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Brazil: Major Step for Military-Rule-Era Justice

São Paulo Case Against Army Colonel, Police Chief

(Washington, DC) – The criminal case filed on April 24, 2012, against a retired army colonel and a civil police precinct chief for grave abuses committed in the 1970s in São Paulo state is an important step for accountability in Brazil, Human Rights Watch said today.

The case is the second in Brazil – and first in São Paulo – in which criminal charges have been brought against a Brazilian official for human rights crimes committed during the country’s military dictatorship, from 1964 to 1985. At least 475 people were killed or forcibly disappeared during that era, and thousands more were illegally detained or tortured.

“This is the second time in as many months that Brazilian prosecutors have filed charges for atrocities committed during the years of military rule,” said José Miguel Vivanco, Americas director at Human Rights Watch. “This could be the beginning of a new era for accountability in Brazil, though it will ultimately be up to the courts to determine whether the country is finally ready to pursue justice for these terrible crimes.” 

In the São Paulo case, federal prosecutors charged retired colonel Carlos Alberto Brilhante Ustra and a civil policeman, Dirceu Gravina, with aggravated kidnapping for their alleged role in the enforced disappearance of Aluízio Palhano Pedreira Ferreira in May 1971. A federal judge in São Paulo state’s Criminal Division of the Judicial Subsection will determine whether the case will go to trial. 

On March 14, federal prosecutors charged a retired army colonel with the aggravated kidnapping of five members of a small guerrilla organization detained during military operations in Pará state in 1974.

Ferreira was a member of the Popular Revolutionary Vanguard guerrilla group. Federal prosecutors say that witnesses last saw him in police custody at the DOI-CODI intelligence and detention center in São Paulo. His fate remains unknown.

A 1979 amnesty law had effectively barred criminal prosecutions for dictatorship era abuses. In November 2010, the Inter-American Court of Human Rights ruled in Gomes-Lund et al. (Guerrilha do Araguaia) v. Brazil that this amnesty law does not prevent the investigation and prosecution of serious human rights violations committed during military rule. 

International humanitarian law absolutely prohibits enforced disappearances, which are never justified – whether as part of an armed conflict or any law enforcement operation. They may also constitute war crimes or crimes against humanity.

As a party to the International Convention for the Protection of All Persons from Enforced Disappearance, ratified by Brazil in November 2010, Brazil has specific obligations to ensure that, whenever the crime occurs, there is an effective investigation and prosecution, and a proper remedy for the victim. When it ratified the treaty, Brazil did not include any reservations regarding the application of the convention to outstanding, continuous cases of disappearances. If the victim of an enforced disappearance remains missing and information about the person’s fate is not provided, the crime continues and amnesty laws do not apply.

Moreover, while international law forbids the retroactive application of the criminal law, this prohibition is not intended to prevent the punishment of acts that were recognized as criminal under international law at the time that they were committed, Human Rights Watch said. 

Article 15 of the International Covenant on Civil and Political Rights (ICCPR), which Brazil ratified in 1992, says specifically, “Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when committed, was criminal according to the general principles of law recognized by the community of nations.”

Brazil’s Supreme Court recognized the continuing nature of enforced disappearances in two recent decisions granting extradition requests from Argentina. In Extradition 1150, Justice Cezar Peluso affirmed that in the case of the “disappearance” of persons abducted by state agents, the crime of kidnapping continues until a judge determines when the victim died. Until then, “the possibility of homicide is nothing more than mere speculation.” 

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