconscious prejudice, misinformation, lack of attention, application of prejudiced stereotypes. It can be detected in the speeches of managers, State representatives, employees and servants of public and private institutions. It may be present, in a more or less veiled way, in pre-established decisions, opinions, references, attitudes and behaviors that promote or reinforce inequalities. This delimitation understands that the gesture of institutional violence is carried out, if we think from the public’s point of view, by “institutions that should protect the rights of users”. A failure to fulfill your destinations and intentions. In a process of denaturalization of uses, protocols and gestures, a highlight is the recognition of the intentionality of individuals and institutions in deciding to act in this way. An operation that only reinforces “the discrimination of groups that are constitutionally protected, although disadvantaged”. There is not, here, a policy of reducing inequalities, but an expansion. A strategy that criminalizes individuals, organizations and social movements through bureaucratic and administrative games, which occur, for example, “due to pilgrimages to different bodies or services”, “due to lack of listening”, “due to excessive waiting time”. A case that summarizes this experience was mentioned in one of the speeches of the grupo focal: Interview A Grupo Focal. bureaucratic criminalization. I think it may seem very subtle, but it was something that caused us pain… Once we were in a process of accountability with the Ministry of Culture and, due to a problem with the process, we left the position of qualified for defaulters [ …]. It was very sad to hear even the supposed person who was in public office saying that she recognizes that it is a mistake of her team, that soon, we will soon leave this position. But the organization spent six months with a “spot”. I don’t remember if there was any specific problem, if we lost any money. But it’s horrible to know that it was a mistake… It’s happened that I go to account for the project, there’s no answer, there’s no answer, and the Ministry pays me a trip to Brasília. I thought it was going to be a conversation, but no, you hear: “we lost all the documents, let’s see how we solve it” (A, grupo focal). 13 Let’s go back to a term presented in the table that favors the argument that we are building in this report: “management decisions”, related to “organizational rules, disciplinary measures, laws and other expedients that denote discrimination”. This intentionality can be seen in the interview excerpt below: Interview n°3. bureaucratic criminalization. Another very difficult relationship was with the TARE, assistance projects, so-called “technical assistance and rural extension”. During the execution of the project, the ministry simply decided to add, add down the project, reduce resources and did not reduce activities with the beneficiary public. And contracts, tax contracts, that no matter how much we question the contract, there is nothing we can do. There’s nothing to do. It’s a political decision. Are we going to continue with this contract, with this agreement, or not? There, internally, we are also vulnerable. Because, finally, the public are there, they want the project to be renewed. But from the administrative-financialpolitical point of view, the stress and the risk are enormous, in the accountability, in the closing of the project (interview 3). 14 There is, therefore, a distrust in relation to civil society organizations, another trait of institutional violence that is shown in mechanisms of criminalization. This does not guarantee a favorable environment for full social participation, for transparency in the application and use of public resources, for the effectiveness in the execution of projects and for the possibility of innovation of social Technologies. (ENAP, 2019, p. 5). Bureaucratic criminalization, according to the document of the Escola Nacional de Administração Pública (ENAP), elaborated by Laís Lopes, happens “mainly due to the absence of clear and proper rules” (ENAP, 2019, p. 14). The Regulatory Framework for Civil Society Organizations emerges as a way of overcoming this reality, in which its main advance was to create a “specific legal regime for partnerships between the State and civil society organizations” (ENAP, 2019, p. 14). The scenario of “legal insecurity” also puts organizations in a context in which the “specificities of non-profit private entities” are not recognized and do not offer “mechanisms for transparency and control of the application of public resources” (ENAP, 2019, p. 15). bureaucratic criminalization. However, some considerations help us to broaden the discussion beyond the criminalization-legal framework binomial. The creation and use of a certain concept is not necessarily a quick mobilization and with very precise definitions. Deleuze & Guattari again indicate that concepts are: 15 “vibration centers, each in itself and in relation to each other. That’s why everything resonates, instead of following or corresponding” (DELEUZE & GUATTARI, 2010, p. 23). Although it is desired, it is not so simple to delimit in a “clear and distinct” way a certain notion. Sometimes, the meaning assumed in the formulation of a certain term is escaped, expanded and modified. In one of the speeches present in the research, we indicate a problem about the definition of what “bureaucratic criminalization” is: Interview n°1. “from the point of view of the narratives, [bureaucratic criminalization] seems much clearer, but from the normative, legal, bureaucratic, we still have many doubts” (interview 1). Discursiveness and operativity are linked. The difficulty in delimiting the mode of action is a result of the very object of our investigation. Legal and bureaucratic arrangements work to create processes for determining what is or is not allowed. But that’s not necessarily its strength. Who and what determines an “inside” and an “outside” of normality and normativity has the possibility, even more sophisticated and nebulous, of creating a “zone of indeterminacy” between the legal norm and the exception to the norm. bureaucratic criminalization. It is as if the concept helped us to understand the non-compliance and violations of the rights of CSOs, but, at the same time, the institutional practice “staggered” between the inside and the outside of normality, escaping the conceptual and procedural security that is so desired. 