Is the Amnesty an Obstacle to Brazil’s Transitional Justice?

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Is the Amnesty an Obstacle to Brazil’s Transitional Justice?

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  IS THE AMNESTY AN OBSTACLE TO BRAZIL’S TRANSITIONAL JUSTICE? 1    Lauro Joppert Swensson Jr Goethe-University Frankfurt am Main  Abstract:  Which of the various accepted transitional justice processes are more suitable for democratic constitutional law and for democracies addressing their pasts? Is the investigation and prosecution of state crimes really relevant in transitions to  and in  democracy? To what extent does an amnesty affect, compromise or damage the transitional justice process of a country? Is Law 6.683/79, which has ensured the impunity of the agents of Brazil’s repressive dictatorship, really a major obstacle for transitional justice in Brazil? The article aims to answer all these questions, through the recognition of certain fallacies about the amnesty in the debate on transitional justice, regarding in particular: (i) the relationship between the amnesty and the political, objective, unconditional, and irrevocable character of its laws; (ii) the ideas of forgiveness, abrogation, forgetfulness, impunity and compliance with the repetition of the violence practiced by the authoritarian regime.  Keywords:  transitional justice - criminal accountability - amnesty – Brazil 1. MILITARY DICTATORSHIP AND POLITICAL REPRESSION IN BRAZIL On 1 April 1964, the Armed Forces staged a coup d’état   – called a ‘revolution’ by the military  – and established a dictatorship in Brazil, which lasted for twenty-one years (1964-1985). Under the influence of the ‘doctrine of national security and development’ (a set of ideas that re-thought Brazil in terms of its integration in the international context of the Cold War), most of the military in power sustained the need of a ‘revolutionary war’ on the part of the 1  An earlier version of this Article will be published, in Portuguese, in the collective book  Justiça de Transição  – Reparação, Verdade e Justiça. Perspectivas comparadas Brasil-Espanha  [Carol Proner, Paulo Abrão, Rosário V. Fernández (eds), Forum, 2013] and, in Portuguese and German, in a forthcoming publication of the papers of the German-Brazilian Conference on “Transitional Justice” - Vergleichende Einblicke in Transitionsprozesse aus Brasilien und Deutschland/“Justiça de Transição” – análises comparadas Brasil e Alemanha  (Goethe-University Frankfurt am Main, Germany, 16-18 July 2012). My gratitude to Erika C. Vegners for the very helpful comments.  government against the communism, the subversion and the terrorism that ‘threatened’ the country. 2  This notion of a continuous revolutionary war assumed, therefore, that some Brazilians were considered as ‘war enemies’ of the regime, who should, at all costs, be fought against, for criticising and opposing the dictatorship. These included left-wing parties, trade unionists, peasant and student movements, parts of the progressive clergy, certain journalists, artists and intellectuals, and dissident groups that took up arms against the government – such as the  Ação Libertadora Nacional   (ALN),  Partido Comunista Brasileiro Revolucionário  (PCBR), Vanguarda Popular Revolucionária  (VPR),  Movimento Revolucionário 8 de Outubro  (MR-8) and so on. In this context, the military regime, besides creating an entire specialised repressive apparatus – basically composed by the National Information System (SISNI) and the Internal Security System (SISSEGIN) – and making several legislative changes – such as the Institutional Acts No. 1 (AI-1), No. 2 (AI-2), No. 5 (IA-5), the new National Security Laws – often resorted to torture, enforced disappearance and extrajudicial execution to persecute and suppress its political enemies. In other words, it established throughout Brazil a state-installed, organised and sponsored structure of repression, which also used criminal practices in order to persecute and punish all those who opposed it.  3  Although, in the context of studies of the political repression of the Brazilian state, a  jus-sociological research dedicated to the calculation of the ‘dark field’ (  Dunkelfeld  ) has never been made, it is believed that about fifty thousand people were thrown into the ‘dungeons of the dictatorship’ (‘  porões da ditadura ’) and, of these, not less than twenty thousand were subjected to torture. It is estimated that, out of about eight hundred cases against national security submitted to military courts, nearly eleven thousand people were indicted and eight thousand accused, resulting in some thousands of convictions.  4   2  Arquidiocese de São Paulo,  Brasil: nunca mais  (33 th  edn 2003) 69-76; Carlos Fico, Como eles agiam: os  subterrâneos da ditadura militar   (Record 2001) 40-42; Carlos Fico, ‘Versões e controvérsias sobre 1964 e a ditadura militar’ (2004) 24  Revista Brasileira de História , 29-60; Olga E. Mavila, ‘Os direitos humanos na construção da democracia pós-regime militar’ (2003) 3 Cadernos de Direito  291-292; Thomas Skidmore,  Brasil: de Castelo a Tancredo 1964-1985  (7 th  ed, Paz e Terra 2000)   120, 121. 