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

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 