See discussions, stats, and author profiles for this publication at:

https://www.researchgate.net/publication/313903472

Criminal Responsibility in Brazilian Transitional Justice:

A Constitutional Interpretative Process under the
Paradigm of International Human Rights ....

Article · February 2017

CITATION READS

1 36

2 authors, including:

Emilio Peluso Neder Meyer

Federal University of Minas Gerais
12 PUBLICATIONS   8 CITATIONS   

SEE PROFILE

Some of the authors of this publication are also working on these related projects:

Study Center on Transitional Justice View project

All content following this page was uploaded by Emilio Peluso Neder Meyer on 23 February 2017.

The user has requested enhancement of the downloaded file.

+(,121/,1(
Citation: 4 Indon. J. Int'l & Comp. L. 41 2017

Content downloaded/printed from HeinOnline

Thu Feb 23 05:15:45 2017

-- Your use of this HeinOnline PDF indicates your acceptance

of HeinOnline's Terms and Conditions of the license
agreement available at http://heinonline.org/HOL/License

-- The search text of this PDF is generated from

uncorrected OCR text.

-- To obtain permission to use this article beyond the scope

of your HeinOnline license, please use:

Copyright Information
 CRIMINAL RESPONSIBILITY IN BRAZILIAN
TRANSITIONAL JUSTICE

A CONSTITUTIONAL INTERPRETATIVE PROCESS UNDER

THE PARADIGM OF INTERNATIONAL HUMAN RIGHTS
LAW

Emilio Peluso Neder Meyer

The Federal University of Minas Gerais,Brazil

E-mail: emiliopeluso@gmail.com

This article aims to show how Brazilian institutions are coming to the conclu-
sion that the crimes perpetrated by state agents during the Brazilian dictator-
ship of 1964-1985 are crimes against humanity. This conclusion is now being
reflected in few judicialrulings but, paradoxically,in several institutionalopin-
ions (delivered by prosecutors, truth and reparatorycommissions). The article
provides an approachto the historicalcontext of Brazilian dictatorshipand the
transitionaljustice measures that came after that exception period.An overview
of how criminal responsibilityfor crimes perpetratedby Brazilian public agents
was put aside duringseveral decades will have a climax in the BrazilianFederal
Supreme Court (Brazilian Supremo Tribunal Federal) holding of 2010. On the
flip side, the condemnation of Brazil by the IACtHR in the Gomes Lund Case
will be followed by the incorporationof the notion of crimes against humanity.
In conclusion, it will be possible to ascertain that Brazilian institutions started
to conform to the normative demands of internationalhuman rights law con-
cerning criminal individualresponsibility,even ifjudicialauthoritiesobstinately
resistingit.

This work was supported by Coordenayio de Aperfeiyoamento de Pessoal de Nivel

Superior (CAPES), a foundation affiliated with the Brazilian Ministry of Education
(process number 3192-14-8).
The author would like to thank Marcelo Torelly from the University of Brasilia
for his suggestion to write this article and Mariana Oliveira for helping review this
manuscript.
The Indonesian Journal of International & Comparative Law
ISSN: 2338O7602; E ISSN: 2338 770X
http://www.iji.org
©D2017 The Institute for Migrant Rtights Press
 Meyer
Keywords: Transititional Justice, Human Rights, Democracy-building, Constitution-
al Law, Authoritarianism, Amnesty Law.

I.INTRODUCTION

Transitional justice in Brazil, as elsewhere, has to do with movements

forwards and backwards in time.1 Prosecutions that should have been
pursued immediately were postponed. In Brazil, the Amnesty Law of
1979 seemed to retroactively erase all responsibility for crimes against
humanity carried out during the dictatorship of 1964-85.2 We shall see
that criminal proceedings only began more than 30 years after the Am-
t nesty Law was adopted.
This gap can be explained by several factors: the indifference of the
majority of the population; the absence of public policies connected
with transitional justice; and cultural motives.3 Recently however,
a things have started to change. The hypothesis of this article is that
Brazilian institutions are finally recognizing and embracing (as they
must) a binding "international human rights rule of law." According
to this point of view, rule of law, transitional justice and international
o human rights law are directly linked and, as a result, transitional
justice processes become less domestic and more internationalized.4 To

1. For an account of the Brazilian transitional justice process, see, EMILIO MEYER,
3
© DITADURA E RESPONSABILIZA kO: ELEMENTOS PARA UMA JUSTI(A DE TRAN-

SI AkO NO BRASIL (2012); JUSTI A DE TRANSI( kO NOS 25 ANOS DA CONSTITU-

;J IQ O DE 1988 (Emilio Meyer & Marcelo Cattoni eds, 2014) (especially regard-
ing the 25 years of the Brazilian Constitution of 1988); EMILIO MEYER, JUSTI A
3
DE TRANSI kO EM PERSPECTIVA TRANSNACIONAL (2016); MARCELO TORELLY,
3
JUSTI A DE TRANSI kO E ESTADO CONSTITUCIONAL DE DIREITO: PERSPECTI-
VA TE6RICO- COMPARATIVA E ANkLISE DO CASo BRASILEIRO (2012); TRANSI-
TIONAL JUSTICE: DAS PROBLEM GERECHTER STRAFRECHTLICHER VERGANGEN-
>HEITSBEWALTIGUNG (Ulfrid Neumann et al. eds, 2013).

2. Although one can argue for differentiations between gross violations of human
rights and crimes against humanity, I will adopt them as equivalents for the
purposes of this article, only opposing them when it is necessary to the context.
3. Regarding the latter reason, see, REBECA ATENCIO, MEMORY'S TURN: RECKON-
ING WITH DICTATORSHIP IN BRAZIL (2014).

4. For a critical point of view on the relationship between transitional justice and
rule of law, see, PADRAIG McAULIFFE, TRANSITIONAL JUSTICE AND RULE OF
 Meyer
borrow a phrase coined by Ruti Teitel, it seems that an internationally
developed humanity's law has already become an essential tool in
assuring that steps towards a system of democracy and human rights
are taken.5
The Brazilian case of long-term transitional justice demanding
delayed criminal responsibilities for crimes against humanity can c.
be situated in the perspective of what Kathryn Sikkink calls "justice -
cascade.' 6 Sikkink observes that norms are not simply "old rule[s]
about what to do" but, instead, they are the result of the intersubjective
process of groups of people holding what was initially favored by "norm
entrepreneurs" (that is, individuals that aim for their ideas to become
socially accepted). With the success of these norms, it is possible to talk
about a "norm cascade.' In the same sense, pursuing officials accused 2
of human rights violations is an ongoing process that has been gaining
strength and legitimacy since the 1970s-something akin to several :i
streams that will combine to form into a "justice cascade.' 8
One can conclude that Brazil must follow the pattern of criminal
individual responsibility for crimes against humanity analyzing
the data collected by Sikkink: a) from 1979 to 2009, 55 per cent of
world criminal prosecutions occurred in the Americas, leading to 5i
a contamination case; b) the passage of time, by itself, cannot avoid
criminal prosecutions: the "country-prosecution years" are, on average,
high (6.4 years) and they encompass longer periods;9 c) the creation
and use of truth commissions do not put justice aside, since families
continue their battles or increase them with the truth commissions
results; d) the relationship that Kathryn Sikkink and Carrie Booth

LAW RECONSTRUCTION: A CONTENTIOUS RELATIONSHIP (2013).

5. See RUTI TEITEL, HUMANITY'S LAW 125 (2011), where the author explicitly
mentions the Inter-American Court of Human Rights case on Peru, Barrios
Altos (Barrios Altos v. Peru Case, 2001 Inter-Am. Ct. H.R. (Mar. 14, 2001)), as
an "instance of humanity law framework adjudication."
6. KATHRYN SIKKINK, THE JUSTICE CASCADE: How HUMAN RIGHTS PROSECU-
TIONS ARE CHANGING WORLD POLITICS 6 (2011).
7. See SIKKINK, supra note 6, at 8.
8. See SIKKINK, supra note 6, at io.
9. Kathryn Sikkink & Carrie-Booth Walling, The Impact of Human Rights Trials
in Latin America, 44 J. PEACE RES. 427 (2007).
43 :
 Meyer
Walling note between an increase in the Political Terror Scale (PTS)
and the absence of individual criminal liability for gross violations
of human rights is an important fact to consider. Sikkink also shows
that levels of human rights violations, subordination of the military to
civilian control and cultures of impunity have only increased in the last
years, right on the only case in Latin America where prosecutions for
gross violations of human rights have not happened. 10
Albeit Sikkink dedicated few pages to Brazil in her analysis from
2011,11 she still mentioned one case involving the judicial appraisal
of disappearances that occurred during the dictatorship and Brazil's
condemnation by the Inter-American Court ofHuman Rights (IACtHR)
in the Gomes Lund Case. We can see that these events, added to several
others, changed criminal responsibility in Brazilian transitional justice
in a sharp fashion.
The Brazilian case can potentially show how long-term transitional
justice should be implemented in constitutional processes that go
beyond the idea of a simple forward-looking norm. Moreover, the
normative approach that postulates the need for criminal responsibility
u has been clear for decades from the perspective of human rights
S activists and civil society groups, although unfortunately that has not
been the case with institutional actors. The pressure to align these
allegedly opposite "sides" may grow after a long period of time, and
an interpretative approach of law can provide a reading of domestic
12
norms guided by international human rights law.
o This article aims to show how Brazilian institutions are coming to
the conclusion that the crimes perpetrated by State agents during the

