15 years ago, STF decided that forgiveness to military crimes was compatible with the Constitution; New arguments against the law can be tried by the court in 2025, in the wake of the success of ‘I’m still here’
The Rubens Paiva case is far from over. That’s what Marcelo Rubens Paiva, son of the former federal deputy, on the last page of I am still here, 2015. Nine years since the book’s release, the phrase has not aged. So much so that, in adapting to Walter Salles’s theaters, a message shown at the end of the film recalls the viewer that the five defendants of the case have not yet been punished.
The Criminal Action of the Paiva case has been locked since September 2014. An injunction of the then Minister Teori Zavascki of the Federal Supreme Court (STF) considered the process “incompatible” with the Court’s understanding of amnesty law. In April 2010, the Supreme Court judged that the forgiveness of the dictatorship of military crimes was compatible with the Constitution. Thus, the facts investigated in the Paiva case would already be forgiven.
With the success of Salles’s film, the first Brazilian feature to win an Oscar, the revision of the Amnesty Law should return to the STF’s agenda in 2025. The ministers will decide whether the 1979 forgiveness is extended to permanent crimes, such as the cases where forced disappearance and corpse concealment.
This argument has given new vigor to claims in the Supreme for revisions in the Amnesty Law and is embedded by a decision of an international court. The result of the new judgment may unleash not only the Paiva case but other processes involving missing and killed during the dictatorship.
How was the judgment of the Anesty Law review?
The amnesty of the military dictatorship was sanctioned by João Figueiredo, the last of the “Presidents-General” in August 1979. While allowing the return to the political scene of opponents of the regime, the norm created a legal shield for agents of repression to be processed by the crimes of “lead years”.
Continues after advertising
In October 2008, the Brazilian Bar Association (OAB) questioned in the Supreme Court the adequacy of the amnesty law to the Constitution. Jurist Fábio Konder Comparato argued that, by forgiving injury to injury, such as murders and torture perpetrated by public agents, the law was constitutional principles, such as the dignity of the human person.
Comparato was a professor of law at the University of São Paulo (USP). Human Rights activist, was one of the lawyers of the action that held Colonel Carlos Alberto Brilhante Ustra for the death of journalist Luiz Eduardo Merlino, killed under the DOI-Codi of São Paulo in July 1971. In 1992, Comparato was one of the authors of the impeachment request that eventually testified the then President Fernando Collor.
The OAB questioned the amnesty law through an argument of non -compliance with a fundamental precept (ADPF). In this type of action, the Supreme Court analyzes whether a rule prior to the Constitution violates the principles of the country’s legal order.
Continues after advertising
The amnesty of the Military Government granted forgiveness “to all who, in the period between September 2, 1961 and 15 August 1979, committed political crimes or related to them.” Regarding “related” crimes, the law considered, for its purposes, “crimes of any kind related to political crimes or committed for political motivation”.
This writing was the core of the action proposed by the OAB. The entity argued that the stretch intended, in a “obscure” way, to guarantee impunity to the crimes committed by the repression of the military regime. In this sense, a “self amnesty” would be characterized, that is, a government forgiving itself for its own crimes.
In addition to the “obscure” claim, the OAB requested the ineptitude of the term “related crimes”. According to the entity, the definition established in the law was inconsistent from the conceptual point of view, because related crimes, in the jargon of law, are those committed in communion of interests or objectives with another offense. In the present case, it could not be said that the agents of repression were in communion with the interests or objectives of the regime’s opponents.
Continues after advertising
“We tried to demonstrate, at that time, that the term ‘connection’ is a technical term, it is a term provided for in the legislation and none of the hypotheses of connection extending the amnesty to the agents of the military dictatorship,” said criminalist Pierpaolo Bottini, who participated in the ADPF judgment as representative of the Judges Association for Democracy.
The then Minister Eros Grau disagreed with the arguments presented. The rapporteur assessed that the practical effects of the law – the impossibility of prosecuting military crimes – were not only known but paved the country’s redemocratization process. In this sense, there was no “obscurity” under the terms of the norm, and the law was not a “self -amnesty” but a “agreed amnesty” between government and opposition.
