Criminal Responsibility in Brazilian Transitional Justice: A Constitutional Interpretative Process under the Paradigm of International Human Rights Law

Author:Emilio Peluso Neder Meyer
Position:The Federal University of Minas Gerais, Brazil
Pages:41-71
SUMMARY

This article aims to show how Brazilian institutions are coming to the conclusion that the crimes perpetrated by state agents during the Brazilian dictatorship of 1964–1985 are crimes against humanity. This conclusion is now being reflected in few judicial rulings but, paradoxically, in several institutional opinions (delivered by prosecutors, truth and reparatory commissions). The article... (see full summary)

 
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e Indonesian Journal of International & Comparative Law
ISSN: 2338-7602; E-ISSN: 2338-770X
http://www.ijil.org
© 2017 e Institute for Migrant Rights Press
is work was supported by Coordenação de Aperfeiçoamento de Pessoal de Nível
Superior (CAPES), a foundation aliated with the Brazilian Ministry of Education
(process number 3192-14-8).
e author would like to thank Marcelo Torelly from the University of Brasília
for his suggestion to write this article and Mariana Oliveira for helping review this
manuscript.
CRIMINAL RESPONSIBILITY IN BRAZILIAN
TRANSITIONAL JUSTICE
A CONSTITUTIONAL INTERPRETATIVE PROCESS UNDER
THE PARADIGM OF INTERNATIONAL HUMAN RIGHTS
LAW
Emilio Peluso Neder Meyer
he Federal University of Minas Gerais, Brazil
E-mail: emiliopeluso@gmail.com
is article aims to show how Brazilian institutions are coming to the conclu-
sion that the crimes perpetrated by state agents during the Brazilian dictator-
ship of 1964–1985 are crimes against humanity. is conclusion is now being
reected in few judicial rulings but, paradoxically, in several institutional opin-
ions (delivered by prosecutors, truth and reparatory commissions). e article
provides an approach to the historical context of Brazilian dictatorship and the
transitional justice measures that came aer that exception period. An overview
of how criminal responsibility for crimes perpetrated by Brazilian public agents
was put aside during several decades will have a climax in the Brazilian Federal
Supreme Court (Brazilian Supremo Tribunal Federal) holding of 2010. On the
ip side, the condemnation of Brazil by the IACtHR in the Gomes Lund Case
will be followed by the incorporation of the notion of crimes against humanity.
In conclusion, it will be possible to ascertain that Brazilian institutions started
to conform to the normative demands of international human rights law con-
cerning criminal individual responsibility, even if judicial authorities obstinately
resisting it.
IV Indonesian Journal of International & Comparative Law 41-71 (January 2017)
42
Meyer
Keywords: Transititional Justice, Human Rights, Democracy-building, Constitution-
al Law, Authoritarianism, Amnesty Law.
I. INTRODUCTION
Transitional justice in Brazil, as elsewhere, has to do with movements
forwards and backwards in time.1 Prosecutions that should have been
pursued immediately were postponed. In Brazil, the Amnesty Law of
1979 seemed to retroactively erase all responsibility for crimes against
humanity carried out during the dictatorship of 1964–85.2 We shall see
that criminal proceedings only began more than 30 years aer the Am-
nesty Law was adopted.
is gap can be explained by several factors: the indierence of the
majority of the population; the absence of public policies connected
with transitional justice; and cultural motives.3 Recently however,
things have started to change. e hypothesis of this article is that
Brazilian institutions are nally recognizing and embracing (as they
must) a binding “international human rights rule of law.” According
to this point of view, rule of law, transitional justice and international
human rights law are directly linked and, as a result, transitional
justice processes become less domestic and more internationalized.4 To
1. For an account of the Brazilian transitional justice process, see, E M,
D  R: E   J  T-
  B (); J  T   A  C-
   (Emilio Meyer & Marcelo Cattoni eds, 2014) (especially regard-
ing the 25 years of the Brazilian Constitution of 1988); E M, J
 T  P T (); M T,
J  T  E C  D: P-
 T-C  A  C B (2012); T-
 J: D    V-
 (Ulfrid Neumann et al. eds, 2013).
2. Although one can argue for dierentiations between gross violations of human
rights and crimes against humanity, I will adopt them as equivalents for the
purposes of this article, only opposing them when it is necessary to the context.
3. Regarding the latter reason, see, R A, M’ T: R-
  D  B (2014).
4. For a critical point of view on the relationship between transitional justice and
rule of law, see, P MA, T J  R 

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