10. See SIKKINK, supra note 6, at 146, 149, 152 and 157. See also, Sikkink & Walling,
supra note 9. For a discussion on the effects of criminal responsibility holdings
7J on human rights systems, see, TRICYA OLSEN, LEIGH PAYNE & ANDREW RE-
ITER, TRANSITIONAL JUSTICE IN BALANCE: COMPARING PROCESSES, WEIGH-
ING EFFICACY (2010). See, Mark Gibney et al., Political Terror Scale 1976-2012
http://www.politicalterrorscale.org/ (last visited Sep. 3 2014), for the increas-
ing numbers in Brazil and decreasing numbers in countries that went through
condemnations, like Chile and Argentina.
11. See SIKKINK, supra note 6, at 141 and 147.
12. RUTI TEITEL, GLOBALIZING TRANSITIONAL JUSTICE: CONTEMPORARY ESSAYS
202 (2014) (mentioning "the dialogic character of interpretation and the mu-
tual influence of diverse legal orders.').
 Meyer
Brazilian dictatorship of 1964-85 are crimes against humanity. These
emerging conclusions have started to be reflected on judicial rulings
and institutional opinions, in a type of State practice originated by
civil society group action. Although there are few judicial cases, the 2
conclusion in the same sense reached by the National Truth Commission
(NTC) report shows that it will be very hard for the Brazilian Judiciary
to negate this argument.
To treat the crimes of the dictatorship as crimes against humanity
is possible, from a constitutional law perspective, because of the
interpretative character of law. By interpretative, I mean to imply the
fact that the law is a constructive entrepreneur, much in the sense
proposed by Ronald Dworkin.13 Assuming the differentiation between 4
"concepts" and "conceptions" it is possible to see that the normative
concept of amnesty, which is extremely important to Brazil's transition, -.
has gained different conceptions throughout the years in which :
transitional justice has been developing. This means that the Brazilian
Constitution of 1988 could provide the necessary field for a change in
the presumed general consensus of a blank amnesty for perpetrators.
The incorporation of international human rights law could -

reveal that the adequate and normative amnesty does not exclude :i
investigation and prosecution of crimes against humanity, and does not
give impunity from it. This law's openness to interpretative processes
is fundamental, especially because institutional and civil society actors
are now claiming that the crimes of the dictatorship are crimes against .

humanity. So, they always violated international customs, jus cogens

norms and obligations erga omnes, and no prescription, amnesty or
statute of limitations can avoid their punishment, even if the crimes
were committed long ago.14

13. See RONALD DWORKIN, JUSTICE FOR HEDGEHOGS 136 (2011).

14. Jus cogens norms are peremptory norms; that is,
rules that exist independently
of the will of States and law-makers, as defined by Vienna Convention on the
Law of Treaties art. 53, openedfor signatureMay 23, 1969, 1155 U.N.T.S. 331, at
331, available at http://www.refworld.org/docid/3ae6b3al0.html (last visited
Oct. 21 2015)). Erga omnes obligations is a concept introduced by the Inter-
national Court of Justice in the so-called Barcelona Traction Case (Barcelona
Traction, Light and Power Co., Ltd. (Belg. v. Spain), 1970 I.C.J. 4, 35 (Feb. 5,))
of 1970, in which it affirmed that they "[a] re the concern of all States because
of the importance of the obligations involved, which means all States can be
held to have a legal interest in their protection." See, Erika De Wet, Jus Cogens 2-t
45 J
Meyer

To reach the aims of this work, the discussion is planned as follows:

a) an approach to the historical context of Brazilian dictatorship and
measures that came after that exception period; b) an overview of how
criminal responsibility for crimes perpetrated by Brazilian public agents
was put aside during the decades of 1980, 1990 and 2000; c) how the
Brazilian Supremo Tribunal Federal (STF) took a step back in criminal
responsibility in 2010; d) the Brazilian condemnation by the IACtHR in
the Gomes Lund Case;15 e) the recent need to comply with the IACtHR
ruling and the incorporation of the notion of crimes against humanity
in Brazil; f) the new challenge that the STF will confront; and g) the
position of the NTC in its final report. In conclusion, it will be possible
to verify that Brazilian institutions have started to get involved with
the normative demands of international human rights law concerning
criminal individual responsibility for crimes against humanity.

I. BRAZILIAN DICTATORSHIP OF
1964-1985 AND TRANSITIONAL JUSTICE
MEASURES: A SHORT OVERVIEW

Although well known as a "military dictatorship" it is a growing con-

sensus in Brazil that the structure that was formed following the coup
of 1964 had strong civilian support, something that has made schol-
ars prefer the term "civilian-military dictatorship' 16 This structure was
well suited to combat political opposition in a clear violation of several

and ObligationsErga Omnes, in THE OXFORD HANDBOOK OF INTERNATIONAL

HUMAN RIGHTS LAW 541-54 (Dinah Shelton ed., 2013).

15. See, Gomes Lund et al. v. Brazil, Inter-Am. Ct. H. R., Series C No. 219, (Nov.
24, 2010), http://www.corteidh.or.cr/docs/casos/articulos/seriec_219_ing.pdf
(last visited July 23, 2014).
16. For a discussion of the term "civilian-military coup,' see NINA SCHNEIDER,
BRAZILIAN PROPAGANDA: LEGITIMIZING AN AUTHORITARIAN REGIME 5
(2014). It is important to notice that what happened in Brazil in 2016 was an-
other kind of coup, a parliamentary one. Several scholars are supporting this
argument, including this author. See JESSE SOUZA, A RADIOGRAFIA DO GOLPE:
COMO E POR QUE Voct FoI ENGANADO (2016); and A RESISTENCIA AO GOLPE
DE 2016 (Carol Proner et al. ed, 2016).
 Meyer
international law norms and even the "authoritarian legality"1
acts im- .
posed by the regime-through what it called "institutional acts" and -

"complementary acts "' 18 The NTC report, published on December 12,

2014, shows, for instance, that torture occurred before, at the time of g
and after the coup, with the additional problem that it became part of
the institutions of repression from that moment.19 Indeed, the report c.
demonstrated that torture was not a restricted or exceptional practice .
used by police forces; it became a policy founded on national security
and the war against terrorism.
With the coup against President Jod.o Goulart, the dictators
Castello Branco (1964-67), Costa e Silva (1967-69), Garrastazu
Mddici (1969-74), Ernesto Geisel (1974-79) and Jod.o Figueiredo
(1979-85), maintained the repression apparatus that used censorship, 6
illegal detentions, torture, sexual violence, violence against children,
gender-based violence, violence based on sexual orientation, forced :[
disappearances and extrajudicial killings, both inside and outside
Brazilian territory, against its civil population and foreigners, all in a
broad, general and systematic way.20 Soon, the structure gained force o

with the Bandeirantes Operation, a combined operation between the

Army, the Navy, the Air Force, and the Civil and the Military Polices

17. By authoritarian legality I refer to the means used by an authoritarian regime

in trying to show that the de facto acts are according to the law. For the author-
itarian legality concept, see, ANTHONY PEREIRA, POLITICAL (IN)JusTICE: Au-
THORITARIANISM AND THE RULE OF LAW IN BRAZIL, CHILE, AND ARGENTINA
(2005).
18. "Institutional or Complementary Acts" were statutes approved by the so-called e
"Revolution Command" in order to give a semblance of legality to the regime.
Of course, they were in all aspects illegitimate, since they were simply imposed
by those responsible for the coup of 1964 and were not approved by any leg-
islative institution. So, the legislative procedure required by, the Constitutions
of 1946 and 1967, as well as the Constitutional Amendment no. 1 of 1969 (an
imposed Constitution, as the one of 1967, in fact) was not accomplished in the
cases of institutional and complementary acts.
19. See Comissdo Nacional da Verdade [Brazilian National Truth Commission],
Relat6rio da Comissao Nacional da Verdade - Vol. I [Brazilian National Tru-
th Commission Report], Brasilia (2014), http://www.cnv.gov.br/index.php/
outros- destaques/574- conheca- e-acesse- o-relatorio- final- da-cnv (last visited
Jan. 1, 2015), at 337.
20. See Comissdo Nacional da Verdade [Brazilian National Truth Commission],
supra note 19, at 275.
47 :
 Meyer
of federal states, financed by entrepreneurs, that occurred in Silo Paulo
from 1969. This was responsible for the subsequent creation of the
Destacamento de Opera 6es de Informa 6es-Centro de Opera 6es
de Defesa Interna (Department of Information Operations-Center
for Internal Defense Operations-DOI-CODIs). The NTC report
was successfully able to show how there was a clear command chain
ultimately linked to the dictators, allowing them to practice gross
violations of human rights.21
Historically, one can divide the regime into three phases: the first
from the coup until the consolidation of the new regime; the second
after Institutional Act no. 5 of 1968, a political act through which
the regime became even harder, suspending, for example, the writ of
habeas corpus in cases of political crimes; and the third from 1974
onwards, when the regime was under pressure from civil society and
in response attempted to control the path to democracy, in what was
called by dictator Ernesto Geisel as a "slow and gradual openness. 22
The civil-military dictatorship ended in 1985, with a final attempt to
control the transition to democracy.23 The balance left-at least, as far
as it is possible to know, since the Armed Forces resisted opening up
& their archives-indicates 434 dead people and disappeared ones. 24 This
number could in realitybe much higher, as the NTCwas not able to show
the exact number of indigenous people killed-the report mentions an
average of 8.341 victims, a number, by anybody's standards, extremely
2 high. 25 6,491 military officers were persecuted; in the first months of
C