16 Interview n°2. “The point is that this always puts us in a situation of insecurity”, says one of the people interviewed (interview 2). A consideration that is not isolated, but that permeates all the interviews, the dialogues in the focus group and the process of creating the Regulatory Framework. Words such as uncertainty, doubt, risk and distrust mark the impressions of people and their organizations, something that makes the understanding that we want to build in this work about bureaucratic criminalization even more complex. For this reason, an important consideration to be made is that this concept needs to be read from another notion: the State of exception. Giorgio Agamben indicates that “the state of exception is not, therefore, the chaos that precedes order, but the situation that results from its suspension. […] The exception is caught out and not simply deleted” (AGAMBEN, 2004, p. 25). The law (norm) presupposes the outside. The mode of operation is as follows: “it is not the exception that is subtracted from the rule, but the rule that, by suspending itself, gives rise to the exception and only in this way does it constitute itself as a rule, maintaining itself in relation to that one” (AGAMBEN, 2004, p. 26). bureaucratic criminalization. Thus, the legal system takes place from the exception, which is placed as the threshold between what is external and what is internal to the legal instrument. This is a possibility of reading that would not necessarily fit into the opposition between State of law versus State of exception. 17 In this characteristic of “deciding to act”, we have the following narrative: Interview n°4. “how are we going to act now, because we are no longer in the democratic state of law. So as an organization, how are we going to act?” (interview 4). One of the ways of reading this problem is the rescue or guarantee of legal frameworks. However, in the critical state of the law itself and its function in the governmental machine, read by Agamben, we can understand this speech in another way. Through the law, the sovereign will (the decision) suspends the law to use prerogatives and decree the abandonment of the administrative framework. For this reason, Giorgio Agamben says: the State “no longer appears as a threshold that guarantees the articulation between an inside and an outside, between anomie and the legal context by virtue of a law that is in force in its suspension: it is, rather, a zone of absolute indeterminacy […], in which the sphere of creation and the legal order are dragged into the same catastrophe” (AGAMBEN, 2004, p. 87;89). bureaucratic criminalization. Therefore, bureaucratic criminalization is a symptom of the State’s own mode of operation. It is not a mere disorder or breach of a right. The modern State is a State of exception and finds, in administrativebureaucratic processes, a means of executing/ suspending the law, creating the indeterminacy between permitted and not permitted. This strategy is related to another notion: the security state. 18 In order for the arguments constructed here to make sense, it is necessary to rescue an emblematic date: September 11, 2001. The same Giorgio Agamben seeks to analyze Europe based on the notion of security coined from this date. There is, from the imaginary of terrorism built at that time, another security perspective, “a security paradigm” that organizes the State and modern politics, inscribed in the history and origin of the “State of exception”. This paradigm “implies that each dissent, each more or less violent attempt to overthrow its order, creates an opportunity to govern it in a profitable direction. This is evident in the dialectic that links terrorism and the state in an endless vicious spiral” (AGAMBEN, 2013). Why establish this link between the object of study of this report and this concept? The gap for interpretation appears in a footnote to the article by Laís Lopes, Paula Storto and Stella Reicher: “The existence of more repressive norms for combating terrorism in the post-September 11, 2001, is pointed out as one of the factors responsible for the emergence of an institutional environment less favorable to the development of CSOs in several countries in recent years” (LOPES, STORTO & REICHER, 2019, p. 71). bureaucratic criminalization. 19 5. More than 80 entities and personalities linked to social movements and civil society organizations signed a manifesto against the approval of this law. In one of the passages, it is written: “Democracy is made by the vote and the direct participation of the people. This participation is also due to militancy in social movements. Countless militants, however, were and are being, through their […] In 2014, we have the sanction of the Regulatory Framework for Civil Society Organizations (Law 13.019/2014), the result of a lot of advocacy and political articulation and a way of creating a parameter for partnerships between the State and civil society. But in this same period, we also have the sending of the project, by the Executive, of the Anti-terror 5 Law (13.260/2016) , also sanctioned by President Dilma. If the first, as a narrative of the organizations themselves, is approved with the intention of facing the criminalization of CSOs, the second is based on the antithesis of the first, the criminalization of civil society organizations, social movements and activism. Could it be that in both, in their particularities and distinctions, do we not have administrative arrangements to determine an ideal type of political action and social participation? Something that was signaled, in its own way, in the following excerpt from the interview: Interview n°5. […] daily struggles, unfairly framed in criminal types such as disobedience, gang, robbery, damage, contempt, among others, in total disagreement with the democratic principle proposed by the 1988 Constitution. The proposal increases this segregationist Penal State, which works, in practice, as a mechanism to contain democratic social struggles and selective elimination of a class of […] bureaucratic criminalization. 