Regarding the ineptitude of “related crimes”, grade understood that the terms of amnesty law should be interpreted under the context in which the norm was sanctioned. Considering the law as a “pact” between federal government and opposition, the rapporteur assessed that, in that historical context, “connection” extended to the crimes of agents of repression. The rapporteur was followed by 7 votes to 2.
Continues after advertising
Bottini regrets the result of the trial, in which, according to him, a “political reading” of the Supreme Court prevailed regarding the 1979 historical context. Who also disputes the thesis of the “pact” by amnesty is Carolina Cyrillo, professor of constitutional law at the Federal University of Rio de Janeiro (UFRJ) and coordinator of the Inter -American Human Rights Center (NIDH). According to Carolina, the notion of “pact” suggests an amnesty consented to the opposition, despising the circumstances of the political moment. “It was not a transaction between equals,” said the lawyer. “How can I say that the whole society agreed if we didn’t even have democratic elections when this law was done?”
Fábio Konder Comparato also complains about the judgment. According to the jurist, the court did not take into account the nature of crimes considered “related” to politicians.
“(The Amnesty Law), in fact, was imposed by the military regime. And to this day, there is no conclusion. Amnesty has been given solely to the perpetrators of crimes committed during the military regime. These are not just political crimes. They were crimes against humanity,” Fábio Comparato told the Estadão.
Continues after advertising
Comparato is retired from law. At 88, it is no longer his routine to follow procedural deadlines, but the jurist awaits the process of one last action. It is ADPF 320, subscribed by PSOL in 2014 and signed by the lawyer. The “asset” of the new petition is a trial of an international court that condemned Brazil.
The Gomes Lund Case
In November 2010, the Inter -American Court of Human Rights condemned Brazil in the Gomes Lund case, also known as the “Araguaia Guerrilla”. The process is entitled by the name of Julia Gomes Lund, mother of Guilherme, one of the missing students in the guerrillas.
The sentence determines that the country recognizes the criminal type of forced disappearance, giving this crime a permanent character, for which there is no prescription or effect of forgiveness.
During the process, Brazil argued that it could not investigate the case due to the amnesty law. The Inter-American Court countered the allegation and pointed out that the country, as a signatory to the American Convention on Human Rights, cannot use internal rules to prevent investigations into injury-to-human crimes.
“The provisions of the Brazilian Amnesty Law that prevent the investigation and sanction of serious human rights violations are incompatible with the American Convention, lack legal effects and cannot continue to represent an obstacle to investigating the facts of the present case,” says an excerpt from the decision.
What can change in 2025
The Amnesty Law has a period of defined incidence, forgiving the crimes committed from September 1961 to August 1979. The Supreme Court must decide whether, in the case of permanent crimes, there is the extrapolation of the timeframe defined by law.
The Supreme can judge the theme both in the ADPF filed by PSOL and in the resources with general repercussion status. As showed the Estadãothe repercussion of I am still here propelled cases of missing during the dictatorship. Since the release of the film in September 2024, case procedures such as Rubens Paiva and Araguaia Guerrillas have gained traction.
The removal of amnesty would be one less obstacle, but the processes would still face other problems, such as the difficulty of collecting documentary evidence and testimony.
Carolina Cyrillo evaluates the practical effects of the Amnesty Law have already been consummated. The text prevented investigations from occurring shortly after the end of the regime, a period that would be crucial for gathering information about dictatorship crimes. “In practical terms of criminal proceedings, there is no way to condemn people,” Carolina said.
For Pierpaolo Bottini, the removal of amnesty is more important than any convictions. “It is one thing not to punish why the person died, or because the crime has prescribed. Another thing is not to punish because you forgave or anonistic that person,” said the lawyer. “For Brazilian society, it is very important that it is clear that these crimes have never been forgiven, they have never been amnesty.”
The cases are ready to be guided, but have not yet been judged by the rapporteurs. The rapporteur of the Araguaia guerrilla appeal is from Flávio Dino, while the Paiva case is reported by Alexandre de Moraes and the PSOL ADPF for Dias Toffoli.
