The ethical dilemma in validating the Amnesty Law

a critical analysis in light of the Bangalore Principles and the conventionality control exercised by the Inter-American Court of Human Rights

Abstract

Brazil’s democratic transition, although marked by institutional advances, remains unfinished with regard to the criminal accountability for serious human rights violations committed during the civil-military dictatorship (1964–1985). The 1979 Amnesty Law, especially in the interpretation given by the Federal Supreme Court (STF) in ADPF 153/DF, has been identified as the main obstacle to the criminal prosecution of state agents involved in practices of torture, enforced disappearances and summary executions. This article critically examines the ethical dilemma involved in the judicial validation of this statute in light of the Bangalore Principles of Judicial Conduct and of the case law of the Inter-American Court of Human Rights (IACtHR), in particular the judgment in Gomes Lund et al. (“Guerrilha do Araguaia”) v. Brazil. As noted by the IACtHR, “the provisions of the Brazilian Amnesty Law that prevent the investigation and punishment of serious human rights violations […] lack legal effects” (IACtHR, 2010, p. 113). This understanding reveals a rupture between the international duty to combat impunity and the domestic constitutional jurisprudence which, according to the majority opinion in the STF, conceived the amnesty as a ‘perfect legal act’ and ‘the result of a bilateral political agreement’ (STF, ADPF 153/DF, p. 11). Furthermore, in light of the Bangalore Principles, the values of judicial independence and impartiality require that judges act in such a way as to preserve ‘public confidence, which is the basis of judicial power’ (FEDERAL JUSTICE COUNCIL, 2008, p. 20), a value that is threatened by the persistence of the ‘culture of impunity’ denounced by various international bodies. By problematizing this tension, the article argues that maintaining the current interpretation of the Amnesty Law represents an obstacle to the consolidation of a substantive democratic state governed by the rule of law, committed to transitional justice and to international standards for the protection of human dignity.