The Report of the Brazilian Truth Commission: Late Truth without Justice?

On 10 December 2014, almost 30 years after the Brazilian military dictatorship (1964-1985) had come to an end, the “National Truth Commission” (“Comissão Nacional da Verdade”, CNV), established on 18 November 2011, presented its Final Report following an investigation that lasted two years and seven months (from May 2012 to December 2014). The Report comprises three volumes with a total of 4400 pages. The CNV consisted of seven members (“Conselheiros”)*, who were supported by over 200 research staff. The Report describes the human rights violations committed between 1946 and 1985 in great detail, listing both perpetrators and victims. The third section of the first volume of the report lists as the four most important violations of human rights: (1) unlawful and arbitrary detentions; (2) systematic torture using physical and psychological methods (proven for at least 1843 of an estimated total of over 20,000 victims) as well as rape and sexual assault; (3) summary, arbitrary and extrajudicial executions or other forms of state murder; (4) enforced disappearance and concealment of the victims’ bodies. The report ends with 29 recommendations and four conclusions which are translated into English for the first time with this post (see appendix below). This post provides an brief overview of the report as well as an evaluation of the work of the CNV. On the whole, the report constitutes a laudable, albeit limited effort to cope with Brazil’s dictatorial past and it may hopefully contribute to changing the still dominant authoritarian mentality in the country and strengthen its democratic institutions. 

Overview

The first volume of the Report has 18 chapters and was written jointly by all members. Here the CNV provides a detailed description of those human rights violations considered to be particularly significant due to their cruelty; these were committed mainly between 1964 and 1985 under the rule of the military junta who had carried out the 1964 coup d’état. The CNV describes the dictatorship’s functioning and bureaucratic structure, including its many repressive agencies (and the various police services (“Polícia Civil, Militar e Federal”), which made the systematic commission of human rights violations possible in the first place. Apart from the extremely powerful national secret service (“Serviço Nacional de Informação”, SNI), which reported directly to the president, each ministry had its own secret service. The Commission also details the close cooperation between the militaries of the Cono Sur (Argentina, Brazil, Bolivia, Paraguay and Uruguay) as part of so-called Operation Condor and the training of the Brazilian military by foreign agencies, particularly by the “United States Army School of the Americas”.

The second volume contains Commission members’ individual contributions on human rights violations against particular groups and institutions (including members of the military (!), workers, farmers, the Church, indigenous peoples, universities, homosexuals) and on business people’s collaboration with the dictatorship.

The third volume, which in the opinion of the CNV is of “vast historical importance”, is dedicated to 434 individual victims, of whom 191 were killed, 210 disappeared permanently and 33 disappeared temporarily but later ‘reappeared’. The period reported covers 1946 to 1985 and narrates the victims’ lives and the circumstances of their deaths, thus showing that the Brazilian State under military dictatorship pursued an active policy of systematic human rights violations.

Evaluation

Based on 1000 witness statements and circulated in 80 public hearings, the CNV has successfully carried out a massive documentation effort which, in conjunction with the historical truth thus accomplished, merits the highest respect. At the same time the Report has been criticised for different reasons, but the Commission is only partly to blame for this. Thus, for one, the Report’s lack of originality is mainly due to the fact that the Ministry of Defence and the armed forces have given little or no support to the CNV. In fact, the Ministry of Defence has disclosed very few new documents, and most of the facts disclosed were already known.

A more fundamental objection is that the CNV turned into a kind of “Commission of Impunity”, as it began its work (much) too late and because it (too) failed to overcome the greatest obstacle to a comprehensive coping with Brazilian human rights violations, including and especially criminal prosecutions: the Amnesty Law of 28 August 1979. Not even the fact that the last three Brazilian presidents (Fernando Henrique Cardoso, 1995-2002, Lula, 2003-2010, and Dilma Rousseff, 2011-2018) were victims of the dictatorship themselves has made it possible to seriously challenge this Law. Furthermore, the armed forces continue to refuse to officially recognise the human rights violations. Some members have even gone so far as to refer to the coup d’état of 1964 as a revolution and demand that the CNV investigate the crimes committed by the military regime’s opponents (cf. críticas do Clube Militar); these circles even attempted to prevent the dissemination of the Report through legal means.