6 Looking at access to public resources , this scarcity that comes from the dismantling of public policies is an even greater difficulty, because it was never easy for us to access these public notices either. We have an understanding that historically there has always been an option even to privilege civil society organizations that are not directly linked to the movements, it is an additional bureaucratic requirement that makes it very difficult. Another strong and important aspect of fundraising: […] international fundraising, whether through agencies, NGOs , and including these international funds, in the last period we had very complex and super-demarcated situations, such as issues that are a milestone even at the beginning of the Bolsonaro government and the beginning of the problems that we have been facing (interview 5). 20 […] the Brazilian population. The enemy that is sought to be fought for certain Brazilian conservative sectors, which continue to influence the Executive, Legislative and Judiciary Powers, is internal, focusing, above all, on popular movements that demand profound changes in Brazilian society. Furthermore, combating terrorism itself is not a Brazilian necessity. Depredation, homicide, use of explosives, etc., are already crimes in Brazil. The creation of a specific figure does respond to external pressures, especially from the United States and other OECD countries, which take into account very different realities from ours, without any history of episodes that resemble terrorism” (DHESCA, 2015). 6. The expression Non-Governmental Organization (NGO) does not correspond to a legal nature. The term emerged in the 1950s and was used by the United Nations (UN) to designate civil society institutions not linked to the business or state sector. In Brazil, several entities fought for its recognition and since Law 13.019/2019 (Regulatory Framework for Civil […] bureaucratic criminalization. Finally, another important consideration to be made is about bureaucratic criminalization and neoliberalism. If social from Pier and Christian Laval to a political system is not a thinker of all relations with neoliberalism only, but is “economic, extending its influence to the whole world, expanding its influence and its social influence, extending its influence of social life” (DARDOT & LAVAL, 2016, p. 7). In this approach, we find an intense articulation between the neoliberal mode and the State, not as an opposition, but as a symbiosis. The security state and its profitability strategies are effectively neoliberal. And this process affects the foundations of liberal democracy as we know it, because, as these authors state, “the new rationality promotes its own validation criteria, which have nothing to do with the moral and legal principles of liberal democracy” (DARDOT & LAVAL, 2016, p. 382). We see in this “undemocratic” grammar, marked by “management” and “good governance” of the public and citizenship, with the logic of deep competition, a: Dilution of public law in favor of private law, conformation of public action to the criteria of profitability and productivity, symbolic depreciation of the law as an act of the Legislature, strengthening of the Executive, valorization of procedures, tendency of police powers to exempt themselves from all judicial control, promotion of the “citizen-consumer” charged with arbitrating between competing “political offers”, all are proven trends that show the exhaustion of liberal democracy as a political norm (DARDOT & LAVAL, 2016, p. 380). 21 […] Society Organizations) the legal term Civil Society Organization (CSO) has been legitimized, which encompasses NGOs, entities, organizations and institutions. There is another important difference related to the political sense of action: there are organizations that define themselves as belonging to the so-called third sector, and there are those, belonging to the field that Abong is a part of, that “fight against all forms of discrimination, inequalities, for the construction of sustainable ways of life and for the radicalization of democracy” (https:// outraspalavras.net/ mercadovsdemocracia/asongs-e-a-multiplicidadeda-sociedade-civil/). Abong was an active party in this process, so we always use the legal term CSO. The exceptions in this report for the use of the term NGOs occur only in the transcripts of the interviews in which the expression appeared in the speeches of the organizations heard. Interview n°6. bureaucratic criminalization. Bureaucratic criminalization is thus presented as a feature of this neoliberal state, a “business government”. In this way, the “company state” is subject to efficiency requirements similar to those to which private companies are subject” (DARDOT & LAVAL, 2016, p. 273). But what interests us most is the restructuring of this State in the scenario of the ruin of a liberal democracy, namely: to the outside, we have “massive privatizations of public companies that put an end to the ‘producing State’”; inside, an “evaluating and regulating State is presented, which mobilizes new instruments of power and, with them, structures new relations between government and social subjects” (DARDOT & LAVAL, 2016, p. 273). Here is the process of constitution of relations between the governmental machine and civil society organizations, adjusted to the scenario of “productivity” and “effectiveness”. The act of criminalizing or allowing certain political practices and actions is related to this neoliberal rationality, in its operativeness in the face of dissent and bodies, populations and territories seen as deviant from the logic. Let’s see below a consideration about “efficiency” and the processes of competition and good application between “invested” value and project “execution” time: Today, for example, I would have the most accurate idea that, first, always the work plan of the organization that must be in force, and not a proposal that the government wants to invest in and is hiring us, and evaluating us as an employee who made a mistake, that did not comply. But that’s the first question. The second question is the type of investment. As far as the State wants to lose resources by investing in civil society participation and organization, because organizations that will be able to develop a job very quickly, their own work is a job they want in a timely manner, fulfilling all these steps, but there are others that do not go (interview 6). 