Brazil military courts 1964 under supervise of civilian Supreme Court

By Jayshendra Karunakaren
After a military coup in 1964, junta issued laws to repress civil and political rights. The Brazilian military court tried civilians, especially dissenters and critics of the regime. It consisted of both military and civilian actors. Civil society groups were able to access and monitor court proceedings and lobby for reform.
Picture from George Vale
Background - The 1964 coup to ‘defend the constitution’
The Brazilian military launched a coup in 1964 in response to President Joao Goulart’s expansion of his executive prerogatives and his nationalisation of major industries and economic sectors. The coup was pre-emptive in that the military aimed to limit Goulart’s future policies. The military accused Goulart of attempting to end constitutional government. 
The coup was initiated by General Olympio Mourao Filho on April 1, 1964 and was carried out rapidly. The army characterised the coup as a defensive measure as Goulart’s aim was to “put an end to constitutional government in Brazil” as he was interested in creating a “personal dictatorship.” However, as Perreira argues, Goulart never made these dictatorial moves and thus the coup at best, can be described as pre-emptive, as opposed to a rollback coup. In addition, military officers claimed to have discovered documents in Minas Gerais that revealed a large-scale plan from the Communist Party to control the government. 
Legal instruments: the junta acts AI-1, AI-2 and AI-5 defined national security crimes against political opponents
Immediately after the coup, the junta launched “Operation Clean-Up” (Operacao Limpeza) to prosecute potential threats to the regime’s security. This resulted in the detention of tens of thousands of people (for the majority, just for a short period) including suspected Communists and their sympathisers in state departments and state-owned firms, trade unions and universities. This operation was authorised legally by the enactment of the First Institutional Act, AI-1. Drafted by the military ministers in the new junta, these new powers also included suppressing the political rights of anyone for 10 years, and suspended the job guarantees of state employees. A six-month limit was imposed on the exercise of AI-1. 
According to Perreira, under this act, the regime suspended 517 people of their political rights to vote and run for office, 541 elected officials from their mandates, and purged almost 4,000 civil servants, hundreds of university faculty members, students and trade union leaders between 1964 to 1973. 
In October 1965, the second institutional act AI-2 was drafted and allowed the head of the junta to declare a state of emergency to repress political subversion. Unlike AI-1, AI-2 did not have a time constraint. At the peak of the regime’s repression, about 50,000 people were jailed for political opposition while about 20,000 people may have been tortured at a single time. 
Due to the rise of an armed left movement, the institutional act AI-5 was enacted. The act declared that subversive acts would be combated by juridical instruments. AI-5 eliminated habeas corpus in national security violations cases and legalised the use of confessions extracted under torture for prosecutions of opponents. 
Picture from André Gustavo Stumpf
At military courts, prosecutors and lawyers are non-military, civilian Supreme Court was the final decision.   
The military courts system and justice in Brazil consisted of both military and civilian actors. Security forces, typically from the military and police, would apprehend suspects. Prosecutors and defense lawyers were civilians. Civilian prosecutors worked in the Military Public Ministry and were chosen by legal examination while defense lawyers were court-appointed. Civilian judges served as judges alongside military officers and the former were civil servants who tended to dominate legal judgements due to superior legal knowledge and due to the short-terms served by military judges (a three-month term). Each court consisted of four military officers and a civilian judge. 
The Brazilian military court system consisted of a federal system where military courts existed in each district. There were twelve military court districts (CJMs or Circunscricoes Judiciarias Militares) with the legal jurisdiction corresponding to the territorial base of the military in that district. These courts were the courts of first instance in the area. The Superior Military Court (STM) was the court of military appeal where cases from the regional military courts were often sent. Cases judged by the STM could be appealed to the civilian Supreme Court (STF), which is the court placed highest on the judicial structure. 
Civil society groups, such as the Brazilian Bar Association (OAB or Ordem dos Advogados do Brasil), peace commissions (CJP or Cimssao de Justica e Paz), and the amnesty committees (CBAs or Comites Brasileiros pela Anistia) monitored court judgements and would pressure the junta for reform. 
The military courts did not investigate or prosecute allegations of torture of prisoners and judges would have been fired if they conducted such investigations. This is especially so in the period between 1968 to 1974. 