21. See id.at 111.

22. There is a vast amount of literature on the history of Brazilian dictatorship.
Limited by the aims of this work and from a more constitutional and legal
point of view, see LEONARDO BARBOSA, HIST6RIA CONSTITUCIONAL BRASILEI-
7j RA: MUDAN A CONSTITUCIONAL, AUTORITARISMO E DEMOCRACIA NO BRASIL
P6s-1964 (2012).
23. See the final document of the Comissdo Especial sobre Mortos e Desaparecidos
Politicos da Presid~ncia da Repfiblica [Special Commission for People who
Forcibly Disappeared or Were Killed for Political Reasons], Direito aiMem6ria
e aiVerdade, (2007), at 21.
24. See Comissdo Nacional da Verdade [Brazilian National Truth Commission],
supra note 19, at 963.
25. See Comissdo Nacional da Verdade [Brazilian National Truth Commission],
Relat6rio da Comissao Nacional da Verdade-Vol. II [Brazilian National Tru-
 Meyer
the dictatorship, something like 50,000 were detained, 10,000 were .
forced into exile, 7,367 were prosecuted in military tribunals (with -

severe restrictions on the due process of law), 130 were banished, and
4,862 had their political rights or terms suspended ("cassados"). 26 _

For the purposes of this article, it is worth noting that the NTC©
report stated the names of 377 state officials involved in perpetrating
crimes against humanity during the Brazilian dictatorship. 27 As a rough -
estimate, at least 100 of those perpetrators are still alive.
One of the most important landmarks for Brazilian transition was
the Constitution of 1988. As we shall see, it incorporated several of
the civil society demands which had been directed to the amnesty to
political opponents in 1979 and to the unsuccessful presidential direct .
elections in 1985. The Constitution of 1988 addressed the amnesty
issue, but in a different way to the Amnesty Law of 1979, which also
aimed to establish an automatic amnesty for public agents. In doing
so, the Constitution established an amnesty that would allow for
criminal responsibility to be pursued, even if it occurred several years >
later. Such a conception, governed by international human rights law,
could never authorize a blanket amnesty for crimes against humanity.
This would be an example that demonstrates how the amnesty concept
could gain newer and more refined conceptions due to the demands of
transitional justice, much in the sense of what Dworkin proposes for
interpretive concepts in law and politics. Those refined conceptions are
in opposition to blanket amnesties if we are operating in the context of

th Commission Report], Brasilia (2014), available at http://www.cnv.gov.br/

index.php/outros-destaques/574- conheca- e-acesse-o-relatorio-final-da-cnv
(last visited Jan. 1, 2015), at 248, n 2.
26. These are the numbers mentioned in Arquidiocese de Sdo Paulo [Sdo Pau-
lo Archdiocese], Brasil Nunca Mais (Sdo Paulo, 1985). See Comissdo Especial
sobre Mortos e Desaparecidos Politicos da Presid~ncia da Repfiblica [Special
Commission for People who Forcibly Disappeared or Were Killed for Political
Reasons], supra note 23, at 34.
27. See Comissdo Nacional da Verdade [Brazilian National Truth Commission],
supra note 16, at 841. The Sdo Paulo Archdiocese has reached a different con-
clusion, identifying 444 torturers on a list that came to light in November 1985.
See Glenda Mezarobba, Um acerto de contas com o futuro: a anistia e suas
consequ~ncias-um estudo do caso brasileiro (2003) (unpublished MM diss.,
USP) (on file with USP Library), at 66).
49 i
 Meyer
crimes against humanity.28
Speaking more broadly about transitional justice measures,
one of the most important elements brought to light is the so-called
"reparations program.' Claims of victims and their relatives are
systematically organized by an Amnesty Commission of the Federal
Government established by Statute Law no. 10.559 of 2001; after
that, they are appraised and, if found fitting, redressive payments are
made and the state authorities offer an apology to the victim and their
family.29 In addition, the right to truth and memory has been confirmed
by the creation of the NTC, which began its operations in May 2012.30
Several other commissions were established by different States and by
civil society, and a bill was passed that tried to assure a right of access
to information kept by the State authorities.31 We are also reminded
of the creation of the Special Commission for People who Forcibly
Disappeared or Were Killed for Political Reasons, set up by Statute Law
no. 9.140 of 1995.
All of these were important steps. Nonetheless, not much has been

28. See DWORKIN, supra note 13, at 161 ("We do not agree about what makes an
86 act just or unjust, right or wrong, an invasion of liberty or an act of tactlessness.
Nor do we agree about what response, if any, would be required or justified by a
correct attribution of the concept. But we agree sufficiently about what we take
to be the paradigm instances of the concept, and paradigm cases of appropri-
ate reactions to those instances, to permit us to argue, in a way intelligible to
others who share the concept with us, that a particular characterization of the
o value or disvalue best justifies these shared paradigms.').
29. All Brazilian federal statute laws quoted or mentioned in this paper available at
http://www2.planalto.gov.br/acervo/legislacao (last visited Jan. 6, 2014).
30. The NTC met with some difficulties in the course of its operations. After de-
manding that the Armed Forces deliver documents connected with the repres-
C sion apparatus, the military institutions, subordinated to the Brazilian (civil-
ian) Ministry of Defence, installed administrative procedures to investigate the
facts. However, the conclusion was that the alleged violations of human rights
were not practised in the so-called DOI-CODI and other branches, since those
departments were not used with "diverted purposes." The NTC responded im-
mediately, deploring and regretting those conclusions. See Helena Martins et
al., Commission responds to Armed Forces over Torture, (EBC Ag~ncia Bra-
sil), available at http://agenciabrasil.ebc.com.br/en/direitos-humanos/noti-
cia/2014-07/commission- responds- armed-forces- over-torture- dictatorship
(last visited July 22, 2014).
31. Statute Law no. 12.527 of 2011.
50
 Meyer
done as regards institutional purges and reforms, and also in the matter
of the criminal responsibility of people who collaborated with or acted
in the name of the civilian-military dictatorship of 1964-85.32

1Il. DISCUSSING MEASURES FOR

CRIMINAL RESPONSIBILITY OF THE
DICTATORSHIP'S PUBLIC AGENTS

The attempt to prosecute and convict State perpetrators of human

rights violations during the dictatorship period has been historically
banned by a problematic interpretation of the so-called Amnesty Law 0
of 1979."3 The first goal of that statute was to assure amnesty to all po-
litical opponents of the regime.34 Several civil society groups demand-
ed that political opponents who had been persecuted, condemned or
exiled should be set free or allowed to come back to Brazil.35 In spite
©

