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Due reparation: what does the Volkswagen agreement in Brazil mean?

On September 23, 2020, the celebration of a historic agreement involving Volkswagen do Brasil and the three  branches of the Public Prosecutor’s Office (Federal, State and the one specialized in Labor Law) was announced. The company pledged to pay around 36 million reais to the association of former workers persecuted and tortured by the military regime with the involvement of the car maker, as well as to allocate part of this amount to institutions to promote the memory of the period.

This is an unprecedented agreement in the context of transitional justice in Brazil and an important advance in the recognition of the responsibilities of companies in the face of human rights violations. Despite the unprecedented nature of the agreement, some questions must be raised: would this be a satisfactory measure in terms of transitional justice? What would be its ramifications and implications, so long after the facts have been discussed?

What is the context of the agreement?

The agreement, a legal  instrument known as “Term for the Adjustment of Conduct”, in question arises in the wake of the movements for accountability and memory related to the period of the civil-military dictatorship (1964-1985), which had as one of its most important achievements the creation of Truth Commissions in Brazil. In this sense, among the hearings of the Truth Commission of the State of São Paulo, known as the “Rubens Paiva” commission, and the GT 13 – Dictatorship and repression of workers and the union movement, of the National Truth Commission (CNV), documents and testimonies pointed out Volkswagen’s collaboration with the military regime.

Among the violations committed by the company and included in the CNV Final Report are: the cooperation with the Department of Political and Social Order (DOPS), informing the names of workers considered “subversive”; the arrest of metalworkers without warrant inside their facilities; and the torture of employees inside the factory, such as the worker Lucio Bellentani, whose story was recorded in the documentary “Accomplices? – The Volkswagen and the Military Dictatorship in Brazil”.

The release of the Report in 2014 was an important achievement for the workers and served as a basis for the search for collective reparations. The social mobilization gave rise to a representation to the Federal Public Prosecutor’s Office (MPF)  signed by the Forum of Workers for Truth, Justice and Reparation, so that in the year 2015, the MPF initiated three civil inquiries to investigate the collaboration of the German company with illegal arrests, torture and other types of violations during the Brazilian dictatorship. After many negotiations and investigations, it was decided to sign an agreement that, however, does not fulfill all of the reparations claimed by the workers.

The agreement or TAC (Term for the Adjustment of Conductt) is an extrajudicial legal mechanism in which the parties undertake to comply with certain measures to prevent a lawsuit from being filed when irregularities are found. In this case, the agreement was signed by the representatives of the Federal, State and Labor Public Prosecutors’ Offices, who undertook to file the inquiries should Volkswagen comply with the following payments:

  1. R$ 9 million for the Federal and State Funds for the Defense and Reparation of Collective rights (FDD);
  2. R$ 10.5 million, through donations, to projects promoting memory and truth about human rights violations that occurred in Brazil during the military dictatorship from 1964 to 1985;
  3. R$ 6 million to the Memorial of the Fight for Justice;
  4. R$ 4.5 million to the Federal University of São Paulo – Unifesp;
  5. the donation of R$ 16.8 million to the Volkswagen – Henrich Plagge Association of Workers, which will be, in the end, destined to former VW Brazil workers, or successors, who have suffered human rights violations during the dictatorship.

Repercussions of the agreement and criticism

The authors of the representation expressed their dissatisfaction with certain clauses of the agreement by means of a note circulated in the media, indicating, among others, the lack of participation in the process and the absence of full compensation, with the exclusion of some claims . In addition, they indicated that they learned of the signature of the TAC by the German press – the proceedings of which were under secrecy in Brazil – even with the articulation for the development of the agenda.

In any case, the main point of disagreement refers to the disregard for the construction of a Place of Memory of the Workers’ Fights, whose location was already in advanced negotiation with the São Paulo City Hall. Such a measure, of a collective and diffuse nature, would promote the right to memory and truth of the workers and the union movement, making visible the struggle for justice, which remains until today.

In this sense, the transfer of R$ 6 million to the Memorial of the Fight for Justice, an initiative of the Brazilian Bar Association of São Paulo that concerns the performance of lawyers of prisoners and persecuted politicians in the Military Justice, does not contemplate the agenda of the world of work and the respective violations suffered during the dictatorship. The agreement seems, then, to lose sight of the unprecedented possibility of amplifying the forgotten and neglected accountability of companies for human rights violations in the dictatorship.

Former Volkswagen employees victims of the dictatorship protested in front of the company’s headquarters. (Photo: Rovena Rosa/Agência Brasil, 2017)

Furthermore, the authors are against the transfer of R$ 9 million to the Collective Rights Defense Funds of the State of São Paulo and the Federal Ministry of Justice. In their view, the sum of the funds (R$ 15 million) should be fully employed in the construction of the Workers’ Place of Memory.

Finally, as for the transfer of $ 16.5 million to the Association of Victims by Volkswagen – Heinrich Plagge, it is a demand accepted as one of the clauses of negotiation in March 2018, which the authors consider fair. However, the transfer as a “donation” by the company resonates as it were without claim or demand,  and not as a measure of redress.

Reparations as a pillar of transitional justice

Despite the controversies surrounding its signature, the TAC in question can be understood as one of several possible remedial measures in the context of transitional justice.

In its predominant conception, transitional justice is composed of four pillars:

  1. accountability for human rights violations;
  2. institutional reforms to ensure that violations are not repeated;
  3. guaranteeing the rights of memory and truth, and finally,
  4. repairs.

For a long time, transitional justice measures were focused on public actors – governments and rulers, police, armed forces and security forces in general – because of their centrality in promoting and committing the violations reported. However, the complicity and action of private actors, such as civilians and companies, both in establishing authoritarian governments and in committing the violations cited, are notorious.

Take the case of the Russell II Court, which, between 1974 and 1976, held three sessions to address human rights violations committed during Latin American dictatorships. Recognizing the specific economic interest of multinational companies in establishing a political regime that would serve their economic purposes, it was decided that the second session of the court, in 1975, would be dedicated to studying possible responsibilities of multinational companies in establishing dictatorships in Latin America. The findings derived from this effort are in a volume dedicated to open up the complicity of multinational companies in spreading military regimes in Latin America.

It should be noted, in time, that the accountability of private actors for human rights violations is not limited to corporations or large organizations. In the case of violations committed against rural workers in Minas Gerais during the military dictatorship, for example, the final report of the Truth Commission in Minas Gerais (Covemg) demonstrated that the authors or orchestrators of violations in agrarian conflicts were, in many cases, large rural landowners and private security agents.

Both in the case of rural conflicts and Volkswagen’s collaboration with the military regime, the private character of these entities does not free them from having to answer, to the extent of their contributions, for the violations committed. It is in this sense that the TAC should be seen, not as a display of generosity by the company, but as the late fulfillment of the obligation to repair – symbolically and financially – those affected and affected by the policy of repression during the Brazilian military dictatorship.

By Júlia Guimarães [1], Mariana Rezende Oliveira [2], Sophia Pires Bastos [3] .

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[1] Master’s degree student in Law at the Federal University of Minas Gerais. Fellow researcher (CAPES) and associated to the Center for Studies on Transitional Justice (CJT/UFMG).

[2] Master in Law by the Federal University of Minas Gerais. Researcher associated to the CJT/UFMG.

[3] Master’s Degree in Law by the Federal University of Minas Gerais. Researcher at CJT/UFMG.

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