There is Still Time to Judge the Crimes of the Dictatorship
By Eugênia Augusta Gonzaga* and Marlon Alberto Weichert*
The Supreme Federal Court has decided to reconsider the responsibility for the crimes committed by the military dictatorship. This does not seem to be a mere coincidence with the success of the wonderful film Ainda Estou Aqui (I’m Still Here) by Walter Salles Filho. But knowing whether it was the film or another fact is not so important, since what is important is to overcome the constant refusal of the judiciary to deal with the legacy of the authoritarian regime that governed the country from 1964 to 1985.
Since 2008, the Federal Public Ministry (MPF) — based on the initiative of the signatories of this article — has sought to advance the transitional justice process in Brazil. Based on the pillars of promoting justice for serious human rights violations, revealing the truth, making reparations to victims, recovering and disseminating memories, and reforming the agencies and entities that promoted or were complicit in the coup d'état and political repression, transitional justice seeks to help society overcome a legacy of serious human rights violations. The goal is to strengthen the democratic rule of law and ensure that these serious violations do not recur. That year, we began, almost alone, investigations and demands for criminal and civil justice against the perpetrators of serious crimes committed during the military regime, which we consider to be crimes against humanity. It was only in 2010 that the matter was institutionally prioritized by the MPF, when the MPF's Criminal Matters Coordination and Review Chamber, under the management of Raquel Dodge, made holding the main criminals of the dictatorship period accountable as one of its priorities. This decision was the result of Brazil's conviction in the Gomes Lund (Araguaia Guerrilla) case at the Inter-American Court of Human Rights, which declared the 1979 Amnesty Law invalid and the inapplicability of statutes of limitations for crimes that constitute serious violations of human rights.
In the same year, weeks before the Inter-American Court's decision, the Supreme Court plenary had ruled on the Claim of Non-Compliance with a Fundamental Precept (ADFP) No. 153, proposed by the Federal Council of the Brazilian Bar Association (OAB) following the repercussions of the investigations we had been conducting since 2008. The Supreme Court, in a chapter that differed from its fine history of defending fundamental rights after the 1988 Constitution, decided by majority vote that the 1979 Amnesty Law was valid and, therefore, that the punishment of agents of repression could not be demanded. However, there was no final judgement on ADPF No. 153, as the OAB filed an appeal, which has not yet been considered.
In 2011, the Socialism and Liberty Party (PSOL) filed a new ADPF (No. 320), asking the Supreme Court to review its understanding to adapt it to the ruling of the Inter-American Court of Human Rights. ADPF 320 received a substantial opinion from the then Attorney General of the Republic Rodrigo Janot, which reaffirmed what we have been arguing since 2008. First, the dictatorship has committed crimes against humanity in Brazil and these crimes have no statute of limitations and are not subject to the amnesty law. Second, cases of forced disappearances – crimes that involve kidnapping victims, torturing them, killing them, hiding their body, denying their whereabouts, and falsifying documents to support this denial, as occurred with Rubens Paiva and at least 200 other people – are ongoing crimes, that is, until the victims' remains are found or their whereabouts are definitively confirmed, they are ongoing.
Thus, ongoing crimes were not covered by the Amnesty Law (if we admit, for the sake of mere mental exercise, that it was valid), since the law explicitly defined that it benefited crimes committed up to August 15, 1979. Likewise, they are not statute-barred, since it is not even possible to state when the murder or the end of the kidnapping occurred. ADPF 320 has not yet been judged by the Supreme Court. It is being processed together with the appeal of ADPF 153 by Justice Dias Toffoli.
In 2018, the Inter-American Court ruled on another case involving the Brazilian dictatorship. It involved the failure to promote justice for the torture and murder of Vladimir Herzog. The international court reaffirmed its 2010 decision that the amnesty law and statute of limitations were invalid, and recognized that the Brazilian dictatorship committed crimes against humanity, one of the four international crimes recognized by the International Criminal Court. These crimes, even when committed, do not admit impunity, due to their intrinsic gravity. They must be investigated, prosecuted, judged, and punished without being subject to amnesty or statute of limitations rules.
