At Long Last, Brazil’s Amnesty Law Is Declared Anti-Conventional

I want to call readers attention to an important case coming out of Brazil. This week, the 2^nd Regional Federal Tribunal (TRF2), based in Rio de Janeiro decided a case against Antônio Waneir Pinheiro Lima, a retired army sergeant, accused of raping and torturing Inês Etienne Romeu, the sole survivor of a clandestine torture center known as the “House of Death”.

The case is relevant because, unlike its neighbours, Brazil never carried out a proper democratic transition or any kind of accountability trials for the gross human rights violations committed during its 21-year-long military dictatorship. In 2010, Brazil’s Supreme Federal Tribunal (STF, for its Portuguese accronym) decided that the country’s amnesty law could bar investigations into past human rights abuses. Since then, Brazil has lost two cases before the Inter-American Court of Human Rights (Gomes Lund v. Brazil and Herzog v. Brazil), where the Court ordered it to set aside its amnesty law and end the situation of impunity in the country. According to the Court:

“Given its express non-compatibility with the American Convention, the provisions of the Brazilian Amnesty Law that impedes the investigation and punishment of serious human rights violations lack legal effect. As a consequence, they cannot continue to represent an obstacle in the investigation of the facts in the present case, nor for the identification and punishment of those responsible, nor can they have equal or similar impact regarding other cases of serious human rights violations enshrined in the American Convention that occurred in Brazil” (Gomes Lund, ¶174).

This idea that amnesty laws “lack legal effect” and are therefore null and void, is actually one of the Inter-American system’s most enduring legacies to human rights law. The doctrine goes back to the 2001 case of Barrios Altos v. Peru, where the Court set aside Peru’s amnesty law under the same rationale. According to this logic, “self-amnesty laws are ab initio incompatible with the Convention” and their “mere enactment constitutes per se a violation of the Convention” (La Cantuta v. Peru, ¶174). In the words of Augusto Cançado Trindade, in his separate opinion in Barrios Altos, “so-called ‘laws’ of self-amnesty are not actually laws: they are a mere aberration, an inadmissible affront to the legal conscience of humanity”. In the Inter-American system, therefore, and in very unique fashion, in case of amnesty laws, international law, by itself, annuls domestic law.

Unlike other countries, like Peru and Chile, Brazil was never very receptive to this doctrine (for more detail on this, see here). Cezar Peluso, the President of Brazil’s STF, stated that the Inter-American judgments did not “revoke, annul or indict” the Supreme Tribunal’s decision. For another justice, the Court’s judgment was “just an indication”. It seemed, therefore, that Brazil’s amnesty law was there to stay.

In the Inter-American system, however, there is a related doctrine, born out of the same set of case-law that gave birth to Barrios Altos and the invalidity of amnesty laws: conventionality control. In the 2006 case of Almonacid Arellano v. Chile (¶124), the Court stated:

“[W]hen a State has ratified an international treaty such as the American Convention, its judges, as part of the State, are also bound by such Convention. (…) In other words, the Judiciary must exercise a sort of ‘conventionality control’ between the domestic legal provisions which are applied to specific cases and the American Convention on Human Rights”.

This is the doctrine that brings us back to the TRF2 and Sergeant Lima. Judge Simone Schreiber, at the TRF2, became the first Brazilian judge to set aside the amnesty law through application of the conventionality control doctrine. For judge Schreiber, “the conceptual differences between both institutions allow us to conclude that the constitutionality of a rule does not necessarily impact in its conventionality” (p. 15).  She concluded that the crimes of torture and rape committed by Mr. Lima constituted at the time of their commission crimes against humanity, and that the amnesty law put Brazil in violation of a jus cogens obligation to investigate and punish international crimes (p. 23). She therefore concludes that “the application of the amnesty law to prevent the prosecution of criminal cases against alleged perpetrators of crimes against humanity violates (…) the American Convention” (p. 25). In this way, for Judge Schreiber:

“As a result of all this, it is beyond question that the [2010 STF] judgment (…) did not exhaust and could not exhaust the discussion regarding the amnesty law’s enforcement, in particular because of Brazil’s condemnation by the Inter-American Court of Human Rights in the following years” (p. 36).

Taking into account Brazil’s current situation, with a President that openly praises the dictatorship’s torturers, Judge Schreiber’s decision is a glimmer of hope, even if it may still be overturned by the STF. May her judgment be the first of many.