22 Finally, in a conceptual delimitation, we see that bureaucratic criminalization is the result of a relationship between the State (security and exception) with the “neoliberal reason” – and it happens through procedural and administrative arrangements. This consideration shows us the complexity to face this problem, far beyond a mere constitution or readjustment of legal frameworks, although we recognize its importance and legitimacy. We are facing a symptom of a broad process of democratic deconstruction. For this reason, the State-enterprise and its “management reform of public action” undermines the “democratic logic of social citizenship”, reinforces “social inequalities in the distribution of aid and access to resources” and produces a “growing number of ‘ sub-citizens’ and non-citizens” (DARDOT & LAVAL, 2016, p. 381). bureaucratic criminalization. 23 What do we systematize? We organize below some features of the bureaucratic criminalization process. a. Civil society and democratic “suffocation” Civil society organizations are the result of the constitutional right to freedom of association (article 5, XVII of the Federal Constitution) and play a fundamental role for democracy, acting in the defense of human rights, the rights of groups historically in the process of exclusion. In addition, CSOs play an important role in the formulation, monitoring and evaluation of public policies and in the defense of freedoms. For this task, it is of fundamental importance to have Interview n°7. “a free, autonomous, engaged civil society that actually participates in political processes, that exercises its role of social control. This is the basis of any democratic society” (Interview 7). Since the beginning of the Jair Bolsonaro government, what has been observed is an increase in distrust in the field of organized civil society. Not that this movement did not exist before, as can be seen in the first Parliamentary Commission of Inquiry (PCI) of NonGovernmental Organizations (NGOs), which took place in 2001. bureaucratic criminalization. However, in recent years, there has been an escalation in attempts to criminalize CSOs, with draft laws and other legal measures aimed at controlling and restricting the scope of action of these organizations. Let us also think about the post-2016 scenario, the year of the legal-parliamentary coup against President Dilma Rousseff. 24 In the interviews, we also found this date as an important marker for the processes of “suffocating” the political action of activists, civil society organizations and social movements. It is also worth mentioning, in this same movement, the murder of councilwoman Marielle Franco, who still does not have her voters named and held accountable. By specifically observing the modes of social participation and democratic strengthening in the face of the current Federal Government, we have a symbolic and fundamental fact for this study. On the first day of the Bolsonaro government, Provisional Measure 870/2019 was edited, which assigned a new organization to the Presidency of the Republic and the Ministries. Among the changes promoted by PM 870, there were: assigning to the Government Secretariat of the Presidency of the Republic the competence to “supervise, coordinate, monitor and accompany the activities and actions of international organizations and non-governmental organizations in the national territory” ( provided for in article 5, II of PM 870). bureaucratic criminalization. The text represented a direct affront to the Constitution, which guarantees freedom of association and prohibits state interference in its functioning, in addition to being a form of surveillance, especially for those CSOs critical of the current government’s policies. The Provisional Measure was the target of several protests and hundreds of civil society organizations mobilized pressure on the National Congress and followed the process in the legislative houses. 25 The Mixed Commission of the National Congress (PVL 10/2019) responded to the demands of civil society and proposed an alternative wording to the article, removing the provisions of “monitoring and supervision” and changing them to “coordination and dialogue with the government”. Even with the alternative wording approved by the two Legislative Houses, the article was vetoed by the president. Despite the veto, there was a victory. PM 870 was transformed into Ordinary Law No. 13,844/2019, with the removal of the competence of the Government Secretariat of the Presidency to control and intervene in CSOs. 7. On this scenario, check the Abong Note denouncing the intervention of the federal government in the National Human Rights Council, available at: https:// abong.org.br/2019/08/29/ sociedade-civil-denunciaintervencao-no-conselhonacional-de-direitoshumanos/. 