Brazil, under the terms of the 1988 Constitution and the American Convention on Human Rights, recognized the jurisdiction of the Inter-American Court in 1998. Based on this recognition, all Brazilian state bodies – including the Judiciary and the Public Prosecutor's Office – are obliged to respect and apply the decisions of the Inter-American Court. The Federal Public Prosecutor's Office understood that it was its obligation to comply with the Inter-American Court's rulings in the Gomes Lund and Herzog cases. Despite the STF's decision in ADPF 153, it continued to investigate and prosecute the crimes of the dictatorship. Thus, to date, it has initiated 56 criminal proceedings against 79 agents of repression. The vast majority of cases were not accepted by the judges, due to the Supreme Court's decision in ADPF 153. However, some judges and courts understood the Federal Public Prosecutor's Office and, adopting the force of the Inter-American Court's decisions, accepted the cases. These, after all, also ended up being closed by the Supreme Court or the Superior Court of Justice, always under the pretext of ADPF 153, the amnesty law, and the statute of limitations.
It is in this context that the Supreme Court, on the initiative of Justices Flávio Dino and Alexandre de Moraes, announced the decision to judge four of the appeals that were pending in criminal actions initiated by the Federal Public Prosecutor's Office in Pará, São Paulo and Rio de Janeiro. The appeals will be assessed under the general repercussion rule, which has binding force for other similar cases. Justice Edson Fachin recently decided to schedule two other cases for judgment. He will probably submit them to the same general repercussion procedure.
Pariah of the continent
So far, the general repercussion has been defined by Justice Flávio Dino to assess the thesis of an on-going crime in cases of forced disappearances. Justice Alexandre de Moraes has expanded the topic to re-discuss the validity of the Amnesty Law in cases of any crimes committed with serious violations of human rights. Justice Moraes rightly highlights that the Constitutional Courts of other countries, such as Argentina, Chile, and Uruguay, have reviewed previous decisions that guaranteed impunity to perpetrators of serious human rights violations. In fact, Brazil is currently the only country on the continent that does not follow the jurisprudence of the Inter-American Court on this matter. In Central and South America, practically all countries were involved in civil wars and dictatorships in the 1970s and 1980s. As in Brazil and its neighbors, laws with self-amnesties were approved and impunity recognized.
However, following the understanding established by the Inter-American Court since its first ruling in 1988, the courts and governments of these countries have declared the impunity laws invalid. It is no exaggeration to say that the Supreme Court now has the opportunity to remove Brazil from its position as a pariah on the continent and a refuge for torturers and political assassins.
At the same time, it is important to highlight that the theses of general repercussion approved so far have failed to expressly mention the debate on the definition of the crimes of the dictatorship as crimes against humanity and on the exemption because of statutes of limitations. Although these issues are implicitly contained in the discussion already raised by Dino and Moraes, it would be very important for them to be expressly included in the argument about general repercussion to definitively overcome arguments in favor of impunity.
No matter how important and successful the Supreme Court's move may be, it will not be able to reverse the impunity that has arisen over time. The delay in addressing this legacy has meant that a substantial number of torture victims and family members of the dead and disappeared have passed away. Likewise, a large portion of those investigated and accused have also died without being held accountable for their actions.
Even so, it is timely and necessary to move forward with the charge of criminal liability. It serves at least an educational and preventive function. In fact, we have no doubt in stating that if the Supreme Court had decided differently on ADPF 153, it itself would not have been the victim of attacks carried out by military personnel against the institution and its ministers in the 2022/2023 coup attempt. By admitting that perpetrators of crimes against humanity should remain unharmed from legal action, the Supreme Court encouraged the conduct that ended up affecting it.
Nonetheless, in solidarity with the Paiva family and all the other victims of these horrendous crimes, which go far beyond those related to on-going crimes, we are still here in the hope that the Brazilian Supreme Court can review this history and make another contribution to the defense of the democratic rule of law.
*Eugênia Augusta Gonzaga is a regional attorney for the Brazilian federal government. She holds a master's degree in Constitutional Law from PUC-SP, is a pioneer in legal actions to hold agents of the dictatorship accountable, and is the president of the Special Commission on Political Deaths and Disappearances.
**Marlon Alberto Weichert is a regional attorney for the Brazilian federal government. He holds a master's degree in Constitutional Law from PUC-SP, is a pioneer in legal actions to hold agents of the dictatorship accountable, and is the coordinator of the Working Group on Memory, Truth, and Defense of Democracy of the Federal Attorney's Office for Citizens' Rights.
This article was originally published in the Conjur website on March 11, 2025, and was kindly provided by the authors for reproduction in the WBO (Washington Brazil Office).