There can be no doubt, as has already been said, that the CNV has made a significant contribution to ascertaining the historical truth and has done this better than specific criminal trials would have been able to. Furthermore, the Report has put significant political pressure on the Brazilian justice system, especially on the Supreme Court (“Supremo Tribunal Federal”, STF), to finally initiate the criminal prosecution, sentencing and (where necessary) punishment of the suspects. The Report proves that severe human rights violations took place and that these were general and systematic in nature, thus constituting crimes against humanity that must be prosecuted and punished according to international law. Moreover, the Commission has also drawn attention to the still existing structures that facilitate human rights violations. However, after all of this, it comes as a surprise that the Report does not even recommend the recognised measures of so-called transitional justice, such as the cleansing of public administration (“lustration”). As a consequence, for example, now retired members of the military or other persons involved in human rights violations, who may even be criminally responsible, continue to receive state pensions and benefits.

It is positive that the CNV explicitly lists 377 suspects – the Report ambiguously uses the term “perpetrators” (“autores”) – (of whom 196 are still alive and have an average age of 82), including eight former presidents of the dictatorship (all dead, however) and the Ministers of the Navy, Army and Air Force. Also mentioned are businesses and entrepreneurs who collaborated with the regime. This “naming and shaming”, a classic method of the transitional justice repertory, is a serious – albeit tentative – step in a sincere attempt to come to terms with the past. However, the additional recommendation to repeal the Amnesty Law in accordance with a Judgment of the Inter-American Court of Human Rights (IACtHR) (Gomes Lund e Outros [Guerrilha do Araguaia] vs. Brasil) conflicts with the Opinion of the Supreme Court, which declared the Amnesty to be constitutional – explicitly distancing itself from the IACtHR. The commendable attempts of the Federal Prosecution Service and some federal judges to prosecute the crimes of the military dictatorship are also doomed to failure if the Supreme Court continues to hold to its opinion. A current IACtHR decision accuses Brazil of failing to fulfil its human rights obligations stemming from the Convention. However, further developments will depend less on the IACtHR’s position and more on the stance that the new Supreme Court judges take on this issue (not only with regard to the validity of the Amnesty, but also with regard to the significance of the principle of legality and of the statute of limitations for the crimes in question).

In demanding a fundamental change to the still prevalent practice of human rights violations, the Commission is leaving a legacy that looks to the future. Three kinds of recommendation out of the total 29 recommendations relate to this call for change, namely those that demand (1.) 17 institutional reforms, (2.) eight constitutional and legal reforms and (3.) four measures for the implementation of their recommendations. Besides these, Volume 2 of the Report contains specific recommendations on concrete issues such as the persecution of particular religions and particular indigenous groups. The CNV wants to hold both the armed forces as an institution and those of its members who are guilty of the named crimes to account.

Some recommendations are not directly linked to the dictatorship, but instead constitute general demands for a (better) observation of human rights. Thus there are calls for fundamental legal and institutional reform, including the demilitarisation of the infamous military police (on this, also see the Declaration of Göttingen), the reform of the prison system, the strengthening of public defence (“Defensoria Pública”) and the creation of an oral review procedure for preventive detention. Even if the suggestion of such broad reforms is granted to be within the CNV’s mandate, this selection does seem somewhat arbitrary and in any case is incomplete. For example, there is a lack of suggestions for general reforms to the justice system and the public prosecution authorities (“Ministerio Público”), which both have considerable structural problems. Furthermore, one will search in vain for the otherwise called-for external monitoring of police activity and speeding up of criminal procedure.

All in all, the CNV’s work is certainly laudable and there are grounds to hope that it will make a significant contribution to changing the still dominant authoritarian mentality in Brazil and to strengthening its democratic institutions. The fact that the CNV needs to demand that all celebrations of the 1964 putsch be prohibited shows that this authoritarian way of thinking still persists. The Report is a heavy strike against those who remain nostalgic for the dictatorship and against the incorrigible defenders of torture. However, the judicial determination of the criminal and administrative responsibility of the members of the military and the necessary structural reform of the armed forces are still outstanding. Despite this being the case: late truth is better than no truth, and while late justice may be less just, it is still better than no justice at all.