8. One example, among others, was the work carried out in relation to the National Youth Council. Information can be found here: https:// www.brasildefato.com. br/2017/05/17/sociedadecivil-perde-espaco-nogoverno-temer-apontampesquisadores. bureaucratic criminalization. Another process that marks this relationship between government and civil society is the dissolution, 7 alteration or institutional weakening of the Social Participation Councils, something also very punctuated in the dialogues carried out with the organizations. Let us remember, however, that the strategy of weakening these spaces was also a way of acting in Michel 8 Temer’s administration . Specifically regarding the current government, this strategy takes place via Decree 9,759/2019, which determined the extinction of all councils, committees, commissions, groups and other types of collegiate linked to public administration that were established by previous decrees or normative acts, including some mentioned in laws that did not detail the powers and composition of Organs collegiate bodies. 26 9. The Joint Parliamentary Front in Defense of CSOs is composed of the general coordinator, Federal Deputy Afonso Florence (PT/BA), sub-coordinators Nilto Tatto and Senator Pimentel, Deputy Eduardo Barbosa, as 1st Secretary General, and Deputy Lídice da Mata, as 2nd general secretary. The Front has an Advisory Board made up of eight civil society organizations: Cáritas Brasileira, Visão Mundial, Associação Brasileira de Captadores de Recursos (ABCR), Coordenadoria Ecumênica de Serviço (Cese), Associação Brasileira de ONGs e Casa da Mulher Trabalhadora (Abong/Camtra), Grupo de Institutos Fundações e Empresas (Gife), União Nacional das Organizações Cooperativistas Solidárias (Unicopas) and Fundação Grupo Esquel do Brasil (FGEB). The Decree had the objective of reducing the participation of civil society in the elaboration, evaluation and monitoring of public policies and in the guarantee of rights. Despite the lack of clarity and the non-existence of an official list of which bodies would be covered by the Decree, the survey carried out by the Attorney General’s Office (AGO) indicated that about 700 collegiate bodies would be extinguished. Civil society reacted to this Decree and the Partido dos Trabalhadores (PT) filed the Direct Action of Unconstitutionality (DAU) 6121 in the Federal Supreme Court (FSC). At the trial, in June 2019, the ministers decided to only partially suspend the measure of President Jair Bolsonaro, so that the collegiate bodies provided for by law or created by decrees, and mentioned in a later law, could not be extinguished. At the same time, according to the FSC, there was no impediment to the extinction of the collegiate bodies created by decrees or other infra-legal normative acts. It is worth noting that, as a way of resisting these processes, the Joint Parliamentary Front in Defense of CSOs was created on September 10, 2019, composed of deputies, senators and an Advisory Council with 9 eight civil society organizations . Since then, the Front has been defending the basic right of free association and social participation. In the interviews, we also found other attempts to criminalize civil society, as happened with the BNDES’ Amazon Fund, in which organizations that had a current contract (2019) began to receive new requirements for the release of installments: bureaucratic criminalization. 27 Interview n°8. […] Among these new requirements, there was a clearance declaration, which the organization had to sign, saying that none of the members of its board of directors had participated in a political campaign or had been politically affiliated, linking this to the issue of transfer of resources (interview 8). The criminalization strategy emphasized party affiliation and its relationship with the transfer of resources to the organization. The declaration demanded that the directors of the executing institution of the project “(i) are not also statutory directors of political parties; (ii) in the last 36 months, they have not participated in the decision-making structure of a political party or in work related to the organization, structuring and carrying out of an electoral campaign; and (iii) do not cumulatively hold a position in a trade union organization” (MPF, 2020, p. 1). Called to respond, through the Public Prosecutor’s Office, BNDES informed that the measure was intended to: “ensure more transparency, neutrality and effectiveness to operations”. A “decide to act”, as we have seen, that creates an administrative-bureaucratic process with a neoliberal grammar of efficiency, neutrality and good governance of processes. But, as well indicated by Abong in a statement to the Federal Public Ministry, the declaration proposed by the Fund bureaucratic criminalization. “sets up an attack on the Brazilian State’s constitutional guarantees regarding the right of free association and organization and the exercise of political rights without censorship or government intervention” (ABONG, 2020, p. 1). 28 And, in addition, “such requirements were not informed at the time of signing the contracts and even organizations whose contracts do not have a duration of 36 months are urged to sign such a declaration” (ABONG, 2020, p. 1). The scoring of these processes shows a scenario of distrust and criminalization of CSOs, which results in the cut of resources and, consequently, in the progressive or immediate reduction of the entities’ actions, programs and projects. We have, then, the questioning of the right to participation and social control. If in neoliberal rationality we could speak of a citizen who has been transformed into a subjectcompany, entrepreneur of himself; in an analogy, we could speak of a CSO-entrepreneur in its links from competition and private law. Thus, the possibility of interaction between the State and CSO happens, in the provocation of Dardot & Laval, in this way: “no rights if there are no counterparts” (DARDOT & LAVAL, 2016, p. 380). But a counterpart based on which political criteria? A central question in the dialogues carried out in the focus group and in the interviews pointed to a reflection on the role of CSOs in Brazil and democratic strengthening. We realize that the clarity of functions, purposes and political desires in multiple country projects can create reflections and ways of acting in bureaucratic criminalization. the face of the breakdown of democracy. As we are in this reality of “de-democratization”, it is interesting and fundamental to assume