By ERIK CHICONELLI GOMES*
Memory, law and the persistence of crime in the Brazilian military dictatorship
Justice Flávio Dino’s recent decision on the Amnesty Law represents a crucial moment in the intersection between law and historical memory in Brazil. The analysis of the judicial document reveals not only a legal interpretation, but a profound reflection on how societies deal with their traumatic pasts.
The understanding presented by Flávio Dino challenges decades of restrictive interpretation of the Amnesty Law, proposing a new understanding that directly engages with the historical demands of movements for memory, truth and justice in Brazil. This legal shift suggests a significant change in the way the Brazilian Judiciary has positioned itself in relation to the crimes of the military dictatorship.
The concept of permanent crime, central to Flávio Dino’s argument, directly resonates with the experiences of families who, decades after the end of the military dictatorship, are still searching for their loved ones. This legal understanding is in line with what Maria Paula Araújo highlights in her work on memory and justice in contemporary Brazil, where forced disappearance constitutes a form of violence that is perpetuated over time. The permanence of suffering, materialized in the ongoing search for information about the whereabouts of the disappeared, demonstrates how the repressive apparatus managed to project its violence far beyond the dictatorial period, affecting subsequent generations and challenging the very notion of temporality of traditional criminal law.[I]
The reference to the play Antigone Sophocles’s use of the word in the judicial document transcends mere rhetorical devices, establishing a bridge between contemporary law and fundamental issues of Western civilization. As Jeanne Marie Gagnebin argues, the need for funeral rituals transcends the religious aspect, constituting a fundamental element of human dignity itself. The parallel established by Flávio Dino between Greek tragedy and cases of forced disappearance during the Brazilian military dictatorship highlights how certain fundamental issues of human existence and social organization persist throughout the centuries, demanding constant reflection and updating of our understanding of fundamental rights.[ii]
The specific case of Rubens Paiva, mentioned in the decision, exemplifies how the concealment of corpses served as an instrument of power and control during the military regime. Caroline Bauer, in her analysis of the Brazilian dictatorship, demonstrates how this practice was not occasional, but rather part of a systematic strategy of state terror. The transformation of disappearance into state policy represents a sophistication of repressive mechanisms, which managed to associate the physical elimination of opponents with the production of permanent uncertainty about their fate, multiplying the effect of terror on families and society.
The film I'm still here, cited by Flávio Dino, artistically materializes this dimension of suffering that is perpetuated through generations.³
Flávio Dino’s interpretation of the Amnesty Law as inapplicable to ongoing crimes represents a significant break with previous understandings and is supported by what Vladimir Safatle calls the need to confront the “pact of silence” that characterized Brazil’s democratic transition. This new judicial interpretation suggests a change in the way the Brazilian State deals with its authoritarian past, abandoning the perspective of forgetting in favor of a more active policy of memory. The decision directly engages with contemporary debates on transitional justice and with growing international pressure for greater accountability of state agents involved in serious human rights violations.[iii]
The mention of the film I'm still here The court ruling highlights how different forms of narrative about the dictatorial period intertwine in the construction of social memory. Rebecca Atencio observes that these cultural productions play a fundamental role in maintaining historical memory, functioning as important vectors for the intergenerational transmission of knowledge about the period. The incorporation of this cultural reference into a legal document demonstrates the growing permeability of the legal field to other forms of narrative about the past, implicitly recognizing that the construction of historical memory is not restricted to official documents or legal proceedings.[iv]
The argument about the ongoing nature of the crime of concealment speaks to what Ludmila da Silva Catela identifies as one of the fundamental characteristics of forced disappearances: their capacity to project terror through time. Flávio Dino’s decision legally recognizes what studies on memory had already identified: the impossibility of establishing a definitive temporal framework for crimes whose effects are perpetuated in the present. This understanding has profound implications for the debate on criminal prescription and on the temporal limits of the Amnesty Law, suggesting the need to rethink traditional legal categories when applied to crimes against humanity.[v]
The court ruling implicitly recognizes what Carlos Fico calls the “family dimension” of repression, where the suffering caused by disappearance extends across generations. This perspective highlights how the repressive apparatus has managed to create a mechanism of violence that transcends the individuality of the direct victim, affecting entire family structures and producing traumas that are transmitted through generations. The judicial recognition of this dimension of suffering represents a significant advance in understanding the long-term impacts of state violence, in dialogue with recent studies on intergenerational trauma and its implications for reparation policies. Dino’s decision, by incorporating this perspective, contributes to a broader and more humanized understanding of the lasting effects of political repression.[vi].
