Three days after the election of the far-right candidate Jair Bolsonaro to the Brazilian presidency, federal prosecutors filed a criminal complaint charging a former police officer and, for the first time, a former military prosecutor and a former military judge for crimes against humanity committed during the civil-military dictatorship. The victim of the crime, Olavo Hansen, was arrested while distributing propaganda against the regime, and succumbed under torture. At the time, the prosecutor and the court disregarded the evidence of torture, despite medical certificates proving what happened.
Brazil experienced the longest dictatorship in Latin America. During that time, the judicial branch was central in legitimizing the military’s actions. It channeled a good deal of the repression through the military courts, and allowed a major consolidation of the regime based on an artificial legitimation process – “varnishing” the dictatorship’s actions.
Jair Bolsonaro joined the Army during the dictatorship and was transferred to the reserves in 1988. He is known for praising the dictatorship and its infamous torturers, such as former colonel Brilhante Ustra. In 1999, Bolsonaro stated that the dictatorship should have “killed 30 thousand, starting with [then president] Fernando Henrique Cardoso]”.
Considering the nature of current events, it seems relevant to ask: in view of its role in the past, how will the courts check a president with such authoritarian views and close ties to the military?
To answer that question, first, it is necessary to make some remarks on the relationship of these two institutions in the democratic period. During the transition to democracy and after the enactment of the Constitution of 1988 there were no purges of the military or the judicial branch. Some reforms took place from the promulgation of the Constitution of 1988 onwards; nevertheless, such reforms were not necessarily followed by changes in the behavior of the individuals responsible for their enforcement.
Limited institutional reforms after the dictatorship also created barriers for an adequate relationship between the civilian powers and the military. Measures such as the creation of a civilian-led Ministry of Defense did not result in a more compliant military. This institution, even under civilian control and after 30 years of democracy, has not yet recognized that violations of human rights were committed by its members. Later on, in 2010, the Brazilian Supreme Court (STF) upheld the interpretation that the Amnesty Law of 1979 constitutionally granted an auto-amnesty for dictatorship’s agents.
The complaint addressed in the introduction of this piece is part of a broader initiative for criminal accountability of the agents of the dictatorship. The abovementioned STF ruling is one of the main obstacles to the federal prosecutors’ attempts to hold perpetrators accountable – of the thirty five complaints filed by the prosecutors, only seven were admitted. In this context, impunity in Brazil persists, notwithstanding two rulings of the Inter-American Court of Human Rights regarding such heinous crimes, i.e., the Gomes Lund and Herzog cases, and holding that the amnesty was inadmissible in those cases.
Furthermore, gross violations of human rights with unpunished massacres such as Carandiru and a failed prison system . Amnesty International and Human Rights Watch, for instance, recently recognized that Rio de Janeiro police forces have an extended record of torturing and killing young black people. As with the crimes of the dictatorship, decisions of the courts addressing these later violations also raise concern. Members of the state security forces involved in human rights violations during these last 30 years were commonly acquitted by the judiciary.
Most recently, the judiciary has shown that its relationship with the military is still a delicate subject. In recent months, an Army General was nominated as an aide of the Supreme Court’s new President. This same judge, during a lecture in October, referred to the 1964 coup d’état as a “movement”. In parallel, Temer’s administration appointed members of the military to political offices, and implemented an army-led federal intervention in the state of Rio de Janeiro. In turn, the Commander of the Army openly manifested political preferences during Lula’s trial by the STF, and requested less strict engagement rules for military personnel acting in the intervention.
Additionally, before the second round of the elections, electoral courts issued several rulings demanding that universities withdrew manifestations against fascism and in praise of democracy – claiming that they were illegal political propaganda against Bolsonaro’s candidacy. These judicial rulings are a sign of coercion against political dissent.