In a study by Vannucchi Leme of 202 cases of defendants from the urban guerrilla group Acao Libertador Nacional or National Liberation Action, the military courts followed the position of the prosecutors 60.89 percent.  At the level of the STM however, the court accepted the charged for 88.48 percent of the defendants. There was also a great deal of consistency between the lower and higher levels of court hierarchy as the federal prosecutor, in the large majority of cases, maintained the verdicts and sentences of the lower level courts. At the highest level, the cases that went to the civilian Supreme Court were handled by the civilian federal prosecutor’s office (Procurodoria Geral da Republica). In the aforementioned sample, the Supreme Court accepted the judgements of the civilian federal prosecutor in 66.66 percent of the cases. This lower rate indicates that the STF has a higher degree of independence than the STM and the courts of first instance. 
Fundamental rights recognized, acquittal rate even higher in higher courts.
7,367 defendants had appealed their cases to the STM. The 42 percent (the largest category) of crimes tried by these courts was belonging to a banned organization. In addition, 11.7 percent of the charges were for participation in a mass movement. Thus, over 50 percent of cases tried was for membership or participation in a ‘subversive’ group. 12.7 percent of cases were for the expression of ‘subversive’ ideas. By contrast, only 12.5 percent of cases were for violent or armed action. These data show that the military courts were primarily used to repress opposition movements, critics and political discourse rather than to protect against national security, which contradicts Pessoa’s justification. 
Despite these data, the military courts in Brazil had relatively high acquittal rates, which suggest that the courts, to a certain extent, formally recognised the rights of individuals over state repression. Data from Perreira shows that from a sample of 257 cases involving 2,109 defendants, there was a 54 percent acquittal rate in the regional military courts. In the STM, based on a sample of 40 cases, the acquittal rate was even higher, approximately 60 percent. In the regional military courts, the acquittal rate for nonviolent crimes (the majority of the cases) was 57 percent, while the figure for violent crimes was 46 percent. This shows the relatively lenient nature of the military courts for crimes such as public assembly and freedom of expression. In the STM, the acquittal rate for nonviolent crimes is 73 percent and for violent crimes, the figure is 46 percent. Indeed, from the sample, three of the four charges which has had the highest acquittal rates were subversive propaganda, trade union activity and offense against authority. This is demonstrated by the Table below: 
From the sample used by Perreira, the acquittal rates varied considerably by state, which is expected due to the federal nature of Brazil’s political system. Large, populous cities such as Rio de Janeiro and Sao Paolo had acquittal rates which were close the national average, while courts in more peripheral areas such as Parana, Bahia and Pernambuco had the lowest acquittal rates, while other peripheral states such as Para, Ceara and Rio Grande do Sul had the highest acquittal rates. The only exception to this is the ‘crime’ of membership in a ‘subversive’ organisation. 
In examining the sentencing of political prisoners. From Perreira’s sample of 246 cases involving 1,830 defendants, the average sentence for those convicted of political crimes in the regional military courts was less than four years. In Table IV below, approximately 63 percent of all those sentenced in the regional military courts received sentences of four years or less. As for longer incarceration sentences, 12.48 percent of all convicted defendants were sentenced to ten years or longer. Remarkably, while capital punishment existed, no one was executed (legally).
The variation between regions is also seen in the sentencing handed down by military courts. The average sentences in the courts range from eight to ten years respectively in Mato Grosso and Belo Horizonte to six months in Para and just under a year in Brasilia. What is striking, as discovered by Perreira’s study is that courts with high acquittal rates such as Rio Grande do Sul and Ceara had low average sentences. 
Another remarkable feature of Brazil’s authoritarian legality is that there was sufficient transparency surrounding the military trials of civilians that the public could involve itself in contestation of legal rulings. This is aptly seen in the case of Teodomiro Romeiro dos Santos, a member of the Brazilian Revolutionary Communist Party (PCBR or Partido Comunits Brasileiro Revolucionario) who was sentenced to death in 1971 for the murder of an air force sergeant. In response to the sentence, the Brazilian press and key societal figures such as human rights lawyers, the vice-leader of the lower house, the archbishop of Salvador and newspaper Jornal do Brasil heavily criticised the decision. The public criticism had a significant effect as when the case was appealed to the STM, Teodomiro’s sentence was commuted to life imprisonment, and in a further appeal to the civilian Supreme Court, to 30 years in prison. 
(N.B.: The information, data sets and tables are obtained from Anthony W. Pereira’s book Political (in) justice: authoritarianism and the rule of law in Brazil, Chile, and Argentina). 
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