SUPERIOR TRIBUNAL MILITAR (STM)
Address: Praça da República, 123, Centro, Rio de Janeiro, RJ
Themes: Repressive Structures
Translated from the Portuguese by Lara Norgaard
The Superior Military Tribunal (STM) was established through article no. 106 of the 1946 Constitution, consolidating the military’s ability to judge crimes perceived to be a threat to national security in addition to defining how the court would function and be structured. The STM heard appeals in the Military Courts, a system that already included the Council for Military Justice and the Military Courts. Even though they were legally designated only for trials of members of the armed forces, the military courts also came to judge civilians because of institutional acts passed under the dictatorship. Consequently, the courts became a branch of the repressive structure targeting political opposition. The shift required building a legislative and institutional framework for the persecution of dissidents, one that masked cases of human rights violations with the illusion of legality. The STM building was located in the center of Rio de Janeiro through 1973, when it was transferred to the new capital, Brasília. It should be noted that the experience of this period in Brazil differed from that of other countries in the Southern Cone such as Argentina and Chile in how Brazil’s dictatorship did not create an entirely new judicial system, but maintained its former structure while broadening the scope of the military courts.
Military courts had been present in Brazil since 1808, which is when the Superior Military Council, an entity that can be seen as the precursor to the current STM, was formed. With the emergence of the Brazilian Republic, the Council became the Superior Military Tribunal, but it was only with the 1946 Constitution that the court was integrated into the Judiciary Branch, with ten official judges and five members of the armed forces on its bench. Other military courts were also located in Rio de Janeiro, each made up of one official judge and four members of the armed forces, which acted as the first step before appeals in the justice system. Each Brazilian state had a military court except for Rio de Janeiro – which had seven courts, two from the navy, three from the army, and two from the air force – and São Paulo and Rio Grande do Sul, which both had three courts. Under the dictatorship, decisions from the military court were grounded in the 1938 Code of Military Justice, the 1944 Penal Military Code, the 1946 Constitution, and the 1953 National Security Law, which altered the jurisdiction of the court as new decrees and laws passed. One could say that the “set of 17 institutional acts reveals the strengthening of the executive branch, which […] began overriding the other branches of government, especially the judicial branch” (Brasil, 2014, p. 936).
Legal texts produced between 1967-1968 lengthened sentences and broadened the set of actions considered to be threats to national security, showing how “In authoritarian systems, national security laws […] are laws meant to deal with specific situations” (D’Araújo, 2010, p. 225). It is not random that crimes such as bank robbery, which up until the dictatorship had been tried in civil court, came to be a crime against national security with the goal of giving harsh sentences to activists in leftist political organizations. Ultimately, this resulted in military trials against civilians who were not necessarily connected to political or ideological movements (D’Araújo, 2010, p. 228-229).
Immediately following the 1964 coup and the creation of the First Institutional Act, very little changed in the judicial branch. In other words, trials against supposed crimes against the state defined in the 8th article of the same institutional act still fell under the jurisdiction of state courts. However, it was impossible to control the outcomes of those trials, in part because the state courts were decentralized and judges relatively independent. This led the military leaders to change the structure of the judicial branch, principally through subsequent institutional acts. Those changes were mostly the creation and/or transfer of court jurisdiction for trying and sentencing people (people who opposed the regime, in particular) as well as swift removal of those holding public office, judges, auditors, and even members of the Federal Supreme Court (STF).
The STF always filed Ordinary Criminal Appeals and habeas corpus requests in the case of those accused of political crimes. Under the First Institutional Act, the STF regularly granted habeas corpus to civilians, which created political tensions between that court and the STM, as seen in the case of governor of Pernambuco, Migues Arraes.
An emblematic case from the days following the coup is that of the “nine Chinese.” Nine Chinese people in Brazil through an official commercial project with the Chinese government were arrested and tortured in the Department of Political and Social Order of the State of Guanabara (DOPS/GB) on April 3, 1964. No interpreter was present during the interrogation carried out by deputy Gustavo Borges. The nine Chinese citizens faced trial in the military courts on the charges of corrupting Brazil’s political and social order and of secret espionage in national territory. In 1964, the 2nd Army Court sentenced them to ten years in prison, a decision that reflects the military court’s position on the coup d’état and shows how the court system used legal mechanisms to defend the military regime’s legitimacy. The military regime deported the nine Chinese citizens in 1965, but it was only in 2014 that the Brazilian State revoked the writ of expulsion without officially apologizing or mentioning reparations.
One of the recurrent ways in which the STF justified granting political opposition habeas corpus was the STM’s incompetency, even if cases fell under the National Security Law. This led the military government to establish the Second Institutional Act (AI-2) on October 27, 1965, expanding the jurisdiction of military courts to crimes threatening national security, “according to Law no. 1,802/1953 and Decree-Law no. 313/1967” (Brasil 2014, p. 947). The bench of the STM and STF also grew in size.