In October, Brazilians elected, along with Bolsonaro, 73 members of the military to roles in the legislative branch. In recent weeks, the elected president appointed a series of high-ranking officers to his future ministries. Bolsonaro also appointed the Federal Judge Sérgio Moro, the head judge of the “Operation Car Wash” anti-corruption case, to his Ministry of Justice. Moro was also involved in cases regarding the wiretapping of past presidents and the imprisonment of former President Lula. During the operation, Moro was the supporter of several restrictions on the rights of suspects, for example by allowing detainment of suspects that endured for several months and pressured defendants int accepting plea bargains.
Given this legacy, it is especially crucial that the more progressive sectors of the judiciary act as a check against the recent authoritarian backlash. These judges will certainly not be alone in this endeavor, as Brazilian academia, NGO’s, and civil society have also become active in resisting the increasing authoritarian threat.
Suggested citation: Emilio Peluso Neder Meyer & Felipe Guimarães Assis Tirado, Brazil Reckoning With its Past in Present Days: Will Judges Check Bolsonaro’s Government? Int’l J. Const. L. Blog, Nov. 14, 2018, at: http://www.iconnectblog.com/2018/11/brazil-reckoning-with-its-past-in-present-days-will-judges-check-bolsonaros-government/
 Pereira, Anthony. Political (In)Justice: Authoritarianism and the Rule of Law in Brazil, Chile, and Argentina. Pittsburgh: University of Pittsburgh Press, 2005.
 For the obstacles and limitations regarding the changes that came with the Brazilian Constitution of 1988, and the authoritarian role of the judicial branch in present constitutional crises, see Meyer, Emílio Peluso Neder. “Judges and Courts in Unstable Constitutionalism Regimes: The Brazilian Judiciary Branch’s Political and Authoritarian Character”. German Law Journal, v. 19, n. 4, 2018, p. 727-768.
 For instance, regarding the continuity of authoritarian practices in the police forces, see Guerra, Maria Pia. Polícia e ditadura: a arquitetura institucional da segurança pública de 1964 a 1988. Coleção LAB-MDH. Brasília: Ministério da Justiça e Cidadania, 2016.
 For a critical assessment of this ruling, see Meyer, Emilio Peluso Neder. Ditadura e responsabilização: elementos para uma justiça de transição no Brasil. Belo Horizonte: Arraes Editores, 2012.
 Tirado, Felipe Guimarães Assis. Human rights, transitional justice and transnational law: towards accountability for crimes against humanity in Brazil. Master’s Dissertation. Belo Horizonte: UFMG, 2018; Gonçalves, Raquel Cristina Possolo. Responsabilização criminal individual por crimes contra a humanidade no Brasil: análise das decisões de recebimento das denúncias e a sua adequação à normativa do Direito Internacional dos Direitos Humanos. Manuscript with the author. Belo Horizonte: UFMG, 2017.
 Meyer, Emilio Peluso Neder. “Criminal Responsibility in Brazilian Transitional Justice: A Constitutional Interpretative Process under the Paradigm of International Human Rights Law.” Indon. J. Int’l & Comp. L. 4, 2017, p. 41-71.
 Meyer, Emilio Peluso Neder. Tirado, Felipe Guimarães Assis. “Accountability for crimes against humanity in Brazil: impunity in the 30 years of the Constitution of 1988”. Revista de Informação Legislativa, forthcoming, 2018.
 For a critical assessment of this speech, see Carvalho Netto, Menelick de. Cattoni, Marcelo. Paixão, Cristiano. “Levando as palavras a sério: um golpe é um golpe”. Jota, https://www.jota.info/opiniao-e-analise/artigos/levando-as-palavras-a-serio-um-golpe-e-um-golpe-02102018 (acesso 26 out. 2018).
 See Meyer, Emilio Peluso Neder. ‘Brazil’s Authoritarianism Anteroom: A Meeting Between Judges and Military’ IACL-AIDC Blog (November 7 2018) https://blog-iacl-aidc.org/blog/2018/11/6/brazils-authoritarianism-anteroom-a-meeting-between-judges-and-military.
 After accepting the role of Minister of Justice, Judge Moro has been criticized by various sectors of Brazilian society, due to his role in Operation Car Wash. Among other factors, criticisms were made alleging his bias in conducting the trials.