The mention of the International Convention for the Protection of All Persons from Enforced Disappearance demonstrates the insertion of this discussion in a broader context of human rights. Kathryn Sikkink argues that this type of international regulation plays a crucial role in overcoming authoritarian legacies, functioning as an important instrument of pressure for changes in domestic legal practices and interpretations.
The incorporation of this international normative framework into judicial arguments represents an important step in the harmonization of Brazilian law with international standards for the protection of human rights, highlighting how the process of settling accounts with the authoritarian past is not restricted to national borders, but is part of a global movement for truth, memory and justice.[vii]
The specific case of Pará, mentioned in the records, exemplifies what Nilmário Miranda characterizes as the spatialization of dictatorial violence, which took on particular forms in different regions of the country. The actions of the repressive apparatus in the context of the Araguaia Guerrilla reveal how the military regime developed specific strategies of repression adapted to different regional contexts, articulating regular and paramilitary forces in a complex network of institutional violence. Dino's decision, by addressing this specific case, contributes to a more nuanced understanding of the diversity of forms that repression took in different geographic and social contexts of the country, challenging simplistic narratives about the actions of the repressive apparatus.[viii]
The figure of Major Curió, mentioned in the lawsuit, represents what Daniel Aarão Reis identifies as the complex web of relationships between agents of repression and local power in the post-dictatorship period. His trajectory, which includes the transition from agent of repression to regional political leader, illustrates the mechanisms of continuity of authoritarian power even after formal redemocratization. This specific case highlights how impunity and lack of accountability for the crimes of the dictatorship allowed agents directly involved in serious human rights violations not only to remain free, but to be able to convert their capital of violence into political capital, demonstrating the limitations and contradictions of the Brazilian democratic transition process.[ix]
The mention of the Araguaia Guerrilla in the document highlights what Marcelo Godoy describes as the militarization of the repressive apparatus and its specific action against armed resistance movements. This historical episode represents a particularly significant moment in political repression in Brazil, where the Armed Forces employed irregular warfare tactics against political opponents, resulting in a significant number of forced disappearances.
Flávio Dino's decision to address this episode helps to keep alive the memory of one of the most violent chapters of the military dictatorship, highlighting how the practice of forced disappearance was used systematically as an instrument for the physical and symbolic elimination of political opposition.[X]
The concept of “permanent flagrant” used by Flávio Dino is in line with what Paulo Abrão identifies as the need to overcome restrictive interpretations of Brazilian transitional justice. This innovative legal construction allows us to rethink the temporal limits of the Amnesty Law, creating possibilities for accountability that seemed blocked by the traditional understanding. The argument developed in the decision represents an important contribution to the debate on transitional justice in Brazil, suggesting legal paths to address the historical impunity of crimes committed during the dictatorship without necessarily directly confronting the constitutionality of the Amnesty Law.[xi]
The issue of the right to the truth, fundamental to Flávio Dino's argument, finds theoretical support in Caroline Silveira Bauer's reflections on memory policies in post-dictatorial Brazil. The historian demonstrates how the systematic concealment of information about political disappearances constitutes a form of violence that perpetuates itself over time, affecting not only the families directly involved, but the entire society in its ability to understand and process its traumatic past.[xii]
The legal understanding that emerges from the decision represents a paradigmatic shift in the way the Brazilian State deals with its authoritarian past. By recognizing the permanent nature of the crime of concealing a corpse, the judicial document paves the way for a new understanding of the role of law in the construction of historical memory, suggesting that the judicial system can and should actively contribute to the process of settling accounts with the past.
Janaína de Almeida Teles argues that the right to mourn, central to Dino’s decision, is a fundamental element not only for the individual reparation of the affected families, but for the very process of democratic consolidation. The persistence of uncertainty about the fate of the disappeared represents an open wound in the Brazilian social fabric, preventing the full realization of the Democratic State of Law.[xiii]
The interpretation presented on the Amnesty Law suggests an evolution in the Brazilian legal understanding of crimes against humanity. This advance directly dialogues with international trends in accountability for serious human rights violations, indicating a possible overcoming of Brazilian exceptionalism in the treatment of these crimes.
