A group of young lawyers in Brazil’s public prosecutor’s office are seeking to break through the wall created by the amnesty law that blocks the investigation and prosecution of serious human rights violations committed during the country’s 21-year military dictatorship.
The work of Justiça de Transición (Transitional Justice), a group made up of public prosecutors from several Brazilian states, is based on the concept that forced disappearances committed during the 1964-1985 dictatorship are ongoing crimes.
The 1979 amnesty law has so far kept human rights crimes like torture, forced disappearance and murder, committed by members of the security forces or leftwing guerrillas, out of the courts.
"Our argument is that (forced disappearances) are not crimes of the past, but ongoing crimes," Ronaldo Cramer, the representative of the Rio de Janeiro state chapter of Brazil’s bar association (OAB-RJ), told IPS.
In these cases, the crime of kidnapping is ongoing until the victim appears, dead or alive. And if those responsible for the forced disappearance refuse to provide information on the whereabouts of the body, they continue to practice the crime of hiding the corpse, prosecutor Ivan Cláudio Marx of the southern state of Rio Grande do Sul explained to the press.
Cramer said that by taking this approach, "we are trying to break through the amnesty law, which refers to crimes committed until Aug. 15, 1979."
"This is not about revising the law or giving it a different interpretation," added the OAB-RJ lawyer, one of the driving forces behind the Campaign for Memory and Truth, which helped come up with the strategy based on the "ongoing crime" argument, which has also been used in other Latin American countries like Chile and Guatemala.
The group moved from theory to practice on Wednesday Mar. 14, when they brought charges against army reserve colonel Sebastião Curió in a court in Marabá, in the northern state of Pará, for the "aggravated kidnapping" of five people in that area in 1974.
The disappeared victims, who belonged to the Araguaia guerrillas – the armed wing of the Communist Party of Brazil – were captured during military operations led by Curió.
According to the group of seven prosecutors who filed the legal action, the whereabouts of the victims are still unknown, although there is testimony from witnesses who say they were tortured and were seen for the last time in military custody.
"The decision by federal prosecutors to bring charges against a retired military officer for grave abuses committed in the 1970s is a landmark step for accountability in Brazil," the New York-based watchdog Human Rights Watch (HRW) said in a statement.
Under the military regime, more than 475 people were killed or "disappeared" for political reasons, according to official reports. In addition, some 50,000 were imprisoned and at least 20,000 were tortured.
"This is tremendous news for the families who lost loved ones in the brutal repression that followed the 1964 military coup. A quarter century after Brazil’s transition to democracy, they are still awaiting justice," HRW Americas director José Miguel Vivanco said in the communiqué.
Now it is up to a federal judge to determine whether or not the case will go to court. If it does, it will be the first time that a member of the military involved in the dictatorship will be in the dock for human rights violations. Up to now, that possibility has been blocked by the 1979 amnesty.
The amnesty law was upheld by the Supreme Court in 2010. But according to the prosecutors who filed the charges, the accusation does not run counter to that legal verdict either, because "the five kidnappings are ongoing," said Sérgio Suyama, a prosecutor from the southern state of São Paulo.
The group of prosecutors aimed to give a response to the Inter-American Court of Human Rights, which in November 2010 issued a ruling condemning Brazil for upholding an amnesty law that is "incompatible" with the international human rights treaties signed by this country.
The binding ruling stated that the amnesty cannot continue to prevent the investigation and prosecution of crimes against humanity committed by state agents during the military regime.
In 2011, Congress approved the creation of a Truth Commission, which will begin this year to investigate the human rights violations committed since 1964. However, it will not have the legal authority to establish criminal responsibility, and its conclusions will not give rise to court cases.
In the face of "setbacks" and hurdles like the Truth Commission and the amnesty law, "This action by the Public Ministry (public prosecutor’s office) is essential, not only because it involves legal action, but more importantly because these people like Curió, who remain in the shadows, will be showing their faces and telling what happened," Cecilia Coimbra, the president of the group Tortura Nunca Mais (Torture Never Again), told IPS.
The human rights activist, a former member of the Communist Party who was imprisoned and tortured by the army in 1970, said the important thing is for these stories from the past, as well as public documents that "are still in the hands of repressors like Curió, to come to light, and not just to a certain extent, as the Truth Commission intends."
"We hope this legal action brought by the prosecutor’s office will be the first of many," she said.
There are 55 other cases that fit the category of ongoing crimes, in which the group of prosecutors could file charges.
Cramer said the Brazilian bar association "is well-disposed towards" the initiative. Many were in favour of amending the amnesty law, but the public prosecutor’s office "did not move enough" to do that, he said.
"We hope the Public Ministry will be committed to this, and that legal action like this will stop being isolated events and will become a corporative stance;" said Cramer. Only then, he added, will the courts be able to confirm that ongoing crimes "are excluded from the amnesty law."
In his view, that would be a way to begin filling the gap left by a Truth Commission that is "a necessary but not sufficient tiny first step."
"Until the truth comes out, this story will always be a ghost, an open wound," the prosecutor said.
One of the Supreme Court magistrates, Gilmar Mendes, ridiculed the concept that certain crimes committed by the dictatorship are "ongoing" and thus do not fall under the amnesty.
"We’re going to wait until this question reaches the Supreme Court," he told the press. In the meantime, "let’s just let people discuss this and entertain themselves with the debate."
This article was originally published by IPS News.