32. For the relationship between individual punishments and institutional reform,
see Basil Fernando, Editorial:InstitutionalReforms as an IntegralPartof a Corn- Z.
prehensive Approach to TransitionalJustice, 8 INT'L J. TRANSITIONAL JUST. 192
(2014).
33. Statute Law no. 6.683 of 1979.
34. In other words, the traditional conception of amnesty. Under the Brazilian
Constitution of 1988, this conception was strengthened so as to refer only to
the situation of those who had fought the dictatorship and who were now to
be recognized as "politically amnestied.' That is, the conception that can be T

read, as we posit, in the Brazilian Constitution of 1988, especially in Article 8

of the Act of the Constitutional Transitional Rules. See Francesca Lessa et al., C'
Pathways to accountabilityin Latin America, 8 INT'L J. TRANSITIONAL JUST. 85
(2014). ("The law initially received widespread support, as the left and human ¢.
rights community promoted it as a mechanism to release political prisoners,
encourage the return of exiles and restore political rights. But when it was fi-
nally enacted, the military regime used the law to shield its own forces from ac-
countability." It should be made clear that the conception of an amnesty aimed
at those persecuted by the regime was crucial for the Brazilian transition; what
is at stake here is the so-called "auto- amnesty" of those who acted in the name t
of the military dictatorship.).
35. "While much of the literature tends to overemphasize the view that this inno-
vative military policy was predominantly driven 'from above,' other scholars
have stressed that it was significantly demanded 'from below, as the popularity
51
 Meyer
of the pressure of these social groups, the civilian-military dictatorship
managed to pass through the National Congress, by a slight majority, a
statute drawn up by the Executive authorities that contained the phrase
"connected crimes.3 6 This would allow the authorities of the demo-
cratic regime to reach the conclusion that they could not investigate,
prosecute or convict the perpetrators who had acted in the name of the
dictatorship.
As the transition occurred, with the convening of a Constitutional
Assembly in 1987-88 which established the new Constitution of 1988,
many facts stood as a barrier to prosecutions and other transitional
elements. As we saw, even measures put into place by the Constitution
itself, such as a reparations program, were initiated only several years
after the approval of the new Fundamental Law; that is, when the proper
Constitution established rights for political opponents, it demanded a
statutory law enactment that would, of course, depend on congressional
majorities (most of whom were not particularly worried about these
rights).3 The legal status of victims of forced disappearance only came
to be defined by a statute enacted in 1995 (the above-mentioned Statute
Law no. 9.140 of 1995), a law that also recognized civil liability of the
& Brazilian Federal Union for the deaths and disappearances which
had occurred.38 At the same time, unsuccessful individual criminal
prosecutions took place in the 1980s and 1990s, in the course of which

2of the regime declined in the 1970s.' Nina Schneider, Impunity in Post-author-
o itarianBrazil: The Supreme Court's Recent Verdict on the Amnesty Law, 90 ER-
LACS 42 (2011).
36. Statute Law no. 6.683 of 1979, available at https://www.planalto.gov.br/cciv-
il_03/Leis/L6683.htm (last visited Dec. 10 of 2016).
37. The aforementioned Statute Law no. 10.559 of November 13, 2001 is a specifi-
0
7J cation of Article 8 of the Brazilian Constitution of 1988's Transitory Constitu-
tional Provisions Act.
38. It is important to note that there wasn't, actually, an acceptance of "blood
money" in Brazil, that is, an exchange between reparations offered by the gov-
ernment and silence or injustice by the victims. The reparations programme,
mainly when it became not only economic, but also symbolic, was fundamen-
tal to further actions on truth and justice. The families, victims and resistant's
continuous fighting for justice demonstrate that this issue always stood waiting
at the door. SIKKINK, supra note 6, at 144 ("Brazil appears to be the only case
where a country so far succeeded in using reparations as a substitute for pros-
ecutions when responding to demands of victims.").
 Meyer
the Amnesty Law of 1979 was systematically invoked to erect a wall .
that voided those prosecutions.3 9
Following the end of the dictatorship, the work of several civil
society groups was able to keep the criminal responsibility of public
agents on the political agenda. Right after the approval of the Amnesty
Law in 1979, the Brazilian Amnesty Committee, an association of civil
society committees from several Brazilian states, declared that the fight
should go on, and demanded that the responsibility of the perpetrators E
be recognized.4" Several years later, in 1995, other associations lent
their support to institutions and families that had sued the Brazilian
Government in the Inter-American Commission of Human Rights for
facts connected to the Araguaia Guerrilla (a case discussed below).
The representation was co-written by Human Rights Watch, the
Tortura Nunca Mais group and the Comissdo de Familiares de Mortos -
e Desaparecidos Politicos do Instituto de Estudos da Viol~ncia do
Estado de Si.o Paulo (Commission of Families of the Dead and Forcibly
Disappeared of the Violence Studies Institute of the State of Sdo Paulo).
The Tortura Nunca Mais group was founded in 1976 to help the
families of the forcibly disappeared try to find them and make the
Brazilian Government take responsibility for their disappearance.41 i
The Comissdo de Familiares de Mortos e Desaparecidos Politicos do
Instituto de Estudos da Viol~ncia do Estado de Si.o Paulo was created
in 1993 after the discovery of a mass grave in the Cemetery of Perus,
Si.o Paulo.4 2 The group's aim is not only to investigate the origins of the "

39. The investigations into the 1975 torture and murder of Vladimir Herzog, a
famous Brazilian journalist, can be given as an example. In 1976, the Brazil-
ian Federal Union was charged and condemned in a civil court for his death.
However, criminal procedures were as unsuccessful in the 1970s as in 1992.
Recently, on 8 December 2012, the Inter-American Commission of Human
Rights took in a formal accusation related to his case-Vladimir Herzog et al.
v. Brazil, Admissibility, Inter-Am. C. H. R., Report n. 80/12, Petition P-859-
09 (2012), http://www.oas.org/en/iachr/decisions/2012/BRAD859-09EN.doc
(last visited July 22, 2014).
40. MEZAROBBA, supra note 27, at 66.
41. For more information, see http://www.torturanuncamais-sp.org/site/ (The
group website says that the foundation was formed in 1976, still as a clandes-
tine organisation.) (last visited Aug. 28, 2014).
42. See http://www.desaparecidospoliticos.org.br/quem somos instituto.
php?m=2 (last visited Aug. 28, 2014).
53 i
 Meyer
skeletons found in the mass grave, but also to search for victims of other
crimes carried out during the dictatorship and to assign responsibility
for such crimes.
However, the demands of these groups were not heeded by
institutional actors. The Brazilian Constitution of 1988, in Article 129
item I, assigns the responsibility for starting criminal prosecutions to
the Federal and State Attorney's Offices. Neither investigations nor
criminal actions were pursued in a great number of instances, since
the current Constitution was adopted. This was the case even before
the Constitution, probably because of the supposed consensus on the
amnesty effects. Fortunately, those facts were never set up as a barrier
to fight civil society groups.
In 2007, the Amnesty Commission of the Federal Government
started debating with the authorities and civil society groups about
steps that could be taken to make prosecution an effective element of
transitional justice.43 As a culmination of years of debates, ADPF 153
was filed at the highest court in Brazil, the STF, by the Federal Council of
the Brazilian Bar Association.4 4 It should be noted that in the Brazilian
U system ofjudicial review, cases canbebroughtto and judged by any judge
~ in the country-much as in the American system of judicial review-
but they can also, subject to certain conditions, be brought directly to
the STF, as in countries like Austria or Germany.45 In other words, the
STF can also operate as a constitutional court, in which capacity it can
2scrutinize norms enacted before the Constitution of 1988. This has an
o important outcome: when the STF operates as a constitutional court, its
findings are valid and binding for the whole Brazilian judicial system.

43. Paulo Abrdo et al., Justi~ade transipaono Brasil: o papel da Comissao de Anistia
do Ministrio da Justi~a, 1 REVISTA ANISTIA POLfTICA E JUSTIA DE TRANSI-
7J ,ko 14 (2009).
44. All the petitions and several other documents available at http://redir.stf.jus.
br/estfvisualizadorpub/j sp/consultarprocessoeletronico/ConsultarProces-
soEletronico.jsf?seqobjetoincidente=2644116 (last visited July 22, 2014).
45. The judicial review concerns analyses carried out by judges on the validity of
a legal norm per a constitution. An analysis of the Brazilian system of judi-
cial review can be found in MARCELO CATTONI, PROCESSO CONSTITUCIONAL
(2013); BERNARDO GON ALVES, CURSO DE DIREITO CONSTITUCIONAL (2015);
and, JULIANO BENVINDO, ON THE LIMITS OF CONSTITUTIONAL ADJUDICA-
TION: DECONSTRUCTING BALANCING AND JUDICIAL ACTIVISM (2010).
 Meyer
In ADPF 153, without any specific and concrete case in hand, the court .
was asked to reinterpret a statute previous to the Constitution of 1988
according to the new fundamental norm, using a kind of decision called
"interpretation according to the Constitution."46 The central argument
presented by the plaintiffs was that the Constitution of 1988 could not
tolerate a statute that gave amnesty to gross violations of human rights, 5
so it was necessary to review it in a different light.

IV THE BRAZILIAN SUPREMO

TRIBUNAL FEDERAL HOLDING IN
ADPF NO.153

The judgment finally took place on April 28 and 29, 2010.4'The STF .
always judges en banc. At the time of the judgment, two Justices didn't
participate: one was on medical leave (Justice Joaquim Barbosa) and the c
other recused himself (Justice Dias Toffoli), as he had already argued 8
the case for the government in his former capacity as Attorney-General 4
of the Union. The court rejected the plaintiffs' case by a 7-2 majority48 #
constituted by Justices Eros Grau (whose opinion was reiterated by sev-
eral Justices forming the majority, with some additional arguments),
Cirmen Liicia, Ellen Gracie, Cdzar Peluso, Gilmar Mendes, Marco
Aurdlio and Celso de Mello. The main opinions were delivered by Jus-

46. For a discussion of the kind of remedy used by the STF,see EMILIO MEYER, A
DECISikO NO CONTROLE DE CONSTITUCIONALIDADE (2008).