another perspective for reflection and for the way of acting in the relationship with the State, as narrated below: 29 Interview n°2. bureaucratic criminalization. A lot of the things that we do, we literally occupy one side of the trench. I will use this expression “trench” because it is actually an interesting metaphor, because we are in a field of dispute over what our cities and territories should be in Brazil. Much of what we do is to confront public projects, to confront proposals for public-private partnerships that may exclude people in Brazilian cities, to confront proposals for master plans, means of use and occupation of land that only honor the private initiative and the profit of the sectors that speculate with land. We see the state as fundamental, we do not abdicate the role of the state, nor public policies, however, with governments, with political groups and holders of power that are occupying the state machine, it is more common for us to have a posture of presenting contestations, confrontations, counter-proposals and resistances. Thus, [we chose] to support movements in territories and communities in their resistance process, strengthening these resistances; than we see ourselves collaborating with these power groups that are in governments to make projects of power or speculative projects viable (interview 2). Or in this excerpt from another interview: 30 Interview n°3. […] at the same time, it is very important to value the reactions of civil society itself in its ability to articulate internationally incident voices in support of the role of organizations and major social movements in the country. Abong itself, when this whole process of criminalization began, had a very important role in defense and also in spreading a greater understanding of the role of civil society organizations. I think that Brazilian society has always had a very good relationship with the work of CSOs and social movements, even though criminalizations existed (interview 3). A challenge for CSOs is to assume conflict, dispute and political positions so as not to be reduced to a totalizing mode of rationality and worldview; so that, in the face of a neoliberal state, there is some way of acting outside this logic, as stated in one of the interviews: Interview n°9. “We work very much in line with the State, with the demands that are State. I mean, we are guided, instead of guiding the policy. We became hostage” (Interview 9). With this problem, it is necessary to remake some questions: Which democracy, which social participation, which State, which are the meanings of civil society organizations? In a hegemonic way, we can say that current democracy is characterized (in a project and a purpose) as a “liberal democracy”. bureaucratic criminalization. In Chantau Mouffe’s reading, a democratic society, from the perspective of liberalism, is shown as a 31 “pacified and harmonious society where basic differences have been overcome and where a consensus imposed from a single interpretation of common values has been established” (MOUFFE, 2013, p. 11). We have, in this brief synthesis, a democracy of consensus, with the concealment of conflicts, the strength of rationalism as a model of civilization, the emptying of passion, the centrality of the individual and the projection of abstract universalisms (MOUFFE, 2003, p. 12). More precisely, when civil society organizations talk about the affirmation and defense of democracy, which democracy are we talking about? Is it in the liberal way? Is this where an answer and a “dispute” with “undemocratic” neoliberalism lie”? Let’s go to an example. Thiago Trindade, when analyzing urban occupations and the struggle for the right to the city in São Paulo, presents the limits of the “participatory consensus” and the defense logics structured by the “democratic state of law” itself”. The more “disruptive” actions – such as land and property occupations – “have their legitimacy questioned and are interpreted as an affront to the pillars responsible for sustaining the democratic regime” (TRINDADE, 2016, p. 220). In an articulation between sovereignty and governmentality, the State acts in an ambivalent way, on the one hand it “invites” and expects social actors to participate in the institutional mechanisms bureaucratic criminalization. of public policy management; on the other, “those who operate outside this gravitational field are criminalized” (TRINDADE, 2016, p. 220). The challenge, finally, is not simply to defend and seek to reorganize political processes in the democratic pacification of liberalism, but to create paths for an effective radicalization of democracy. 32 One of the statements in the interviews symbolizes this problem: Interview n°6. bureaucratic criminalization. We have been since 2018, right after the victory of the current president, discussing different issues regarding us as a movement, as an organization. Because since that period, we are at risk. We were not at risk after he joined, we were already at risk and he immediately declared that we were targets of possible persecution that he could develop. The problem is not what he does, it’s what he says. What he does builds a field of law, of politics, but what he says approaches violence, discrimination. So it’s not for nothing that you have every day a picture of discrimination and violence on television from different sectors, whether you’re a woman or a young person. This has a huge impact on our relationship, and even more so because, as we are the poorest population and the one with other needs, the entire set of actions against society’s criminality, of society’s living conditions, falls on any black person. It doesn’t have to be from an NGO or Congress or an authority, it will also have the same distrust, the same mechanism. And it would be no different, if it were, we would even have to be surprised (interview 6). What we see in the current government in its relationship with civil society organizations, social movements and certain bodies is an intensification of a long process for those who already live at risk, even in the so-called democracy. 