Brazil: Federal Tribunal rejects statute of limitation on military era torture claim; allows lawsuit to proceed

The Regional Federal Tribunal (TRF-3), in a watershed judgment, ruled that prescription or statute of limitations was not applicable to claims of reparation by a victim of torture during the military regime in the 1970s. The Court accepted the arguments of ICJ Commissioner Belisário dos Santos Jr.

The hearing in the lawsuit against the Union and the State of São Paulo took place on Wednesday 22, after the case had been dismissed by the court first instance.

Belisário dos Santos Jr., Executive Committee Member of the ICJ, argued the case for the victim at the invitation of the Juridical Department of CA XI.

He noted: “On the one hand there could be no statute of limitation on torture claims, while on the other hand the the application of the statute of limitations which adopted by Decree 20.910 / 32 had to be considered.”

The lawsuit, which began in 2012, alleges political persecution and torture that took place beginning 1971 .

Belisário dos Santos Jr. argued that the rationale for the law and jurisprudence affirming the inapplicability of statute of limitation lies in the seriousness of the violation of torture, which had been committed on a widespread and systematic basis by order or with the knowledge of high-level State authorities in Brazil at the time.

“The obligation to provide reparation under the UN Convention against Torture could not be superseded by provisions of the domestic law of a State. In addition, the obligation to provide a remedy and reparation is a legal duty of the State which must not depend on the conduct or activity of the victims. For these reasons, the case could not have the same treatment of other lawsuits against the Public Treasury,” he said.

Belisário dos Santos Jr. also pointed out that, pursuant to article 14 of the UN Convention against Torture, which was ratified by Brazil in 1991, “the reparation must be fair and adequate, as recognized by the jurisprudence of the Supreme Court of Justice and TRF 3, itself in accordance with international human rights law and jurisprudence. ”

The TRF-3 decided by 3-2 majority that the statute of limitation was inapplicable and, unanimously, granted the appeal on merit, allowing the lawsuit to proceed.

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