Recent years have shown how restrictive interpretations of the Amnesty Law have served as real obstacles to the consolidation of effective justice in Brazil. This legal limitation, which for decades prevented more in-depth investigations into the crimes of the military dictatorship, is beginning to find new interpretative contours that allow us to glimpse alternative ways to hold accountable those involved in serious human rights violations.
The decision handed down by Justice Flávio Dino represents an important departure from this scenario, by establishing an innovative interpretation of the nature of the crimes of concealment of corpses. By recognizing the permanent nature of these violations, which continue over time while families remain deprived of the fundamental right to bury their dead, a new legal perspective is opened up that may finally allow the investigation and eventual punishment of crimes that until now were protected by an excessively broad interpretation of the Amnesty Law.
This legal turning point signals a significant shift in the way the Brazilian state deals with its authoritarian past. Official recognition of the ongoing suffering caused by forced disappearances not only validates the pain of families who have been searching for their loved ones for decades, but also contributes to the construction of a more just and democratic historical memory. This new judicial interpretation suggests that Brazil may finally be prepared to confront the most painful aspects of its recent past, a fundamental step towards consolidating a truly mature democracy.
*Erik Chiconelli Gomes is a postdoctoral fellow at the Faculty of Law at USP.
References
ARE 1501674/PA, Supreme Federal Court, Rapporteur Minister Flávio Dino, 2024.
Law No. 6.683 of August 28, 1979 (Amnesty Law).
International Convention for the Protection of All Persons from Enforced Disappearance, enacted by Decree No. 8.767 of May 11, 2016.
Brazilian Penal Code, article 303 – Permanent crime.
Notes
[I] ARAÚJO, Maria Paula. “The fight for amnesty and the resistance to oblivion: the construction of a memory about the disappeared during the military dictatorship.” In: Memory, truth and justice: dimensions of memory policies in Brazil, pp. 45-78.
[ii] BAUER, Caroline Silveira. “The repressive apparatus and disappearance as a technology of power.” In: Brazil and Argentina: dictatorships, disappearances and memory policies, pp. 123-156. Porto Alegre: Medianiz, 2012.
[iii] SAFATLE, Vladimir. “Trauma and the time of reconciliation.” In: On the use of violence against the illegal State, pp. 237-259. São Paulo: Boitempo, 2010. The author develops a strong critique of what he calls the “pact of silence” of the Brazilian democratic transition.
[iv] ATENCIO, Rebecca J. “Cultural Politics and the Memory of Dictatorship.” In: Memory's Turn: Reckoning with Dictatorship in Brazil, pp. 45-72. Madison: University of Wisconsin Press, 2014.
[v] CATELA, Ludmila da Silva. “The world of political disappearances.” In: Limit situation and memory: the reconstruction of the world of the relatives of the disappeared in Argentina, pp. 89-124.
[vi] FICO, Carlos. “The family dimension of repression.” In: History of contemporary Brazil, pp. 234-256.
[vii] SIKKINK, Kathryn. “The Justice Cascade in Latin America.” In: The Justice Cascade: How Human Rights Prosecutions Are Changing World Politics, pp. 145-178. New York: Norton, 2011.
[viii] MIRANDA, Nilmário. “Repression in the countryside and the Araguaia Guerrilla.” In: Why Human Rights, pp. 167-189.
[ix] REIS, Daniel Aarão. “The military and power: from dictatorship to democracy.” In: Dictatorship and democracy in Brazil, pp. 123-145.
[X] GODOY, Marcelo. “The repressive apparatus and its practices.” In: Grandma's House: A Biography of DOI-CODI, pp. 234-267.
[xi] ABRÃO, Paulo. “The Amnesty Law in Brazil: alternatives for truth and justice.” Amnesty Journal Politics and Transitional Justice, n.1, pp. 108-138, 2009.
[xii] STARLING, Heloisa. “Memory and truth: the right to the past.” In: The lords of the generals, pp. 178-198. Petropolis: Vozes, 2018.
[xiii] TELES, Edson. “Transition, memory and reconciliation.” In: Democracy and state of exception: transition and political memory in Brazil and South Africa, pp. 145-167.
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