33 It is the exception turned into a rule: Interview n°8. “they [the federal government] tried, so to speak, to limit the performance of people in wholesale, so, for example, limiting access to indigenous lands, creating certain types of constraints” (interview 8). How, then, to build processes to guarantee rights and imaginations of other forms of life in the face of a violence that seems to permeate everything? It is important to point out how the trace of criminalization and persecution is constituted from different processes. In this reading, raciality is an essential organizer. Or in the words of Denise Ferreira da Silva: “since the end of the 19th century, raciality has operated as an ethical arsenal together – inside, alongside, and always-already – in front of the legal-economic architectures that constitute the pair State Capital” (SILVA, 2019, p. 33). The arrangements on democracy are mediated by this game, including the construction of legal frameworks. In consensus processes, which political habits will be allowed and which will be treated and created as violent actions? bureaucratic criminalization. In the releases and constructions of protocols of administrative norms, what cannot be done – not only as a gesture of the current federal government but – from the security and racialized logic of the State itself? This is a fundamental debate for civil society organizations. 34 b. MROSC, reporting and accountability The MROSC (Law 13.019/2014) is a legal framework for civil society organizations and represents an important change in the relationship between CSOs and public authorities, especially in the context of partnerships. There is recognition of the very existence of civil society organizations and the inclusion of these entities as a fundamental part in the execution and monitoring of public policies. The legislation was the result of the struggle and articulation of the organizations, which acted to guarantee its legitimacy and its role in democracy. It is worth mentioning the significant role of the MROSC Platform in this mobilization. In the historical process of regulating the MROSC, speeches of CSO control appeared several times, however, the final text guaranteed the autonomy of civil society. The main changes established in the law are: the constitution of instruments, principles and guidelines for partnership relations; the mandatory public call; selection with guaranteed popular participation; the possibility of networking; the end of the requirement of financial counterparts; simplified accountability; the possibility of remunerating own staff and indirect costs; transparency; among others. bureaucratic criminalization. The approval of the new regulatory framework also had the objective of encouraging more partnerships between the public authorities and organizations. However, data show that just over 30% of CSOs accessed public resources by 2016 (IBGE, 2019). In addition to this scenario, between 2010 and 2018, only 2.7% had support from federal resources for project development (IPEA, 2018). A recurring answer to the question about whether or not to comply with the MROSC in the partnership with the public authorities was this: 35 Interview n°8. “During this period, we did not have any accordance or agreement with the public authorities” (interview 8). In the interviews carried out, this perception is very present: access to public resources is scarce and more difficult to access in recent years. As said below: Interview n°4. bureaucratic criminalization. I think that even with the MROSC, which is a great struggle by civil society so that we have a relationship and this support, that we can form partnerships with the Brazilian state… But we can see that the business is getting stuck in its progress . What we perceive is that, there is still a lot of resistance because civil society organizations are mistakenly criminalized […] And if criminalization is on us, that requires our position. What is required of bureaucracy, we have to present… I think our organizations are much more audited than certain companies that take government money. The level of auditing, the level of demand that is brought to our organizations is much higher than that of companies. […] So, I am very sorry that, even with MROSC, we have no possibility, we are not able to move forward (interview 4). 36 An important feature of Law 13.019/2014 is that it is a National Law, that is, it has national scope and must be followed by the Union, States and Municipalities, without exception. This is also an achievement. A single rule favors the definition of procedures and establishes jurisprudence. The MROSC became effective in 2016, at the federal level and, at the state level, in 2017. In 2016, Decree 8,762/2016 was also approved, which specifically regulates the rules and procedures of the legal regime of partnerships between the federal public administration and civil society organizations. The national scope does not prevent organizations from still facing problems in relation to the interpretation and applicability of Law 13.019/2014, especially at the municipal and state levels. First, there is the widespread complaint that the legislation is not known by public officials themselves. Second, there are procedures for public calls, notices, celebration of partnerships and accountability that do not follow national legislation. Still at the municipal level, there are laws that contradict the MROSC. In the research carried out with the organizations affiliated to Abong, we see that the breaches of this legislation happened in the three spheres (federal, state and municipal), but with an emphasis on violations in the states: bureaucratic criminalization. 37 Figure 1 In which scope was there any State procedure that did not follow the regulatory framework for CSOs (law 13.019/2014) In which scope was there any State procedure that did not follow the regulatory framework for CSOs (law 13.019/2014?)? 