47. See Supremo Tribunal Federal [Brazilian Federal Supreme Court], Arguiqdo de
descumprimento de preceito fundamental no. 153/DF, Brazil, Supremo Tribu-
nal Federal (2010), available at http://redir.stf.jus.br/paginadorpub/paginador.
jsp?docTP=AC&doclD=612960 (last visted July 23, 2014).
48. The conclusion reached by
MEZAROBBA in her entry Brazil, in 2 ENCYCLO-
PEDIA OF TRANSITIONAL JUSTICE 71 (Lavinia Stan and Nadya Nedelsky eds.,
2013) (must be deemed mistaken: "In the document, the [Brazilian Bar] as-
sociation asked for a clearer interpretation of Article 1, as it wanted to know
whether the amnesty granted to perpetrators of so-called political and con-
nected crimes also applied to public agents accused of common crimes such v
as rape, forced disappearance and homicide. In 2010, the Court invalidated
the provisions of the Amnesty Law that prevented the sanctioning of severe
human rights violations.").
55
 Meyer
tices Eros Grau, Gilmar Mendes and Celso de Mello. Justices Ricardo
Lewandowski and Ayres Britto dissented.49
The court adopted a kind of judicial self-restraint, stating that any
revision of the Amnesty Law of 1979 should be made by the Brazilian
National Congress. In a very disputable way, it referred to certain holdings
of the Supreme Courts of Chile and Argentina. It wasn't mentioned
that the Chilean Supreme Court now recognizes a kind of "gradual
prescription" (i.e., limitation) to admitting that the responsibility of
those involved in repression by the state can be recognized, that is ruling
certain limits on the definition of punishments, but allowing them.5"
Nor was it stated that in Argentina there had been previous judicial
recognition-although by first-tier judges only-of the invalidity of
amnesty norms (punto final and due obedience) before the National
Congress abrogated those norms by means of the Argentinean Statute
Law no. 25.779 of 2003.51 In spite of the STF having decided on very
important issues in the previous 10 years-for example, the validity of
stem cell research, permission for the abortion of anencephalic fetuses,
and the validity of civil unions for homosexuals-in this specific case,
the court chose for a conservative human rights approach.
8 All concurring opinions, following that of Justice Eros Grau, tried to
stress that what had happened in 1979 in Brazil was a kind of "political
agreement" between the forces that held sway in the political arena and
the forces confronting state power, mainly those who understood that
C
49. There seems to be a little confusion on Schneider, supra note 35, at 49, because
the text mentions Gurgel as one of the STF's Justices; in fact, he was, at the
time, the Procurador-Geral da Repfiblica, i.e., the Head of the Federal Attor-
ney's Office (Procuradoria-Geral da Repfiblica). In his stance, he defended that
the law suit brought by the Brazilian Bar be denied by the STF.
C 50. See Karina Neira, Breve analisis de la jurisprudenciachilena, en relaci6n a las
graves violaciones a los derechos humanos cometidos durante la dictadura mili-
tar,8 ESTUDIOS CONSTITUCIONALES 467-88 (2010).
51. The Argentinean Supreme Court confirmed amnesties' invalidity in 2005, at
the end of the Simon Case that had been initially appraised by Judge Gabriel
Cavallo in 2001. See Corte Suprema de Justicia de la Naci6n [Argentinean Su-
preme Court], Simon, Julio Hector y otros s/ privaci6n ilegitima de la libertad,
etc, Causa no. 17,768, Fallos: 328:2056, S. 1767, XXXVIII (2005), available at
http://www.csjn.gov.ar (last visited July 12, 2012). See also, NAOMI ROHT-AR-
RIAZA, THE PINOCHET EFFECT: TRANSNATIONAL JUSTICE IN THE AGE OF Hu-
MAN RIGHTS 114 (2004).
 Meyer
an armed struggle was the only way forward. This "political agreement"
was seen as one of the main factors in the facilitation of Brazilian
transition and, as a result, it was not legitimate to undo this purported
deal. This was an incredible rewrite of Brazilian history.52 In fact, it is 2
well known that the dictatorship, using its repressive apparatus, had
already dismantled a great part of the armed political opposition. What
remained was a kind of consented opposition formed by the Brazilian .
Democratic Movement (Movimento Democrdtico Brasileiro-MDB).
From 1975 to 1979, several civil society groups argued on the streets
about the enactment of an amnesty law, hoping it would solve the >
problem of many political prisoners and people who were forced into
exile.
General Figueiredo, Head of State in that period, always saw the
amnesty act as a kind of "favor" given by his government to undeserving _-
opponents. In fact, a provision in the Brazilian Constitution of 1969 :i
(Article 57, VI) established that the president had the unique power to
send to the National Congress any bill discussing amnesty. The initial
bill was drafted by Justice Secretary Petr6nio Portella, who used the
phrase "connected crimes"-a phrase which had also been used in
previous Brazilian amnesty laws. In this way, as well as not explicitly
recognizing its own guilt, the regime approved an auto-amnesty. All
steps of deliberation in the National Congress were closelywatched over
by the government. All important legislative amendments proposed by
the congressmen were rejected and the bill favored by the government
and by more conservative groups was approved by a very tight majority.
As we can see, the idea of a purported "political agreement" is a
rejection of all these facts and also of another important one: in that
period, the slightest hint of amnesty was regarded as a boon by the
civil society groups who were pressing for a solution; in other words,
the presidential bill was better than nothing, which doesn't mean c
it was a negotiated agreement between the parties concerned. 53 It is
CD

52. For a critical perspective on that historical moment, focused on the social
movements calling for the enactment of the Amnesty Law (but, obviously, not
for the auto-amnesty), see Heloisa Greco, Dimens6es Fundacionais da Luta J
pela Anistia (2003) (unpublished PhD dissertation, Federal University of
Minas Gerais, on file with UFMG Library).
53. The situation at the time precluded any kind of fair compromise and that is
the reason why such a concept cannot be accepted today. As Schneider shows, 2-t
57 J
 Meyer

very problematic to hold, as the STF decision does, that the then so-
called "anistia ampla, geral e irrestrita" (wide, general and unrestricted
amnesty) meant a reciprocal or bilateral amnesty or even an auto-
amnesty; the Figueiredo Government didn't want such an amnesty, since
it planned to exclude some "blood crimes" supposedly perpetrated by
the political opposition from any amnesty. In fact, that is partially what
happened, as we can see in Article 1, paragraph 2, of the Amnesty Law,
as well as in other rules denying amnesty to certain military opponents
to the regime, such as those who had been finally condemned by
military courts.5 4 In any case, there is no doubt that the STF's obligation
to interpret that law in a sense required by the Brazilian Constitution
of 1988 and by the norms of International Human Rights Law cannot
be simply set aside. 5
One last argument wielded by the majority-above all in the
opinion delivered by Justice Gilmar Mendes-must be emphasized.
Assuming there had been a "political agreement" under the law, it was
mentioned that the text discussed by the court ("connected crimes") had
been explicitly taken up by Constitutional Amendment no. 26 of 1985,
which convened the National Constitutional Assembly of 1988. So, it
8 was argued, the Constitution of 1988 was founded on that "political
agreement" which meant it could not review the agreement; only a
new constitution would be able to review that deal. This was an attempt
to revive the traditional theory of the constituent power, but in a way
2 governed by suspicious limits. 56 We should add that Constitutional
C

supra note 35, at 43, it wasn't the case for a bilateral amnesty.
54. So, in 1979, right after the Amnesty Law approval, several political opponents
were amnestied, but many others, including those accused of "blood crimes'
had to wait for some years of judicial opinions extending the amnesty to them.
C 55. In a broader context, we should pay attention to the different ways by which
each legal order deal with amnesties in its transition. The fact that there is an
amnesty law simply does not mean that differences shouldn't be noted. "Al-
though I equate blanket amnesty laws with impunity, not all amnesty laws sig-
nal impunity." See SIKKINK, supra note 6, at 145.
56. In a very simplistic approach, the constituent power, first theorised by John
Locke and Emmanuel Siey~s, is the power detained by the people to establish
a new constitution to govern itself. We could embark on a discussion about
constituent power, but only if those alleged limits could be read as mere con-
ditions of possibility. See MICHEL ROSENFELD, THE IDENTITY OF THE CON-
STITUTIONAL SUBJECT: SELFHOOD, CITIZENSHIP, CULTURE, AND COMMUNITY
 Meyer
Amendment no. 26 of 1985, in Article 4, explicitly states that amnesty
should be granted only to those punished or prosecuted under the acts
57
of exception and the so-called institutional or complementary acts.
It is clear that, since none of the perpetrators were ever prosecuted 2
or punished under any law, they could not be considered eligible to
be amnestied. In conclusion, according to the majority who followed
this strange reading, the Constitution of 1988 would never allow .
the criminal judgment of public agents who had perpetrated gross
violations of human rights-for that to happen, another constitution
would have to be enacted.
The fact that two Justices dissented from the majority is noteworthy.
Their main argument was that the phrase "connected crimes" cannot 4
be interpreted to mean crimes perpetrated by public agents. These
agents could not fight the regime. How could their crimes be logically ,.
connected to the political crimes perpetrated by the regime's objectors? [
In fact, political crimes are those committed in order to fight the
government, not defend it. There could not have been any teleological >
agreement between those who fought and those who supported the o

regime. This opinion was founded in several precedents of the STF

itself.58
When analyzing the opinions of the court, we can initially conclude
that three things were left undecided. The first was mentioned by one
of the dissenting opinions: the fact that one norm (Article 8) of the
complementary part of the Brazilian Constitution of 1988 (the so-called 2
Act of the Constitutional Transitional Rules) had explicitly changed the
concept of what constituted an amnesty recipient, referring it only to n
those who had fought the regime or had been persecuted by it. This
constitutional rule could give a completely different meaning to the
Amnesty Law.59 Second, the court tried to distort several decisions of

(2010); JURGEN HABERMAS, TIME OF TRANSITIONS 113 (2006).

