For the jurist and emeritus professor at the USP Faculty of Law (University of São Paulo), the current movement for the approval of an amnesty to those involved on January 8 and the coup plot, such as former President (), is an attempt to repeat the Amnesty of 1979.
He, who signed an action by the Brazilian Bar Association (OAB) in the (Supreme Federal Court) maintaining that the Amnesty Law could not prevent the punishment of crimes against humanity perpetrated in, also sees in the present measure a defense of impunity.
Comparato also defended, in an interview with Sheet By email, that crimes against the Democratic Rule of Law cannot be forgiven and that if an amnesty approved in this regard, it would be unconstitutional.
A reference in human rights, he also acted on behalf of relatives of the dictatorship dead and missing and says he does not believe that the current composition of the Supreme would return “to conform to a possible suppression of public freedoms.”
Like mr. See the movement for the approval of an amnesty those involved in the attacks of January 8, former President Jair Bolsonaro and other defendants of the coup plot? This is an attempt to repeat the amnesty promulgated by Law No. 6,683, of August 28, 1979, which anone “all those in the period between September 2, 1961 and August 15, 1979, committed political crimes or related to them, electoral crimes, to those who had their political rights suspended and to the direct and indirect administration’s employees, from the public power, to the public power, to the public power, to the public power, to the servants of the public power, to the public power of the public power Legislative and Judiciary Powers, to union leaders and representatives, punished based on institutional and complementary acts. “
That is, it was about ending the military regime, without its authors and executors being punished.
Mr. See then the current movement for amnesty as a defense of impunity? Undoubtedly. This was already evident before the September 11 decision of the First Class of the Supreme Court [condenando Bolsonaro].
Mr. Do you consider that a project with this content approved in Congress with such a forecast would be constitutional? Why? Obviously a project with this content approved in the National Congress would be unconstitutional, as it would offend the fundamental principles of the Democratic Rule of Law, enshrined in articles 1 and 5, item XLIV, of the Constitution.
STF Minister Gilmar Mendes said a few days ago that. Mr. Do you agree? This forecast would not have to be explicit in the Constitution? The provision that “crimes against the Democratic Rule of Law is unsustible of forgiveness” is provided for in Article 5, item XLIV, of the Federal Constitution, as “the unenforceable and imprescriptible crime of armed, civil or military groups, against the constitutional order and the Democratic State” constitutes an imprescriptible crime.
And when the “armed group action” is not configured? Crimes amnesty against the democratic rule of law could eventually be constitutional? As I said, the amnesty to crimes against the Democratic Rule of Law, in any case, would violate the stone clause of article 1 of the Federal Constitution. [Este artigo prevê que a República Federativa do Brasil “constitui-se em Estado Democrático de Direito” com um rol de fundamentos].
Both Article 1 and Article 5, item XLIV, of the Federal Constitution are considered “stone clauses” of our legal system, in the sense that they cannot be violated at all.
What are the beacons to evaluate the possibility of amnesty or not the crimes against the democratic state of Right? Such constitutional provisions are unanimously considered “stone clauses”, precisely because their infraction in any form can never be tolerated.
From a formal point of view, could the amnesty be approved before a conviction? No, the amnesty only concerns the crimes whose condemnation of the perpetrators has already become final.
Part of the amnesties granted in the past, such as 1979, did not occur before conviction or res judicata? What are the differences in the current situation? Amnesty is only configured when the conviction has already been convicted. The previous amnesty would only serve the accused to avoid media wear and process confrontation, which, in my view, makes no sense at all.
Mr. Does it evaluate that it is possible to make any parallel between the discussion of the 1979 amnesty constitutionality with the current debate? Yes, as I stated, the current debate on the constitution of amnesty “broad, general and unrestricted” is nothing more than the repetition of amnesty granted by Law No. 6,683 of August 28, 1979.
In the evaluation of Mr., did the Supreme Court wrong by validating the Amnesty of 1979? Mr. Do you understand that the court would have to revisit this understanding of the past if it will analyze the constitutionality of a possible new amnesty? The objective of the 1979 decision of the Supreme Court was, according to the long Brazilian tradition, the conciliation between the dominant political group, which seized power in 1964 and continued to exercise it, and the vast majority of the population, already fed up with dictatorship and wanted to enjoy freedom and suppressed fundamental rights.
But the return to constitutional normality was reached only in 1988, when a new constitution came into force, fortunately still in force.
The STF’s position on the 1979 amnesty imposes an argumentative challenge on the court in the assessment of mr.? I do not think the Supreme Court, with its current composition, will conform again to a possible suppression of public freedoms.
X-ray | Fábio Konder Comparato, 88
Lawyer and Professor Emeritus of the Faculty of Law of USP. Reference in Human Rights, is a Honoris Doctor of the University of Coimbra and a member of the ARNS Commission Advisory Board.