41,18% 40% 35,29% 30% 21, 53% 20% 10% federal state municipal Although the MROSC has been in force for some years, some practices in the celebration of partnerships still refer to the previous legal context. Before Law 13.019/2014, there was no specific legislation for the relationship between the government and CSOs. The legal basis for entering into the agreements was an interpretation of the Bidding Law (Law 8666/1993). This free interpretation given by the Brazilian legal system resulted in each entity of the federation establishing analogies in the application of the norm, generating different interpretations. It was a situation of legal uncertainty, both for managers and managers of CSOs, as well as for managers and public managers, due to the absence of legal norms that guarantee which procedures would be adopted, case by case. There is still an important path to consolidate Law 13.019/2014 and guarantee its own instruments and principles, since some public entities still maintain practices of agreements and not partnerships. bureaucratic criminalization. About these breaches, there is a report that summarizes this scenario and that happened in the state of São Paulo in relation to the contract and the release of parliamentary amendments. In 2020, the organization presented a proposal for one of the mandates of the State Legislative Assembly, a project worth one hundred thousand reais, which was approved, entered the Budget Law and would have the year 2021 as the period of its execution.. 38 Interview n°2. bureaucratic criminalization. As it was a project in the area of monuments and public memory, then this resource should be executed by the executive, through the State Department of Culture and Creative Economy. The Secretary of Culture contacted us to carry out the entire process according to the MROSC, to carry out the process of signing the collaboration agreement between the state of São Paulo and [the organization] to make it viable. We had to send the entire work plan, schedule, everything that MROSC determines, and then we were suddenly surprised by a demand from the Department of Culture that we would also have to present our accounting balance published in a newspaper, both in Official State Gazette as well as in circulation newspapers. This requirement does not exist in the legislation, in law 13.019, which is the framework of the MROSC. It was a requirement, yes, that existed in the past for you to obtain that certificate of public utility, which is something that the MROSC itself wants to extinguish. It became extinct at the federal level and it makes no sense to have this certificate of public utility in states and municipalities anymore. So we answered what was the legal support for the secretariat to make this demand, because to make this publication, it costs more or less 5 thousand reais for you to publish this type of thing in the Official Gazette. And it’s not a cost that the project will cover. The secretary wants you to take it out of your pocket to publish it; and they asked for the last two years, so we had to publish the 2019 and 2020 ones. We are talking about about 10 thousand reais of expense (interview 2). 39 One more important point to be mentioned in this study is that the new legal framework is not valid for agreements signed previously, so the context of legal uncertainty continues for organizations that had or still have agreements signed before Law 13.019/2014. The main fact that draws attention is still the approval of accountability. In the interviews carried out and in the legal assistance provided by Abong, some organizations reported that in the last three years they received questions about the accountability of agreements entered into and ended many years ago, some of up to 15 years ago. Below, we present a report that summarizes this practice. Interview C Grupo Focal. bureaucratic criminalization. At the end of 2005, 2006, [the organization] had an agreement with the federal government to run professional training courses, a youth social consortium. In its 3rd edition here in Recife, [the organization] was going to be the anchor, umbrella entity. The project provided for 5 to 10% of counterpart, this counterpart was being obtained from the state government, which was very common, no organization could take it out of pocket, it did not have 5% or 10 of an amount of 1.5 million, 2 million. But in the course of this process there were some complaints of non-technical criteria for the choice of some organizations at the national level, by the Ministry of Labor at the time. And then, apparently, as a way of responding to the press, Recife and another city that I don’t remember, this project was discontinued quite abruptly. In the beginning the resources began to be executed. Despite the appeals, there were denials and we promptly closed the activities and made an account of what we had already started to use and return the rest. At the time we did the accounting and everything else. To our amazement, after 12 years, more or less, we received the communication of the need to return more than 150 thousand reais and the main amounts were going to be corrected, alleging that, the non-receipt and noncompliance with the rendering of accounts and all more (C, grupo focal). 40 This practice carried out by the government is unreasonable and can be considered illegal. Decree 8,244/2014, which regulates the agreements, for example, determines that the period for analyzing the rendering of accounts must be a maximum of one year, extendable for another year. Tax legislation establishes that tax documents must remain on file for five years. The legislation in force and the contracts signed in each case must also be observed. However, the questioning of accountability carried out several years after the finalization of the contracts has no legal justification and generates enormous insecurity and many constraints for civil society organizations. Regarding the rendering of accounts of partnerships signed based on the Regulatory Framework for Civil Society Organizations, there are several guarantees bureaucratic criminalization.