A justiça de transição na jurisprudência dos tribunais constitucionais do Cone Sul: estudo comparado sobre a clemência para crimes contra a humanidade

Abstract

Authoritarian regimes in the countries of the Southern Cone experienced, in the last century, civil-military dictatorships that institutionalized a repressive state apparatus, and the agents, with the use of this organized structure, in a systematic way, perpetrated serious violations of human rights, which they characterize in the face of International Law, crimes against humanity. The dictatorships, therefore, acted within the framework of what is called State terrorism, having even created an information system that allowed joint action to persecute political opponents, the so-called “Operation Condor”. In this context, what draws attention is the difference in the criminal prosecution of agents who have committed crimes, between the countries of the Southern Cone: Argentina, Brazil, Chile and Uruguay. In Argentina, Chile and Uruguay, hundreds of agents of the representation were condemned, including the supreme heads of the regime, such as Generals Videla and Pinochet and the civilian president in Uruguay, Bordaberry. In these countries the amnesty laws were repealed or declared null, while in Brazil, the Supreme Federal Court, declared our amnesty law valid, in the famous judgment of ADPF No. 153. Brazil, therefore, is the only country that has not condemned any of these criminals that they have committed: torture, kidnapping, rape, enforced disappearances and murders. The objective of this work is to investigate the causes that allowed the Brazilian justice system to endorse the impunity of the agents of repression that committed such atrocities. To achieve this objective, it was necessary to go through the jurisprudence of the constitutional courts of these countries and of international courts, seeking through a comparative study, to verify the legal foundations that allowed the condemnation of the agents of repression, who committed crimes against humanity, in the justice systems. from Argentina, Chile and Uruguay. In these countries the obstacles that still prevent punishment in Brazil have been removed, with the application of international human rights law. The work examines the causes of the impunity of the agents of repression in the Brazilian case, confronting the precedents of the justice system in Brazil, with the jurisprudence of the Constitutional Courts of the other countries of the Southern Cone and of the Inter-American Court of Human Rights. In the second part of the thesis, the jurisprudence of these Courts will be compared, in order to identify the reasons for applying the law differently in Brazil, considering that in other countries there were dozens of convictions. The comparative study and analysis of judicial decisions in Brazil, seeks to contribute to the realization of transitional justice in the country, through the continuity of investigations, the filing of criminal actions and the punishment of those responsible for serious human rights violations perpetrated by agents of the repression of the Brazilian civil-military dictatorship.