July 6, 2021
Carlos Alberto Augusto, better known as Carlinhos Metralha, was the first defendant to be convicted at the criminal level for acting in the persecution of political opponents during the Brazilian military dictatorship (1964-1985). In the sentence handed down by the 9th Federal Criminal Court of São Paulo, on June 18, 2021, the former police officer was sentenced to 2 years and 11 months in prison for conducting the kidnapping of former Marine Edgar de Aquino Duarte in 1971.
The conviction is the result of a complaint that the Federal Prosecutor’s Office filed in 2012 for the disappearance of Edgar Aquino, a kidnapping that continues to this day. During the military repression, Carlos Augusto worked at the State Department of Political and Social Order of São Paulo (DOPS-SP) and, according to documentary and testimonial evidence, kept Edgar de Aquino incommunicado in the DOI-CODI and DOPS-SP buildings. The procedural number is 0011580-69.2012.4.03.6181. The proceedings can be consulted here.
The historic sentence, handed down by Federal Judge Silvio César Arouck, is the first in Brazil to condemn an agent of the dictatorship, as well as the first to recognize the crimes of the Brazilian military dictatorship as crimes against humanity. But why only now, in 2021, are we facing an unprecedented condemnatory decision, which aims to hold a perpetrator of human rights violations during the dictatorship criminally responsible?
Law 6.683/79, also known as the Amnesty Law, constitutes the principal and most controversial legal mechanism guaranteeing total impunity for agents of the dictatorship who committed crimes and who violated the very laws of the military dictatorship previously in effect.
It is a law promulgated by military president João Figueiredo, on August 28, 1979, seen by many scholars as a self-amnesty, generating devastating consequences for the implementation of the pillars of Transitional Justice in Brazil.
As a set of mechanisms that aims to overcome a past marked by atrocities, Transitional Justice can be understood from four major pillars: the guarantee of the Right to Truth and Memory, Institutional Reforms, Individual Reparations, and the most emblematic, the Accountability of agents of the dictatorship.
Considering these factors, prior to the conviction in the Edgar de Aquino case, there was never any success in bringing other criminal charges against members of the former regime. It is not surprising when one observes the emergence of a sense of pride in the authoritarian past, since the way in which the military, the Legislative, and the Judiciary acted in defense of the Brazilian status quo resulted in a veritable amnesia of a period replete with human rights violations.
The controversy is reinforced by the decision of the Argument of Noncompliance with a Fundamental Precept (ADPF) No. 153, filed by the Federal Council of the Bar Association before the Supreme Court in 2008, which decided for the validity and constitutional reception of the Amnesty Law. The case was brought on the grounds of a legal controversy regarding the normative provision that granted amnesty to crimes committed by agents of the dictatorship, including crimes of homicide, torture, and forced disappearance with or without concealment of a corpse.
Among the arguments invoked by the justices was the statute of limitations for criminal prosecution, raised mainly by Justice Marco Aurélio, which would prevent actions for criminal accountability of agents due to the 29-year period between the decision in ADPF 153 and the crimes committed during the dictatorship, violating the statute of limitations in the Penal Code.
In addition to the statute of limitations, another argument endorsed by the Justices refers to possible legal insecurity as a consequence of establishing future imprescriptibility for crimes committed in the past.
Thus, the decision of the Federal Supreme Court in 2010, which accepted the Amnesty Law, under the perspective that the crimes committed during the dictatorship would all be time-barred, is equivalent to denying the victims the possibility of obtaining, before the Judiciary, a jurisdictional judgment about the various crimes of which they were victims. In addition, it is essential to observe the precedence of International Human Rights Law, as well as the judgment of the Inter-American Court of Human Rights (IACHR) in the Gomes Lund case.
Crimes against humanity are serious human rights violations committed by a political force, supported by the state apparatus or other organizational structure, against the civilian population in order to control it. Such crimes have the potential to undermine the very human dignity of their victims, and because of this nature, it is understood that, when committed, there is damage and degradation of all humanity, which makes their combat, investigation and punishment in the interests of all.
The concept of crimes against humanity, as a legal category of international law, arises from the development of International Human Rights Law itself in the post-World War II period, with the Nuremberg and Tokyo trials. The first definition is found in the London Charter of 1945, which created and delimited the competence of the International Military Tribunal.
Subsequently, the understanding of crimes against humanity gained new normative contours through statutes – such as those of the International Criminal Tribunals for the former Yugoslavia and for Rwanda – treaties and the jurisprudence of international courts and tribunals. Currently, it is in the Rome Statute, ratified by Brazil in 2002, that one finds the concept and the typification of crimes against humanity that usually serve as reference in the international scenario. The Statute consolidated, once again, a norm of jus cogens.
Article 7 of the Statute lists a series of acts that, when committed in the context of a widespread or systematic attack against any civilian population, as a result of a state or organizational policy, qualify as crimes against humanity.
Among these is enforced disappearance, understood as “the detention, imprisonment, or abduction of persons by, or with the authorization, support, or acquiescence of, a State or a political organization, followed by a refusal to acknowledge such a state of deprivation of liberty or to provide any information on the status or location of such persons, with the purpose of denying them the protection of the law for a prolonged period of time.
