Brazil laying down the law

•  Joe Bateman is WOLA's Program Officer for Brazil and a contributor to WOLA blogs. The views expressed are the author's own.

There have recently been a number of high-profile criminal cases in Brazil that have caused some to proclaim that a culture of impunity is finally giving way to a culture of accountability where criminals face justice. These cases include the current trials coming to a close associated with the Mensalão scandal, in which around 40 elected and appointed officials are being tried for their involvement in an elaborate Congressional vote-buying scheme that funneled public funds for political gain during the first Lula administration, and the recent conviction of two police officers for the 1996 massacre of 19 landless activists. Historically, few people have faced serious prison time for involvement in political corruption scandals in Brazil, but the Mensalão trials have shown that this trend may be coming to an end. Similarly, killings by the police in Brazil are much higher than in other countries; it is rare that officers who kill civilians while on duty are charged or convicted of wrong-doing, so the conviction against the two police officers for the 1996 massacre is a welcome change.

Yet while these are welcome challenges to Brazil’s culture of impunity, a decisive change has not yet been fully realized. To date, not a single person has been convicted for the hundreds of cases of forced disappearance, torture, and political murder committed during the military dictatorship in Brazil, largely due to the 1978 Amnesty Law that continues to prevent anyone from being tried for these crimes. Nevertheless, there are signs that Brazil may be approaching a tipping point toward accountability and, for the first time, seriously confront its history of human rights violations. In the past few months, federal prosecutors have opened five criminal cases against former members of the Brazilian military and police for their role in forced disappearances during the 1970s military dictatorship. These cases are still in the initial stages, but if they move forward to conviction, it would indeed signal a definitive shift away from impunity toward justice and accountability in Brazil.

RELATED: How much do you know about Brazil? Take our quiz and find out!

In November 2010, the Inter-American Court on Human Rights ruled that Brazil was responsible for the disappearance of 62 members of the Araguaia guerrilla group during the 1970s, and ruled that Brazil had to investigate these cases and criminally prosecute those responsible. Since then, federal prosecutors have attempted to open several cases against those accused of participating in these and other forced disappearances committed during the military dictatorship in Brazil, but until recently, all of these cases were thrown out for violating the Amnesty Law. This changed in August when a federal judge in the state of Para accepted a case against two former members of the military for their role in the forced disappearance of several members of the Araguaia guerrilla group during the 1970s. The judge based her decision on the argument that these were ongoing cases of kidnapping because the bodies have never been found, thus they do not fall within the time frame covered by the Amnesty Law, nor are they bound by the 20-year statute of limitations for murder. As this case has advanced, prosecutors in other states have been encouraged to pursue similar cases.

In September, the Brazilian Supreme Court approved the extradition of a former member of the Argentine Navy School of Mechanics (Escuela de Mecánica de la Armada Argentina, ESMA) accused of participating in torture and forced disappearance carried out during the Argentine Dirty War. The conditions of the extradition to Argentina stipulate that he only be tried for kidnapping because the statute of limitations for the other crimes has already passed in Brazil. As this ruling was issued by the highest court in Brazil, it further opened the door for other similar cases to move forward. Following this precedent, on October 23, a federal judge in Sao Paulo accepted a case against a former member of the military, a former member of the police, and a current member of the police for their roles in the 1971 forced disappearance of a man who defected from the military after it assumed control of the government. Using the “on-going” crime argument, a series of forced disappearance cases dating back to the military dictatorship may finally make their way to Brazilian courts in the coming months.

Unfortunately, the argument that forced disappearance is an ongoing crime and thus not bound by the Amnesty Law or any statute of limitations is inapplicable in the hundreds of cases of torture and extrajudicial executions committed during the military dictatorship in Brazil. Although torturers are not explicitly protected by the Amnesty Law, the Brazilian Supreme Court and other legal bodies in Brazil have at various times stated that these acts are covered under the political crimes umbrella of the law, in defiance of international human rights conventions. Thus, cases of torture and political murder (where the body was found) committed during the military dictatorship have continued to go unpunished. Convictions for torture and murder would carry a much longer sentence than the two-to-eight years for kidnapping, but would be much less feasible while the Amnesty Law remains intact, so federal prosecutors seem to be opting to go for what is achievable.

In May 2012, the Brazilian Truth Commission began the two-year process of compiling information on human rights violations committed by the State during the military dictatorship, and many hoped that this body would be another tool for those seeking justice for human rights violations committed during the dirty war. So far, the Commission has held several hearings and received testimony from a number of witnesses, victims, and those accused of human rights violations, and has been aided by the landmark Freedom of Information Law passed in late 2011. While the law creating the Commission expressly denies it prosecutorial power, some have suggested that the information revealed by the Commission could create the necessary momentum to overturn the Amnesty Law, much like the public outrage that fed into the trials surrounding the Mensalão scandal.

Unlike the examples of the Mensalão scandal and the 1997 police massacre, which seem to signal that impunity is giving way to justice in Brazil, there have still been no cases of human rights violations committed during the military dictatorship that have reached conviction, and the current cases are still in the initial stages and could be thrown out in an appeals court even if they do reach a conviction. Until now, no one has gone to jail for the hundreds of cases of torture committed by Brazil’s security forces from 1964-1985. Because of this complete lack of justice, it is probably still too early to say that Brazil has completely left a culture of impunity behind and has transitioned fully to a just, accountable society. In order to fully claim an end to a legacy of impunity, Brazil needs to not just punish those responsible for current crimes and corruption, although this is an important and positive step forward. It also must prosecute those responsible for torture and forced disappearance in past decades as well, as these crimes helped create the legacy of impunity that is felt today. Thankfully, there are signs that this process is underway.

– Joe Bateman is WOLA's Program Officer for Brazil