BBC Brasil Interviews Human Rights Defense Lawyer on The Legitimacy of the Amnesty Law

Posted and Translated by Robyn Smith 

Following the 2010 Inter-American Court on Human Right’s decision that called for Brazil to investigate and prosecute those behind the deaths of the Araguaia guerrillas, a surge of human rights cases occurred in the country.  The prosecution of Col. Carlos Alberto Ustra Bright has been seen as a great step forward in an other wise oblique scene of Brazilian judges refusing to violate the Amnesty Law. Marlon Weichert has been one of the most active lawyers in human rights in Brazil, beginning his case for the Araguaia guerillas in 1999 and currently a part of the Ministério Público Federal (MP) , and agreed to an interview with BBC Brazil on his understanding as to why there has been such a struggle for Brazil to get past the Amnesty Law. Special thanks to Leigh Payne for passing the interview along. To read the interview in its original Portuguese, follow this link.

BBC Brasil: When the Brazilian Supreme Court refused to reinterpret the Amnesty Act, it didn’t end the matter [referring to the debate on the Amnesty Law]? 

Weichert: No because the decision of the Inter-American Court came after the Supreme Court’s decision and ruled that amnesty cannot stop the punishment of serious crimes. By recognizing the Court’s jurisdiction, Brazil accepted that there was a two standards that had to be met when ruling on cases of human rights abuse in the country. The Amnesty Law does not meet the second standard.

BBC Brasil: But the Court’s decision was ignored by Brazil…

Weichert: For us, the MP, the decision was a watershed and we’re an organization of the State. Today more than 70 investigations are in process against the criminal actions of the police and military- and the majority were opened last year.

BBC Brasil – What else is being done?

Weichert – Two working groups were formed that work with 20 to 30 developers. One for civil and one for criminal cases. The first group opened 8 cases against the torturers and  those that helped hide the bodies and [they have] ten continuing investigations. We ask that those who aided in repression be prevented from holding public office, have their retirement incomes disenfranchised, and be obligated to pay public coffers to compensate victims and their families.

The second group is connected to 70 criminal investigation. Two cases have been tried by the Justice system (the cases of Ustra and reformed coronal Sebastião Curió). As of now, judges have not been favorable but we are expecting a change.

Marlon Weichert (Foto Ruth Costas BBC Brasil) Photo of Marlon Weichert taken by the BBC Brasil reporter

BBC Brasil – The MP has a consensus on the issue? 

Weichert –No. But the prosecutors act independently. When we began looking for the disappeared, just me and another college approve of taking criminal action. Now, half of the prosecutors support this idea. Additionally, in the past year the Coordination of Human Right and Criminal Law of the MP established that the decision of the Inter-American Court should be upheld.

BBC Brasil – Are these investigations linked to the Truth Commission?

Weichert – They may have synergy (between the investigation), but they don’t have a dependency. Our investigation are based on document research and victims’ statements.   Pode haver uma sinergia (entre as investigações), embora não haja dependência. Nossas

BBC Brasil – But why the commitment from the MP at this particular time? Why would the judges change their mindsets? 

Weichert – The constitution gave the MP a duty to defend human rights and pursue prosecutions. It is our obligation to start this process. Today there are preconceptions of Brazilian jurists with international law. We have a legal culture that is 50 years old. But with various countries that went through this transition and ultimately accepted the authority of the international law.  In Brazil it will be no different. In the worst case scenario, in four or five years the decision of the Inter-American Court will be fulfilled.  And even before that we are expecting favorable decisions.

BBC Brasil – Brasil has began its political reparations policy for financial compensation. They have disbursed more than R$2 billion ($1 billion US dollars) before a truth commission opended the debate on repairing the damages.   Moreover,  the majority of compensations were not for relatives of the deceased, but for those forced to abandon their high positions during the time of the authoritarianism. This all doesn’t create negative feelings towards the cause of the victims in the public’s opinon?

Weichert – This may not have been the best path, but it was actually possibly. There isn’t a cake recipe for bringing about “transitional justice”. In the case of political compensations, the was the design of the laws that define it.

BBC Brasil – What should be expected of the Truth Commission?

Weichert – It plays a crucial role, though without  punishments its work would be incomplete. The punishment of a person dissuades others from committing the same crime and generally helps prevent the violations of human rights. Still, we have written in the statutes a way of governing the actions of the military dictatorship and the police.

BBC Brasil – The Brazilianist Anthony Pereira, of King’s College, said that the Brazilian Judiciary is reluctant in accepting the cases against the military because many were political persecuted in courts during the regime. What do you see in this argument? 

Weichert – O The Judiciary needs to make a  self-criticism to its role in the regime. The fact that the Congress and the courts continued to remain active serves as a facade of legality  in reference to the dictatorship and today it complicates the depuration of  what occurred in Brazil- because in the imaginary part of society there was not reparations. For this,it is important that the Truth Commission promotes an evaluation  of the role the institutions  in the military regime. It should be able to invite not only the Judiciary, but all the MP and other institutions to try to understand why they joined an arbitrary legal system.

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