57. See Marcelo Cattoni, Anacronismos: descontruindo a ADPF 153 (2014) (un-
published manuscript, on file with the author).
58. For example, see Supremo Tribunal Federal [Brazilian Federal Supreme Court],
Extradiqdo no. 1.085 (2009), at 469-70, available at http://redir.stf.jus.br/pag-
inadorpub/paginador.jsp?docTP=AC&doclD=610034 (last visited July 23,
2014).
59. For an account on the concept of amnesty in Brazil and its multiple concep-
tions, see Paulo Abrdo and Marcelo Torelly, Transformaciones del concepto de 2-t
59 J
 Meyer

the IACtHR (as in the Almocinad Arellano Case, for instance), only
mentioning them when it seemed favorable to the view that the "two-
way amnesty" should prevail. It was said, for example, that the Brazilian
case was one of a reciprocal amnesty, not of an auto-amnesty. This latter
kind of amnesty had already been rejected by the IACtHR, but the STF
sustained that postulating a reciprocal amnesty, this court was free to
ignore the regional court decisions.
Third, the court was not consistent with its own decisions in cases
of extraditions required on the basis of the perpetration of forced
disappearance: it was already settled, in Extradition no. 974 (and the
same ruling would apply to another case after the judgment of ADPF
no. 153, the Extradition no. 1.150), that this kind of crime is deemed
to be continuously practiced until the fact is thoroughly investigated
or the whereabouts of the victim are definitely determined." Based on
4 this, the STF ruled in favor of the extradition of Argentinean military
officials. We can see that the court had no worries with the coherence or
c integrity of its judgments: in those extraditions, one before and the other
after the judgment of ADPF 153, it favored the claims of Argentina to
extradite officials accused of crimes perpetrated during its dictatorship.
S The discussion about statutes of limitations arose, but the Justices put
arguments like prescription aside considering the permanent nature of
the crimes of forced disappearance.

amnistia en la justiciade transici6n brasilena:la tercera etapa de la luchapor la

amnistia, 77 REVISTA JUECES PARA LA DEMOCRACIA 95-109 (2013).
o 60. See Supremo Tribunal Federal [Brazilian Federal Supreme Court], Extradiqdo
no. 974 (2009), available at http://redir.stfjus.br/paginadorpub/paginador.js-
p?docTP=AC&doclD=606492 (last visited July 23, 2014); Supremo Tribunal
Federal [Brazilian Federal Supreme Court], Extradiqdo no. 1.150 (2011), http://
redir.stf.jus.br/paginadorpub/paginador.jsp?docTP=AC&doclD=624223 (last
visited July 23, 2014). This account would only change in 2016, when the Court
refused to extradite the Salvador Siciliano, accused of crimes against huma-
nity, to Argentina. See Supremo Tribunal Federal [Brazilian Federal Supreme
Court], Extradiqdo no. 1.362 (2016), available at http://www.stf.jus.br/portal/
processo/verProcessoAndamento.asp?incidente=4629138 (last visited Dec. 15,
2016). See Case of Gomes Lund et al. v. Brazil, supra note 15.
 Meyer

V. INTERNATIONAL HUMAN RIGHTS

LAW IN BRAZIL: THE INTER-
AMERICAN COURT OF HUMAN
RIGHTS HOLDING ON GOMES LUND

A few months later the ruling of the STF would itself be judged by the -
IACtHR in the Gomes Lund Case." The case referred to events which
occurred between 1972 and 1973 in a central region of Brazil called N

Araguaia. Members of the Communist Party of Brazil (PCdoB) settled

in that region and started to build the basis of a possible rural guerrilla
campaign. They believed in the need for an armed fight against the
regime, whereas the former party did not. Around 70 partisans went
to that region. The civilian-military regime received information about
the guerrilla project and sent troops to Araguaia on three occasions.
If the troops' initial agenda was to arrest militants and try to collect
information, in the last operation it was clearly expected that no one
should be left alive.
In order to collect more information and to try to find the bodies :
of the partisans who died there, their families filed a lawsuit against
the Brazilian Federal Government in 1982, in a procedure that
lasted for decades. Based on the fact that there had been a denial of
jurisdiction, the families, backed by groups from Brazilian civil society
(as mentioned above), the Centre for Justice and International Law
(CEJIL) and the Human Rights Watch sued the Brazilian Government
in the Inter-American Commission of Human Rights. This procedure
lasted until March 2009, when the Inter-American Commission filed
a lawsuit against Brazil in the IACtHR. Although several Brazilian
Government officials argued that prosecutions for gross violations of
human rights should take place, others embraced the argument of the
"political agreement"; this would also be the prevailing argument in the
procedures before the court. In addition, it was alleged that the IACtHR
has no jurisdiction over events which took place before 1998, the year
in which Brazil signed the treaty recognizing the powers of the court.
The IACtHR ruled that the events which occurred in the Araguaia

61. See Case of Gomes Lund et al. v. Brazil, supra note 15.
61
 Meyer

region had been sufficiently proven. Sixty-two people had disappeared

there and, more than 38 years after this, nothing had been done by the
Brazilian Government to find the victims. Additionally, the enactment
of Statute Law no. 9.140 of 1995, recognizing deaths and disappearances
which occurred during the dictatorship, was itself proof of the facts.
The IACtHR also stressed the multiple violations of human rights that
forced disappearance entailed. It was clear to the court that, from the
point of view of criminal law, the crime of forced disappearance is
continuously practiced until the remains of the disappeared are found
or the whereabouts of the purported victims are determined. Forced
disappearance is, in this sense, a permanent or continuing crime. In
order to ensure the application of the American Convention of Human
Rights, States have the duty to investigate gross violations of human
rights. Discussing in a direct form the ruling of the STF, the IACtHR
criticized all arguments mentioned above and stated clearly that auto-
amnesty laws are invalid. There was no doubt, in the eyes of the court,
that the Brazilian Amnesty Law of 1979 was any different from an auto-
amnesty law. The Brazilian State had violated the rights of the victims
and their relatives to adequate judicial protection and to physical
&integrity.
The ruling of the IACtHR stated that Brazil must investigate,
prosecute against and judge all forced disappearances that had happened
in Araguaia. Several other measures were ruled on, including enabling
4 psychological treatment for the families of the victims, publicly
recognizing the responsibility of the state and establishing a reparations
program. So, in the context of the Inter-American System of Human
Rights, the Amnesty Law can no longer be an obstacle for investigating
and punishing gross violations of human rights committed during the
dictatorship.
a
 Meyer

VI. BRAZILIAN INSTITUTIONS AND

CRIMES AGAINST HUMANITY
Cn

'0
Some measures decreed by the IACtHR were put into place. The Brazil- 0
ian Federal Union paid reparations to some of the victims. It also tried 7.
to give publicity to the case, as ordered by the court, but that happened
in a very restricted way.62 Dealing specifically with the prosecutions that
should be promoted, Brazilian prosecutors (members of the Ministerio
Piblico Federal-Federal Attorney's Office), have defined a working
plan.63 The central argument of the proposed legal proceedings is the
same as that of the IACtHR: the forced disappearances are continuing 4
crimes. We should bear in mind that even the STF had embraced this C
thesis when it ruled the Argentinean Extraditions no. 974 and 1.150. ,
In that sense, 21 lawsuits have been proposed, but only five of them
have been initially accepted by individual judges; furthermore, some 2
habeas corpus were applied in federal courts to stop the proceedings >
from going ahead.64 This does not mean that the prosecutions which