3  On this state-installed, organised and sponsored structure of repression in Brazil, see   Arquidiocese de São Paulo (n 2) 73-74; Fico 2001 (n 2) 71-148; Elio Gaspari,  A ditadura envergonhada  (Companhia das Letras 2002) 153-174; Elio Gaspari,  A ditadura escancarada  (Companhia das Letras 2002) 175-190; Maria Celina D’araújo, Gláucio Ary Dillon Soares, Celso Castro, Os Anos de Chumbo: a memória militar sobre a repressão  (Relume-Dumará 1994) 14-19; Skidmore (n 2)   249-269. 4  On this numbers, see Jacob Gorender, ‘Prefácio’ in Fico, 2001 (n 2) 12, 13; Dimitri Dimoulis, ‘Justiça de transição e função anistiante no Brasil. Hipostasiações indevidas e caminhos de responsabilização’ in Dimitri Dimoulis, Antonio Martins, Lauro Joppert Swensson Jr (eds),  Justiça de transição no Brasil: direito, responsabilização e verdade  (Saraiva 2010) 97, André Ramos Tavares, Walber de Moura Agra, ‘Justiça  The torture, the enforced disappearances and the summary executions have thus marked the history of Brazil. A history, which will not go away. And no one  has been held criminally accountable for the criminal actions of the state. As the Human Rights Committee of the UN reported: §18. While noting that the State party has created a right to compensation for victims of human rights violations by Brazil’s military dictatorship, there has been no official inquiry into or direct accountability for the grave human rights violations of the dictatorship. 5   2. THE PROBLÉMATIQUE Through the amnesty granted by Law 6683 of 28 August 1979, Brazil guaranteed (criminal) impunity to the perpetrators of serious human-rights offences, committed in the context of the  political repression that occurred during the military dictatorship of 1964-1985. In the Brazilian judicial praxis, the understanding prevailed then and still prevails that the granting of this amnesty by Law 6683 was based upon the large and  sui generis  criterion of politically-motivated acts, independent of the identity of perpetrators and of juridical assets, and thus cover both those who fought to overthrow the dictatorship, and those who struggled to save it. This understanding was also confirmed on 29 April 2010 by the Supreme Court (  Arguição de  Descumprimento de Preceito Fundamental n. 153  –  ADPF/153 ). This resulted in severe criticism of Brazil’s transitional justice and of the Supreme Court’s decision, especially when compared with the paths taken by our South American neighbours (Argentina, Chile, Uruguay and so on), which repealed their amnesty laws, and when compared with the jurisprudential guidelines and standards of the Inter-American Court of Human Rights (cases:  Barrios Altos v.  Peru  on 14 March 2001,  La Cantuta v.  Peru  on 29 Reparadora no Brasil’ in Inês V. P. Soares; Kishi, Sandra A. S. Kishi (eds),  Memória e verdade: A justiça de transição no estado democrático brasileiro  (Forum 2009) 77. On the statistics of the repression, cf. Amnesty International,  Report on allegations of torture in Brazil   ( London 1976); Arquidiocese de São Paulo (n 2); Comissão de Familiares de Mortos e Desaparecidos Políticos,  Dossiê dos mortos e desaparecidos políticos a  partir de 1964  (IMESP, 1996); Instituto Brasileiro de Ciências Criminais,  Elaboração jurídico-penal do passado após mudança do sistema político em diversos países: relatório Brasil   (IBCCRIM 2003); Ana Lúcia Sabadell et al .    Brasilien.   Strafrecht in Reaktion auf Systemunrecht. Vergleichende Einblicke in Transitionsprozesse  (Duncker & Humblot, 2009), Secretaria Especial dos Direitos Humanos, Comissão Especial sobre Mortos e Desaparecidos Políticos,  Direito à Memória e à Verdade  (Secretaria Especial dos Direitos Humanos, 2007), http://www.portalmemoriasreveladas.arquivonacional.gov.br/media/livrodireitomemoriaeverdadeid.pdf 5  UN, Human Rights Committee, Eighty-fifth Session, 1 Dezember 2005. http://www.unhchr.ch/tbs/doc.nsf/898586b1dc7b4043c1256a450044f331/13b32e118dfc49d8c12570ae00393223/$FILE/G0545344.pdf.   November 2006,  Almonacid Arellano et. al. v.  Chile  on 26 September 2006,  Massacre de la  Rochela v.  Colombia  on 11 Mai 2007, and in relation to Brazil, Gomes Lund. v.  Brazil   on 24  November 2010). Despite the recent and significant advances in relation to reparations programmes, institutional and legislative reforms, and truth-seeking, the idea still persists that Brazil has not yet experienced an ‘adequate’, ‘sufficient’, ‘correct’ or ‘satisfactory’ form of transitional  justice, because of the impunity guaranteed by the amnesty law to the perpetrators of state crime. In other words, the amnesty is an obstacle, or perhaps the biggest obstacle, for transitional justice in Brazil. 