Amnesty law, ADPF 153 and trial in the Case of Gomes Land and others vs. Brazil

Abstract

The presente papper intends to investigate the scope of the concept of transitional justice, in Brazil, from the analysis of the judgment of ADPF nº 153 by the Federal Supreme Court and the case Gomes Land against Brazil at the inter-american Court of Human Rigths and how the understandings enshrined in these actions have repercussions on the consolidation of democratic regime. Indeed, the traditional idea of a just transition has as its main concern to avoid any risk of authoritarian return, leaving, due to the success of objective, little space for reparation for eventual crimes perpetrated by dictatorial agents. However, it is necessary to inquire whether this concept of transitional justice is suffcient to ensure democratic stability or whether, on the contrary, the lack of punishment for human rights violations during na authoritarian government causes the actors of repression to feel a sense of that democratic freedom and fundamental rights are just concessions that can be withdrawn at any time. In order to analyze the proposed problematization, the historical-political context of the period of redemocratization and the advento of Law 6.683/1979 will be analyzed first. Subsequently, the position of the Federal Supreme Court regarding the constitutionality of the amnesty law and the understanding of inter-american Court of Human Rights in relation to this same legal system will be studied. Finally, it will address how the amnesty for dictatorial agents who committed crimes against human rights during the regime of exception can cause a weakening of democracy and the perpetuation of the violation of human rights. In this scenario, the hypothesis is pursued that the idea of transitional justice as a political agrement that seeks, primarily and almost exclusively, to avoid na authoritarian regression ends up promoting precarious agreements that are not concerned with repairing possible violations of rights perpetrated. By the regime of exception and, as a corollary, it sustains a permanente tacit threat of a dictatorial return, as well as defends the maintenance of practices that violate human rights.