62. The omission of Brazilian authorities before the JACtHR holding meant that "
another decision, supervising the accomplishment of the first one, was pub-
lished on October 17, 2014. The court clearly declared: "[o] Brasil ndo pode
opor decis6es adotadas no Ambito interno como justificativa de seu descum-
primento da sentenqa proferida por este tribunal internacional de direitos 7
humanos, nem sequer quando tais decis6es provenham do tribunal da mais
alta hierarquia no ordenamento juridico naciona[l]" (Translated by the author:
"Brazil cannot oppose holdings adopted in the internal order as justification
to the failure of the holding made by this international human rights court,
not even when those decisions come from the court of most high hierarchy
in the legal national order"). See Caso Gomes Lund e Outros ("Guerrilha do
Araguaia") vs. Brasil-Supervisdo de Cumprimento de Sentenqa [Gomes Lund
et. al. v. Brazil, proceeding control on holding accomplishment, Int.-Am. Ct. 2
H. R., at 12, available at http://www.corteidh.or.cr/docs/supervisiones/go-
mes 17 10 14_por.pdf (last visited Jan. 6, 2015).
63. See Procuradoria-Geral da Repfiblica [Brazilian Federal Attorney's Office],
Documento no. 2/2011, available at http://2ccr.pgr.mpf.mp.br/diversos/justi-
ca-de-transicao/documentoo202.pdf (last visited July 23, 2014).
64. The status of the procedures discussed below holds in December 2016 and can
be found here: https://cjt.ufmg.br/index.php/ditadura-e-responsabilizacao/
(last visited Dec. 10, 2016). The website link relates to the research project
"Ditadura e Responsabilizaqdo" developed by the Study Centre on Transitional o-
63
 Meyer

have been initially rejected have come to an end: several appeals to

higher tribunals were filed and the prosecutions should go on for at
least a couple of years. In brief, those suits may be taken forward if the
prosecutors appeal not only to Federal District Courts, but also to the
Superior Tribunal de Justiqa (Brazilian Supreme Court of Justice, STJ)
and, finally, to the STF itself.
Nonetheless, in the long and very complex Brazilian transition,
the mere fact of there being prosecutions that at least begin to discuss
criminal responsibilities in cases referring to the civilian-military
dictatorship is something to pay attention to. Interestingly, two of the
cases involve a military officer in Araguaia, but the others have to do
with forced disappearances which occurred in Sdo Paulo during the
repression of urban guerrillas. Notably, current Federal Attorney-
General Rodrigo Janot (the Head of the Minist~rio Pdblico Federal)
recently gave his opinion regarding the extradition of another
Argentinean officer: he stated that the crimes practiced in the civilian-
military dictatorship are crimes against humanity and, as such, cannot
expire.
One important point of view added by Brazilian prosecutors is
S that the crimes committed during the civilian-military dictatorship
are crimes against humanity and should be considered in this way to
prevent statutes of limitations. Despite Brazil not being a signatory of
the Convention on the Non-Applicability of Statutory Limitations to
War Crimes and Crimes Against Humanity, Brazilian prosecutors are
arguing there are several customary, jus cogens norms and obligations
erga omnes that should be respected, determining that the legal suits
must go on and responsibilities must be recognized.6 5 The IACtHR,

Justice of the Federal University of Minas Gerais, Brazil.

65. The Brazilian Federal Attorney's Office (the Minist~rio Pfiblico Federal) even
published a volume reporting on some of the filed suits and states that those
crimes in Brazil must be considered crimes against humanity. See RAQUEL
3
DODGE (ed.), GRUPO DE TRABALHO JUSTIA DE TRANSIQ kO: ATIVIDADES DE
3
PERSECU AO PENAL DESENVOLVIDAS PELO MINISTRIO PUBLICO FEDERAL
(2014), available at http://jornalggn.com.br/sites/default/files/documentos/
anexo 1- relatorio-justica de transicao - novo-l.pdf (last visited July 23,
2014). There are a few websites related to the Federal Attorney's Office which
host current data about the processes in Brazil, including evidence such as au-
dio recordings of testimonies, available at http://2ccr.pgr.mpf.mp.br/coorde-
nacao/grupos-de-trabalho/justica-de-transicao, (last visited July 24, 2014). All
 Meyer
except for the opinion delivered by Judge Roberto Caldas, ruled using .
the expression gross violations of human rights instead of crimes
against humanity. In adopting this last concept, Brazilian prosecutors
go beyond the regional court in order to build and reinforce an
international conception of rule of law which would bind transitional
justice processes. Beyond that, they can assume that any of those
crimes are subject to amnesty or prescription, legal barriers that could
be sustained in criminal procedures-and, finally, they try to avoid 5
confronting directly the STF holding in ADPF 153, since this decision
does not mention this kind of crime.
This argument was put forward in prosecutions discussing the 1971
disappearance of ex-federal representative Rubens Paiva and another 4
disturbing case of State terrorism imputed to the leftist movements
to avoid the transition (the Riocentro Case)-it should be noted that
the latter event happened in 1981, i.e., after the Amnesty Law. In both
cases, the Brazilian federal judges accepted the prosecutors' views. 3
In the Rubens Paiva Case, the 20 Federal District Court accepted the
arguments that the crimes committed were crimes against humanity. %
In another case, dealing with the forced disappearance of the political
opponent Hirohaki Torigoe, the 30 Federal District Court also decided
in favor of the argument.

VIi. THE BRAZILIAN SUPREMO R

TRIBUNAL FEDERAL BEFORE A NEW
CHALLENGE

The STF was once again called into action by means of a lawsuit. The
Socialism and Liberty Party (Partido Socialismo e Liberdade-PSOL) ;
brought ADPF 320 to the STF, filed in May 2014. Their plea was that
Brazilian governmental institutions should be compelled to comply :
with all 12 items cited in the judgment delivered after the Gomes Lund
Case. As stated earlier, the Amnesty Law is not an obstacle to prosecu- D
tions or condemnations of state agents for gross violations of human ct

of these data are interesting to compare with those quoted in Lessa et al., supra
note 33, at 86.
65
 Meyer

rights-any violations whatsoever, and not only forced disappearances,

occurred during the Araguaia Guerrilla.
A formidable change came about after the participation of Federal
Attorney-General Rodrigo Janot. As we have mentioned, during the
ADPF 153 procedures, Federal Attorney-General Roberto Gurgel was
against the Federal Bar Association's demand; this time, the current
Federal Attorney-General had a very different perspective and gave
complete support to the thesis held by lower-level prosecutors.66
Although he did not agree with all the demands put forward by the
PSOL, he asserted that, in fact, all crimes committed by the repression
were crimes against humanity-so not only forced disappearances, but
also other crimes, should be investigated and brought to justice. This
wider vision of the Gomes Lund ruling shows that Brazilian institutions
(prosecutors, some judges and tribunals and truth commissions)
are slowly changing their perception of the nature of the crimes
committed by the dictatorship; but this will only happen if the Brazilian
Constitution is seen as an ongoing process, continuously subject to
new interpretations, particularly those interpretations formed by
international human rights law. It is not the case that constitutional or
% legal interpretation made by legal institutions has a unique role here:
more than that, all of those transformations are due to civil society
groups applying pressure. The fighting from the victims' families,
which led to Brazil's condemnation in the Gomes Lund Case, shows
that if this kind of pressure weren't applied, much of the transformation
o would not happen.
- So, after 2007, it became impossible to set the criminal responsibility
& for dictatorship's crimes issue aside. But even now, in 2016, Brazilian
prosecutors have to face judges who are not familiar with international
human rights law and its provisions. The current Federal Attorney-
o General has the advantage of having argued for the characterization
of Brazilian dictatorship crimes as crimes against humanity-and, as
~ such, as imprescriptible-before Brazil's highest court. This is crucial
not only in the particular context of ADPF 320, but also for society as a
whole, which will have to deal again with the debates in question.
The Federal Attorney-General's arguments can be summarized as

66. His opinion available at http://www.stf.jus.br/portal/processo/verProcessoPe-

ca.asp?id=5102145&tipoApp=.pdf (last visited Nov. 17, 2014).
 Meyer
follows: a) the ADPF 153 holding was an instance of constitutionality .
control; the Gomes Lund ruling was an instance of conventionality
control-that is, the STF would have to deal with a comparison of the
Amnesty Law with the Constitution, as the IACtHR would compare the 2
Amnesty Law with the American Convention of Human Rights;6 b)
Brazil recognized the American Convention of Human Rights and the
jurisdiction of the IACtHR;6 s c) in view of these facts, not giving effect
to the Gomes Lund decision is tantamount to unilaterally derogating n
those treaties; d) the Brazilian Constitution of 1988, in Article 7 of the
Transitory Constitutional Provisions Act, states that Brazil will be party
to an international human rights court; e) the Gomes Lund decision
expressly holds that provisions of the Amnesty Law can no longer be P,
an obstacle to investigating and prosecuting gross violations of human o
rights; f) forced disappearances or kidnappings where the victims
were not found and the whereabouts of whom remain unknown
are continuous crimes, voiding any recognition of prescription or
amnesty in the way determined (in the latter case) by the Brazilian
Amnesty Law; g) acts committed during the Brazilian dictatorship that
constituted crimes under domestic law and under customary norms
of international human rights law are crimes against humanity and, as
such, are not subject to any form of prescription (limitations).
FL