APPENDIX

Recommendations of the CNV

(http://www.cnv.gov.br/images/relatorio_final/Relatorio_Final_CNV_Parte_5.pdf)

1. A) Institutional measures

[1] Recognise the responsibility of the armed forces for the serious human rights violations committed during the military dictatorship (1964 to 1985).

[2] Establish the responsibility of the institutions and officials who caused these serious human rights violations in terms of criminal, civil and administrative law. The Amnesty Law of 28 August 1979 (“Lei no 6.683”) should not be applicable.

[3] Suggest administrative and legal measures ensuring the liability of officials who were responsible for human rights violations and caused state sentences to be issued.

[4] Prohibit official celebrations of the military coup d’etat of 1964.

[5] Adapt the recruitment competitions and continuous evaluation procedures among the armed forces and in the public security sector so that knowledge of concepts inherent to democracy and human rights can be included in the evaluation.

[6] Modify the curriculum at military and police academies so as to promote democracy and human rights.

[7] Correct the causes of death in the death certificates of the victims of human rights violations.

[8] Correct the information in the “National Justice and Public Security Information System” (Rede Infoseg) and in the public registers more generally.

[9] Create mechanisms to prevent and combat torture.

[11] Strengthen the institutions of public defence [“Defensorias Públicas”].

[12] Review the prison system and the treatment of prisoners.

[13] Establish in law the external auditing of sentence enforcement and the institutions associated therewith.

[14] Strengthen the position of local councillors to follow the situation in detention centres.

[15] Guarantee permanent medical and psychosocial care for the victims of human rights violations.

[16] Promote the values of democracy and human rights in education.

[17] Help to establish institutions for the protection and promotion of human rights and to support their functioning.

1. B) Constitutional and legal reforms

[18] Annul the National Security Law (“Lei de Segurança Nacional”).

[19] Complete Brazilian legislation in regard to the legal definition of crimes against humanity and enforced disappearance.

[20] Demilitarise the military police at the federal state level.

[21] Shut down military justice at the federal state level.

[22] Exclude civilians from the jurisdiction of military justice.

[23] Prohibit any discrimination of homosexuality in legislation.

[24] Change the Code of Criminal Procedure to introduce a prohibition of killing persons resisting arrest [the practice of so-called “autos de resistência”].

[25] Introduce the oral review procedure of detention to prevent torture and unlawful detention.

1. C) Measures for reviewing and implementing the actions and recommendations of the CNV

[26] Create a permanent body to monitor the implementation of the actions and recommendations of the CNV.

[27] Monitor the activities aimed at localising, identifying and returning the remains of the disappeared politicians to their families or other persons entitled to receive them for proper burial.

[28] Preserve the memory of the severe violations of human rights.

[29] Monitor and strengthen the policy of localising and opening the archives of the military dictatorship.

Conclusions of the CNV

[1] Proof of severe human rights violations;

[2] Proof of the general and systematic nature of the severe human rights violations;

[3] Classification as crimes against humanity;

[4] Persistence of the pattern of severe human rights violations.

  The authors are grateful to Margaret Hiley, M.A., Ph.D., for her invaluable assistance in the preparation of this English version.

* José Carlos Dias (lawyer and former Minister of Justice 1999-2000), José Paulo Cavalcanti Filho (lawyer), Maria Rita Kehl (psychoanalyst), Paulo Sérgio Pinheiro (university professor and former State Secretary for Human Rights 2001-2003), Pedro Dallari (university professor, Commission Coordinator from November 2013 to Dezember 2014), Rosa Maria Cardoso da Cunha (lawyer), Gilson Dipp (former judge of the federal court “Superior Tribunal da Justiça“, STJ), who had to resign for reasons of health. Original member Claudio Fonteles (former Attorney General 2003-2005) resigned on 17 June 2013 and was replaced by the abovementioned Dallari. At the end the Commission thus consisted of only six members.