Features

November 10, 2008

Legal Challenge to Amnesty in Brazil

• Background
• The Case
• ICTJ Technical Brief
  

BACKGROUND
On September 15, 2008, ICTJ submitted a technical brief in support of a civil suit brought by the Office of the Prosecutor in Sao Paulo, Brazil, against two former officials of Brazil's military regime and the central government. The suit, initiated in May 2008, is the first to challenge the validity of a 1979 amnesty granted by the military regime to perpetrators of politically-motivated crimes. Although ostensibly granted to opponents of the regime, the amnesty was subsequently interpreted to include perpetrators of abductions, torture and executions committed in the name of the regime.

During the presidency of General Emilio Medici, from 1969 to 1974, now known as the "years of lead," the regime established the Operational Centers of Interior Defense (CODI) and the Task Forces of Operations and Information (DOI)--usually referred to as DOI-CODIs. These units launched raids and strikes against armed insurgents and individuals suspected of sympathizing with them. Their targets included students, intellectuals and union leaders. An estimated 400 people were killed or "disappeared," and significantly greater numbers were detained and tortured or forced to flee to escape persecution.

Brazil, unlike other South American countries having made the transition from dictatorship to democracy, has not pursued an official truth commission and there have been no civil or criminal proceedings against former leaders of the regime.

In 1995 the central government established the Special Commission on Political Deaths and Disappearances (CEMDP) to provide financial compensation to relatives of victims and survivors, and in 2001 it established a reparations commission to provide compensation to victims of lesser offenses.

The work of these commissions has been limited to providing monetary relief; neither commission has undertaken investigations into the crimes. Such investigations pose serious difficulties because government records pertaining to the crimes are still closely guarded by the armed forces. Moreover, existing legislation places significant restrictions on public access to the records.

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THE CASE
Following the publication in August 2007 of The Right to Memory and Truth, a report prepared by the Human Rights Secretary of Brazil about the abuses committed under the military regime, the Office of the Prosecutor in Sao Paulo decided to pursue a case against Carlos Ustra and Audir Maciel, two former commanders of the task force that operated in Sao Paulo in the 1970s.

The prosecutors have charged Ustra and Maciel with torture, illegal imprisonment, murder and forced disappearances in a civil suit. The prosecutors are seeking relief in the form of judicial declarations of Ustra and Maciel's personal responsibility and declarations of the responsibility of the Brazilian government to redress the crimes of the past and its failure so far to do so. In addition, the prosecutors are seeking the declassification of all documents relating to the victims of Sao Paulo and to the task forces that operated there.

The central government argues that the 1979 amnesty should be respected, and that under its terms Ustra and Maciel are immune from suit for their alleged acts. The government further argues that at the time of the commission of the alleged acts Brazil had not ratified any international agreements prohibiting the use of torture. The government argues that the case should be dismissed on the procedural ground that the statute of limitations with respect to the alleged acts has expired.

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ICTJ TECHNICAL BRIEF
In its technical brief (PDF versions available in Spanish and Portuguese), submitted at the request of the Office of the Prosecutor, ICTJ argues the following:

• The crimes allegedly committed under Brazil's military regime--including murder, kidnappings, torture and denying information about the whereabouts of persons--are inhumane acts, committed in a systematic manner against the civilian population and are therefore constitutive of crimes against humanity.
  
• International law does not admit the application of a statute of limitations to crimes against humanity, a principle recognized long before the entry into force of instruments such as the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity (1970).
  
• Brazil is legally obligated to investigate and punish the alleged crimes committed by agents of the former government.
  
• Self-amnesties that hinder the ability of the state to investigate and punish crimes against humanity are contrary to the international legal obligations of Brazil.

ICTJ will continue to follow developments in the case and provide assistance to the Office of the Prosecutor in this first step toward holding the perpetrators of human rights abuses under Brazil's military regime legally accountable.

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