The Polemic Case of Rubens Paiva and Reinterpretation of the Amnesty Law

Posted by Hilary Marie Johnson

There has been a lot of media attention as of late surrounding the reopening of the case of Rubens Paiva, congressman for the state of São Paulo disappeared during the military dictatorship. The case of Paiva’s disappearance, in many ways, is not so different from cases of other casualties of the regime, but the processing of this case has proven to be critical in reinterpreting the controversial Amnesty Law.

The Amnesty Law, created in 1979, allowed exiled activists to return to Brazil, but it also granted reprieve to those who had committed political-motivated crimes during the military dictatorship. Contentious essentially from its inception, the Amnesty Law has historically been a source of protection for former perpetrators of crimes against humanity. While the Inter-American Court ruled that Brazil’s Amnesty Law was illegal precisely due to its prevention of the exploration and prosecution of serious human rights violations, the interpretation of the Law in Brazil has historically favored former members of the military regime.

In March of this year, former Colonel Paulo Malhães confessed to the National Truth Commission that he tortured, murdered, and mutilated the bodies of political prisoners. He also confessed to participating in the murder of Rubens Paiva and of hiding the body, but later recanted, stating that he feared for his life. Approximately one month later, Paulo Malhães was found dead under suspicious circumstances, the apparent victim of an armed robbery orchestrated by three men. The strange timing surrounding Malhães death combined with further incriminating documentation tying Malhães to Paiva’s murder ultimately resulted in the decision to re-investigate the Paiva case.

The reopening of Rubens Paiva’s case is quite significant in that it has opened up an entirely new interpretation of the Amnesty Law, no longer affording immunity to those who are proven guilty of crimes against humanity. The decision to continue to prosecute the five former military officials responsible for the murder of Rubens Paiva and the concealing of his remains, according to regional prosecutor Silvana Batini, marked a historic and important change in the implementation of transitional justice in Brazil. It was the first time that the Brazilian Justice System recognized that the crimes committed during the military dictatorship constituted severe human rights violations, and that, as per international agreements and regulations, those who commit crimes against humanity should not be given amnesty. The final outcome of the Rubens Paiva case will inevitably become a landmark case that will have a tremendous impact on the process of transitional justice in Brazil and will create a precedent for all future cases that seek to utilize the Amnesty Law.

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