Already in its article 29, the Rome Statute enshrines the imprescriptibility of such crimes. The provision, in fact, only recognizes what was already determined by international custom. This is because crimes against humanity are part of the jus cogens norms, i.e., they are norms accepted by the international community, which are imperative and have erga omnes effect; they are not subject to the rules of prescription and amnesty, nor can they be derogated from, except by another norm of the same nature.
The jus cogens character of crimes against humanity has been in force even before the period of the Brazilian military dictatorship, and is a consolidated understanding of the Inter-American Court of Human Rights. In this sense, the imprescriptibility of crimes against humanity, as well as the impossibility of amnestying them, is patent, and recognizing this is an obligation of all states.
It is based on this reasoning that Federal Judge Silvio César Arouck rightly decided to condemn the agent responsible for the forced disappearance of Edgar de Aquino. Besides the fact that the validity of the Amnesty Law cannot be based on the supposed prescriptibility of crimes, a law of domestic law cannot serve as an obstacle to the fulfillment of international obligations of this order, to which Brazil is subject.
In the civil sphere, for example, the duty to repair the victims of crimes against humanity is not subject to the statute of limitations. This is what the Precedent No. 647 of the STJ says, when it states that actions for compensation for moral and/or material damage resulting from violations of fundamental rights that occurred during the dictatorship are not time-barred.
The first conviction of the Brazilian State at the international level in relation to the events that occurred during the military regime is an example of non-compliance with these obligations, and reinforces what they are.
On November 24, 2010, Brazil was condemned by the IACHR for the arbitrary detention, torture and forced disappearance of 70 people, including members of the Communist Party of Brazil and peasants in the region, with the aim of eradicating the Araguaia Guerrilla. The State was also held responsible for the impunity of those responsible and the lack of access to justice, truth and information arising from the application of the Amnesty Law, which prevented a criminal investigation to prosecute, try and punish those responsible.
In its sentence, the IACHR affirmed that the obligation to investigate and, if necessary, try and punish the agents of the dictatorship takes on particular importance given the gravity of the crimes committed and the nature of the rights offended, considering that the prohibition of forced disappearances of persons and the corresponding duty to investigate and punish those responsible long ago reached the status of jus cogens.
In this scenario, reaffirming its jurisprudence in the cases Barrios Altos v. Peru and Almonacid Arellano et al. v. Chile, the IACHR determined that, given its manifest incompatibility with the American Convention on Human Rights, the provisions of the Brazilian Amnesty Law that impede the investigation and punishment of serious human rights violations lack legal effect and cannot continue to represent an obstacle to the investigation of the facts that occurred during the military dictatorship.
It is important to highlight that the Inter-American Court emphasized that, in judging the Gomes Lund et al. vs. Brazil case, the international court did not intend to review the decision of the Federal Supreme Court in ADPF no. 153, in which a constitutionality control was exercised between the Amnesty Law and the 1988 Federal Constitution. The IACHR’s decision, however, was a control of conventionality, analyzing the compatibility of the Amnesty Law with the American Convention on Human Rights, of which Brazil is a signatory and which has been in effect in the Brazilian legal system since September 25, 1992.
Although it is not possible to guarantee, for the time being, that the sentence imposed on Carlinhos Metralha will be effectively carried out, due to the limitations offered by the Amnesty Law, his conviction has great significance for Brazilian transitional justice. After all, this is the first time that Brazil – a country that, unlike its Latin American neighbors, chose not to criminally punish the agents of the dictatorship – has passed a sentence for a crime against humanity committed during the period.
The discussions about criminal accountability of the perpetrators of violations of the military regime are about impunity and punitivism. In fact, the absence of accountability cannot be considered, by itself, responsible for the incomplete transition experienced by Brazil, since the pillars of memory and truth, institutional reforms, and reparation are equally relevant to the achievement of transitional justice.
But, on the other hand, the choice to maintain the barriers put in place by the Amnesty Law, without any progress in the field of criminal accountability, is symptomatic of a country that was not able to truly face its authoritarian past, which has been spilling over into the institutions and national conscience ever since and appears more and more in the current context of democratic setbacks.
The verdict in the Edgar de Aquino case, therefore, may represent the prelude to a change in the judiciary’s understanding of the issue. It is a breath of hope for a more democratic future, without losing sight of the need to seek the effectiveness of all transitional justice instruments, both within and outside the criminal sphere.
By Gabriel Pereira Novais , Luísa Mouta Cunha  and Júlia Melo Fonseca Ribeiro .
For more information:
 Master’s student in Law at the Federal University of Minas Gerais (UFMG); Researcher associated to the Center for Transitional Justice Studies (CJT/UFMG). Member of the Extension and Research Group on Law, State and Race Relations (ALAFIA/UFMG).
 Undergraduate student of Law at the Federal University of Minas Gerais (UFMG). Extension Student at the Center for Transitional Justice Studies (CJT/UFMG).
 Law undergraduate student at the Federal University of Minas Gerais (UFMG). Extension Officer at the Center for Transitional Justice Studies (CJT/UFMG).