Amnesty or Accountability? Brazil’s Supreme Court Must Decide

Written by Marina Soares da Fonsêca and Prof. Dr. Thiago Oliveira Moreira.

The ongoing judgment of the Claim of Non-Compliance with a Fundamental Precept (“ADPF”) 320, a constitutional case before Brazil’s Supreme Federal Court, presents a critical opportunity to resolve a longstanding ambiguity in Brazilian law. At stake is not only the scope of Brazil’s Amnesty Law, but whether the Court will explicitly recognize that amnesty cannot be used to absolve accountability for serious human rights violations—a step that would more clearly align Brazil’s legal system with its international human rights obligations, particularly within the Inter-American system.¹

Enacted in 1979 during Brazil’s gradual transition from military rule to democracy, Brazil’s Amnesty Law granted amnesty for “political or related crimes” committed between 1961 and 1979.² Although initially presented as a measure aimed at facilitating political reconciliation and enabling the return of exiles and political dissidents, the law was later interpreted by Brazilian authorities and courts as also extending protection to state agents involved in human rights violations committed during the military dictatorship.

This interpretation was based on the argument that acts such as torture, enforced disappearance, and extrajudicial killings constituted “related crimes” connected to political offenses committed during the authoritarian period.³ As a result, the Amnesty Law has long operated as a legal barrier to the criminal investigation and prosecution of military officials and other state actors accused of serious human rights abuses. The Brazilian Supreme Federal Court reinforced this interpretation in ADPF 153, when it upheld the constitutionality of the Amnesty Law and affirmed that the amnesty extended to state agents who committed politically connected crimes during the dictatorship.⁴ 

ADPF 320 is a constitutional action before Brazil’s Supreme Federal Court concerning the compatibility of the Amnesty Law with Brazil’s international human rights obligations, particularly the Inter-American Court’s judgment in Gomes Lund et al. v. Brazil.⁵ In that ruling, the Court made it clear that interpreting the Amnesty Law in a way that blocks the investigation and punishment of serious human rights violations is incompatible with the American Convention on Human Rights.⁶

This case reflects a decisive test for Brazil’s Supreme Court. If it openly applies conventionality control, which is the duty to ensure that domestic law complies with international human rights treaties, it will signal that Brazil is willing to treat its international human rights obligations as legally binding limits on domestic law, reinforcing both the authority of the Inter-American Court of Human Rights and Brazil’s credibility as a rights-committed constitutional democracy. However, if it continues to rely on internal legal reasoning that avoids directly confronting this conflict, it risks perpetuating a pattern of partial compliance, undermining the effectiveness of the Inter-American system, and sustaining legal uncertainty within Brazil’s constitutional order. 

In recent years, lower federal courts in Brazil have increasingly aligned their decisions with Inter-American standards. In some cases, judges have set aside the effects of the Amnesty Law in situations involving ongoing crimes, such as the concealment of the bodies of victims of the military dictatorship.⁷ The position of the Supreme Court, however, remains more ambiguous. In 2010, the Court in ADPF 153 upheld the validity of the Amnesty Law under the 1988 Constitution, a decision that stands in clear tension with later rulings from the Inter-American Court.⁸ In cases such as Gomes Lund et al. v. Brazil, Herzog et al. v. Brazil, and Leite, Peres Crispim et al. v. Brazil, the Inter-American international court has consistently held that amnesty laws cannot be used to shield those responsible for serious human rights violations.⁹

This reasoning has begun to surface at the Supreme Court level. For instance, in February 2026, Flávio Dino, a Justice of Brazil’s Supreme Federal Court, voted to exclude the application of the Amnesty Law to crimes of a permanent nature, such as enforced disappearance and concealment of corpses, on the grounds that these violations extend beyond the temporal scope of the law.¹⁰ He reasoned that as long as the violation continued—for example, while the fate or whereabouts of a victim remained unknown—the crime itself remained ongoing and therefore could not be covered by the Amnesty Law limited to crimes committed before August 1979.¹¹ However, the case was suspended after a request for further review by Justice Alexandre de Moraes, a member of Brazil’s Supreme Federal Court, which leaves this central question unresolved.¹²

Yet, debates surrounding the legal ramifications of the Amnesty Law avoid addressing a deeper issue: the broader incompatibility of the Amnesty Law, when interpreted to prevent accountability, with Brazil’s international human rights obligations.

While interpretative solutions such as limiting the scope of the Amnesty Law to exclude crimes of a continuing nature may produce practical results by allowing certain investigations and prosecutions to move forward, they do not eliminate the underlying legal tension. By avoiding a direct confrontation with the discrepancy between the Amnesty Law and international human rights obligations, these approaches offer case-by-case remedies but fail to provide a coherent and stable legal framework. Failing to explicitly acknowledge this incompatibility allows the problem to persist, leaving uncertainty about the extent to which international law effectively constrains domestic legal interpretation.¹³

This distinction between using international law as a persuasive interpretative tool and recognizing its binding force as a constraint on domestic law is essential. It is one thing to invoke international law as a supporting argument; it is another to acknowledge that certain domestic legal interpretations cannot stand in light of binding international commitments.

ADPF 320 offers a rare opportunity to resolve this ambiguity. If the Supreme Court limits itself to internal legal reasoning, conventionality control will continue to operate indirectly and unevenly. If, however, the Court explicitly recognizes that amnesty cannot be used to block accountability for serious human rights violations, it will take a clear step toward aligning Brazil’s legal system with international standards.

As the case remains pending, one question continues to loom: will Brazil fully uphold the commitments it has made under international human rights law, or will it once again postpone a decisive reckoning with its past?

1. Lei No. 6.683, de 28 de agosto de 1979 (Amnesty Law), D.O.U. de 28.08.1979 (Braz.). ↩︎
2. Amnesty Law No. 6.683/1979, art. 1 (Braz.) (Aug. 28, 1979). ↩︎
3. ADPF No. 153, Judgment, Sup. Fed. Ct. (Braz.) (Apr. 29, 2010). ↩︎
4. Id. ↩︎
5. Gomes Lund et al. (“Guerrilha do Araguaia”) v. Brazil, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 219 (Nov. 24, 2010). ↩︎
6. Id. ↩︎
7. Civil Appeal No. 5002620-24.2021.4.03.6181, Fed. Reg’l Ct. of the 3d Region (Braz.) (Feb. 21, 2025). ↩︎
8. ADPF No. 153, Judgment, Sup. Fed. Ct. (Braz.) (Apr. 29, 2010). ↩︎
9. Herzog et al. v. Brazil, Off. of the U.N. High Comm’r for Hum. Rts. (2018); Leite, Peres Crispim et al. v. Brazil, Inter-Am. Comm’n H.R., Report No. 265/21, Case 13.713 (Sept. 17, 2021); Gomes Lund (“Guerrilha do Araguaia”); supra note 1. ↩︎
10. Dino, J., vote in Extraordinary Appeal with Aggravation (ARE) No. 1,501,674, Sup. Fed. Trib. (Braz.) (Feb. 13, 2026). ↩︎
11. ARE No. 1,501,674; supra note 1. ↩︎
12. ARE No. 1,501,674, supra note 2. ↩︎
13. Marina Soares da Fonsêca & Thiago Oliveira Moreira, Amnesty and Conventionality Control: The Case of the Events of January 8, 2023, in Brazil, Oxford Hum. Rts. Hub (Apr. 8, 2026). ↩︎