67. This argument seems to be same as can be found in Paulo Abrdo and Marcelo
Torelly, Resistance to Change: Brazil's PersistentAmnesty and its Alternativesfor
Truth and Justice in AMNESTY IN THE AGE OF HUMAN RIGHTS ACCOUNTABIL-
ITY: COMPARATIVE AND INTERNATIONAL PERSPECTIVES i8o-8i (Francesca
Lessa & Leigh Payne eds., 2012).
68. Decrees no. 678 of 1999 and 4.463 of 2002.
67 i
 Meyer

VIii. AN EXTRA INSTITUTIONAL

REINFORCEMENT: THE NATIONAL
TRUTH COMMISSION REPORT

In many transitional justice cases, justice comes after truth. When it

started its work, the NTC, through some of its commissioners, made
statements guaranteeing that the Amnesty Law would not be ques-
tioned by its investigations. However, the final report clearly stated
that there was a structure used to systematically commit crimes against
the civil population-be they Brazilians or foreign nationals, as Brazil
made part of Operation Condor.69 The NTC report expressly declares
J that several international treaties were established when many of the
violations of human rights happened under the Brazilian dictatorship
(for example, the Geneva Conventions of 1949); more than that, it
states thatjus cogens norms already treated those acts as crimes against
humanity. Considering the general, broad and systematic way in which
such gross violations of human rights were carried out, the NTC report
recommended that the competent authorities investigate the civil, ad-
-d ministrative and criminal responsibility of public agents that practiced
. gross violations of human rights, putting aside the supposed effects
of the Amnesty Law of 1979, alongside other constitutional or legal
norms. 0
It should be added that the STF suspended two processes against
perpetrators, on the basis that it should, as a first step, finally decide
that the controversy between the IACHR ruling and the ADPF 153
a- decision-plus the necessity of a decision in the ADPF 320. The
.5 suspended decisions were made in the cases of Rubens Paiva and
another one involving a famous perpetrator, Colonel Ustra, accused of
7 the disappearing of the political opponent Edgar Aquino Duarte. Those
decisions show that Brazil faces a situation in which Sikkink's justice

69. The Operation Condor was a coordinated repression plan set by several coun-
tries in the Southern Cone America, including Chile, Argentina, Brazil, Boliv-
ia, Paraguay and Uruguay, aiming at the political opposition. See ROHT-AR-
RIAZA, supra note 50, at 150.
70. See Comissdo Nacional da Verdade [Brazilian National Truth Commission],
supra note 19, at 965.
 Meyer
cascade is much more adequately apprehended in a sense of forming
an institutional dam evolving several institutions that seem to create -

pressure against Judiciary institutions.

So, alongside the Federal General Attorney position and the
National Truth Commission Report recommendations, one cano
add the clear positions for treating the crimes of the dictatorship as
crimes against humanity sustained by the Amnesty Commission."
All of those positions create a paradigm that would make it very hard
to the STF to maintain its former perspective. Brazil is now situated
in a scenario of the so-called contamination case of the Americas, at
least, for now, involving several non-Judiciary institutions and a few
belonging to this branch; the problem with the "country-prosecution
years" would not appear, since the Judiciary could assume both thesis
of the continuous character of the crimes of forced disappearance and -
the imprescriptibility attained to crimes against humanity; the NTC :i
Report is clearly contributing to the last thesis; the increase of the
Political Terror Scale (PTS) is an enduring issue in Brazil and criminal
individual liability could cooperate to avoid the general sense of o
impunity.
In 2011, Kathryn Sikkink provided a diagnosis of the whole of Latin :
America that cannot be simply applied to Brazil. 2 The relationship o
between military and civilian leaders is still a huge problem; 73 beyond
that, there are few reasons in the Judiciary branches to say that Brazil is
part of a wave of human rights prosecutions. The opposition between 2
truth and justice, and prosecutions and democracy stood for a long

71. This position appears in cases like the one evolving a requirement by a past po-
litical opponent and then regime's supporter, the infamous Cabo Anselmo. See
Alexandre Rezende, Governo nega indenizagdo a Cabo Anselmo, FOLHA DE S.
PAULO, http://www1.folha.uol.com.br/fsp/poder/44502-governo-nega-inden-
izacao-a-cabo-anselmo.shtml.
72. See SIKKINK, supra note 6, at 159 and 161. "In Latin America, countries have
not had to choose between truth or justice, peace or justice, or between pros-
ecutions and democracy. Instead, they have faced more complex issues, such
as under what conditions can prosecutions contribute to improving human
rights; under what conditions can they contribute to enhancing rule of law sys-
tems; and what sequencing or combination of transitional justice mechanisms
can help build democracy and resolve conflicts."
73. See Comissdo Nacional da Verdade [Brazilian National Truth Commission],
supra note 19, at 63. 2-"
69 i
 Meyer

time in the Brazilian agenda. Still, it seems that we now have different
elements that can push the Judiciary into a new way.

IX. CONCLUSIONS

It is worth noting that the legal proceedings related to ADPF no. 153
have not come to an end. There is still an appeal to be judged by the
STF: the appeal takes the decision of the IACtHR in the Gomes Lund
Case to the STF and asks for a review of the latter's decision in the light
of the contradictions mentioned therein. To that must be added ADPF
320. We were able to see that, institutionally, changes had been made in
Brazil, inside and outside the Judiciary.
Furthermore, it should be noted that certain events, such as the
50th anniversary of the Brazilian 1964 military coup and the activities
of the NTC and other commissions, have gained space in media and
public opinion. On March 31, 2014, the Folha de S. Paulo newspaper
published an inquiry in which members of the public were asked if
& those who tortured political prisoners during the dictatorship should
be punished. For the first time in Brazil's history, a majority (46%)
o= answered in the affirmative. 41% answered negatively and 13% showed
indifference or did not know what to say. Criminal responsibility for
crime against humanity seems to be recognized as an important tool to
avoid repetition and ensure human rights."
This article has shown that the interpretative character of law in
general, and of constitutional norms in particular, has the potential
of taking into account certain normative demands of international
human rights law that may seem odd in some periods of the transitional
6 process. That is why a constitutional project has an important role in
the path where transitional justice can happen. 76 Even when a long-

74. See Ricardo Mendonqa, Major Parte da Populapao quer Anular Lei da Anis-
tia, aponta Datafolha, FOLHA DE S. PAULO (Mar. 31, 2014), available at http://
wwwl.folha.uol.com.br/poder/2014/03/1433374-maior-parte- da-populacao-
-quer- anular- lei- da- anistia- aponta- datafolha.shtml (last visited July 24, 2014).
75. Of course, the question is if the new conservative agenda that took place in
Brazil in 2016 succeed, the inquiry result would be different.
76. In the Simon Case, the Argentinean Supreme Court used as one of its argu-
70
 Meyer
term transitional justice is in place, we cannot speak of overcoming .
transitional processes: institutions and civil society groups should go
on dealing with a past that defines identities and becomes an arena
for political and legal disputes over the sense of a constitution. What
is more important in this field is that discussions be directly informed
by an international human rights core. The new lawsuits promoted
by Brazilian prosecutors have changed the landscape, and the Federal
Attorney-General's position on the new ADPF 320 seems to show
that a long-term transitional justice process can subject the very same
Constitution of 1988 to international human rights law, creating a newN
way of dealing with facts that, although they are in the past, have by no
means been overcome.
This institutionalized scenario is complemented by the work of the 2
NTC. Its final report was capable of reflecting the same doctrine that
considers the gravity of the crimes carried out during the Brazilian
dictatorship. If the work of the truth commission was limited, it gave,
nonetheless, a huge contribution to prosecutions. It is, nevertheless,
important to again note that this institutional effort has only occurred o
due to pressure applied by those directly or indirectly effected by the
gross violations of human rights: political opponents, victims, their
families and human rights activists. However, the obstacles in Brazil 8
remain with the Judiciary branch, constantly refusing to accept the new
international human rights paradigm.

ments the constitutionality of the Statute Law no.25.779 of 2003, which nulled
the statutes of "due obedience" and "final point:' the fact the alteration in Ar-
ticle 25, number 22, of the Argentinean Constitution made it possible that the
International Human Rights Law could be enforced in that country against
auto-amnesty or blanket amnesty laws (Corte Suprema de Justicia de la Naci6n
[Argentinean Supreme Court], Simon, Julio Hector y otros s/ privaci6n ilegi-
tima de la libertad, etc, Causa n' 17,768, Fallos: 328:2056, S.1767, XXXVIII
(2005), http://www.csjn.gov.ar (last visited July 12, 2012), at 27-28). This is an
important consideration in terms of what was changed in the positive law and
we must add to it the force ofjus cogens and customary law.
71 '
Meyer

View publication stats