6  Even established democracies, benefiting from the rule of law and human rights, may still face the problem of addressing past injustices, in order to build more democratic and just regimes. In this regard, the idea of transitional justice plays an important role not only for transitions to  democracy, but also for transitions in  democracy, as is the case in Brazil. However, the affirmation that the amnesty is an obstacle to Brazil’s transitional justice has led, on the one hand, to an exaggerated simplification of the very idea of transitional justice, which is a much more complex and comprehensive phenomenon than the criminal  prosecutions of those who commit crimes in the context of political repression. On the other hand, it has also led to the fallacy that any country that decided to grant an amnesty to state agents would necessarily have an ‘inadequate’ transitional justice process, or one which was ‘doomed to failure’. Hence, the questions arise: Which of the various accepted transitional-justice  processes are more suitable for democratic constitutional law and for democracies addressing their pasts? Is the investigation and prosecution of state crimes really relevant in transitions  both to  and in  democracy? To what extent does an amnesty affect, compromise or damage the transitional-justice process of a country? Is Law 6.683/79, which has guaranteed the impunity of the state agents of Brazil’s repressive dictatorship, really a major obstacle to transitional  justice in Brazil? 6  See, eg, Glenda Mezarobba, ‘O que é justiça de transição? Uma análise do conceito a partir do caso brasileiro’ in Inês V. P. Soares, Sandra A. S. Kishi (eds),  Memória e verdade. A justiça de transição no estado democrático brasileiro  (Fórum 2009) 44; Tarso Genro, ‘Teoria da Democracia e Justiça de Transição’ in   Paulo Abrão, Tarso Genro (eds), Os Direitos da Transição e a Democracia no Brasil: Estudos sobre a Justiça de Transição e Teoria da Democracia  (Fórum 2012) 90; José Carlos Moreira Silva Filho, ‘O Julgamento da ADPF 153 pelo Supremo Tribunal Federal e a Inacabada Transição Democrática Brasileira’, http://idejust.files.wordpress.com/2010/07/o- julgamento-da-adpf-153-pelo-supremo-tribunal-federal-e-a-inacabada-transicao-democratica-brasileira.pdf; Deisy Ventura, ‘a interpretação judicial da Lei de Anistia brasileira e o direito Internacional’ in Leigh A. Payne, Paulo Abrão, Marcelo D. Torelly (eds.),  A anistia na era da responsabilização: o Brasil em perspectiva internacional e comparada  (Ministério da Justiça do Brasil, Oxford University 2011) 308-343.  3. NINE ASSERTIONS ABOUT AMNESTY There is a recent and already extensive debate in Brazil about the validity of our Amnesty Law to the state agents that participated in the political repression. This debate even culminated with the ADFP/153’s judgment by the Supreme Court. To answer our questions, I would like to focus on nine critical points about the amnesty, which, in my view, stand out in the disputes involving its interpretive meaning. 7  (1)  Amnesty is not forgiveness.  Those who can forgive are the direct and indirect victims (for example, family members) of the violence and criminality of the military regime, and never the state, through its legislature, executive or judiciary. Forgiveness is individual, personal: it concerns only the author of the offence, on the one hand, and the victim, on the other. Only those who committed the aggression can ask for forgiveness; in the same way, only those who suffered the aggression may grant forgiveness to their torturers or aggressors. A society does not forgive. Neither does true collective-forgiveness exist. If there is the intervention of a third party, we can talk about amnesty, reconciliation, repair and so on, but not about forgiveness. 8  It is true that, in the historical moment in which we live and especially in a context of  political transition, it is common to develop an entire ‘theatre space’ in which, be it sincere or not, the act of ‘great forgiveness’, and ‘the big scene of repentance’ can be played. For example, the apology made by Pope John Paul II for acts committed in the past by Catholics against Indians and Afro-descendants (October 1992), against the Jews (March 2000), against the population of Croatia and Bosnia during the War in Bosnia and Herzegovina (June 2003). Or the famous ‘  Kniefall von Warschau ’ on 7 December 1970, by the President of the Federal Republic of Germany, Willy Brandt, at the monument commemorating the Warsaw Ghetto Uprising of 1943. This is a ‘forgiveness’ of the political system, which, in its semantics, admits strategic calculations, negotiations, conditions, and the weighing and balancing of 7  For this analysis, I will vertically examine the judgment of the Brazilian Supreme Court (STF) on the ‘  Ação de  Descumprimento de Preceito Fundamental n. 153 ’ (ADPF/153), so that all votes of the Judges henceforth cited refer to this trial. 8  Kai Ambos, ‘The legal framework of transitional justice: a systematic study with a special focus on the role of the ICC’ in Kai Ambos, Judith Large, Marieke Wierda (eds),  Building a future on peace and justice: studies on transitional     justice, peace and development  .  ( Springer 2009) note 48, at 27. Contrarily: Silva Filho (n 6) 42; STF, ADPF/153: Carmen Lúcia at 95, Ayres Britto at 135, Marco Aurélio at 155, Cezar Peluso at 206 and 214.
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