The AI-2 can be seen as the ‘beginning of the state’s intervention into the supreme court’ […] The military court’s jurisdiction expanded to civilians for crimes against national security, that is, domestic security and not just crimes related to foreign security, Additionally, the STM imposed required prior evaluation for habeas corpus in cases of threats to national security before the case went to the STF, suppressed specific laws (e.g. media law) when applied to national security, and even removed privilege l (“foro privilegiado”) for crimes outlined in the National Security Law (Acervo CEV-Rio, 2015, p. 73).
In 1965, before the AI-2, only state courts with standard jurisdictions could try civilian cases. But after the AI-2, military courts could investigate and try civilians suspected or accused of violating the National Security Law as well as refer political crimes committed against national interests to be tried in first instance by the recently created Federal Court.
Members of the three branches of the armed forces – the army, navy, and air force – also acquired investigative powers. They had the authorization to arrest people and open Military Police Investigations (IPM), which were later sent to the military court of the appropriate branch of the armed forces. It could be either the Army Intelligence Center (CIE), the Navy Intelligence Center (CENIMAR), or by the Air Force Intelligence and Security Center (CISA) located in the Air Force Ministry that would ultimately carry out the investigation. 1
Investigations would also land in the hands of the State Civil Police or the DOPS/GB. Cases from the Civil Police would be handed to state and federal courts, while Military Police Investigations (IPMs) were sent to military court. It is important to note that IPMs did not hesitate to use torture in order to draw out information. Despite being used as evidence during trials, the investigations were not made available to the victims’ lawyers, which indicates their legal fragility. The military courts were responsible for receiving and investigating allegations and were even able to demand preventative imprisonment or expedite the release of prisoners. In practice, the courts acted as interrogation centers that formed a robust network of repression in conjunction with the National Intelligence Service (SNI), a sophisticated system of information control. The SNI encompassed “intelligence services for the three branches of the armed forces, the state police forces, the Federal Police, and all agencies designed to oversee national security” (D’Araújo, 2010, p. 229).
The dictatorship established a new national constitution in 1967 that “catalogued fundamental rights and protections, but in only in the most superficial way given restrictions on the application of those rights and the ways in which they could be suspended” (Brasil, 2014, p. 936). Just one year later, on December 13, the Fifth Institutional Act (AI-5) was established, expanding and intensifying the authoritarian system – starting by shutting down the National Congress and removing habeas corpus as a recourse for those accused of political crimes. After the AI-5, the STM began to act as an extra-judicial court that would hear appeals in trials against those accused of threatening national security.
The Fifth Institutional Act (AI-5) would only be repealed in 1978 under General Ernesto Geisel, once laws that created the state of exception went under review and the amnesty law was passed.
The project Brazil: Never Again investigated decisions carried out by the military courts. Coordinated by Paulo Evaristo Arns, Rabbi Henry Sobel, and Presbyterian pastor Jaime Wright, the project collected and analyzed information from 707 STM trials from 1961-1979, revealing the courts’ grave human rights violations. The initiative was central to pointing out the systematic use of torture, even though the number of cases examined does not represent the total number of imprisoned people tortured by the authoritarian state. The documents show judges’ knowledge of the use of torture against political activists: it was common to prohibit defendants from mentioning torture, to suppress the information, or to understate what took place through statements like, “the victim alleges having suffered the use of physical and psychological force” (Arquidiocese de São Paulo, 1985, p. 15). Inês Etienne Romeu, one survivor from the “Casa de Morte” – House of Death – states that during her trial in front of the 3rd Army Court, she tried to report the violence that she had suffered while detained but the judge “prevented her from doing so – on the grounds that everything relevant to the case was already on the table” (Acervo CNV. 00092.000660/2013-31.). Moreover, in 1972, Amnesty International published a report analyzing the case of Lúcio Flávio Uchôa Regueira who had been imprisoned in the Department of Information Operations – Center for Internal Defense Operations (DOI-CODI). While on trial, a judge in the military courts prevented him from mentioning the torture he had already suffered:
The judge, Jacob Goldenberg, did everything possible to prevent Regueira from saying what he wanted to say in addition to distorting his statements about the abuse he had suffered at the hands of torturers, whom he indicated by name. The victim alleged that he was tortured again with electric shocks as punishment for testifying, and that his torturers wanted to know how he had discovered their names (Anistia Internacional, 1972, p. 26).
One of the most emblematic STM cases took place in 1981, during the political opening. It had to do with the attack in Riocentro in which a bomb exploded, accidentally killing Sergeant Guilherme Pereira do Rosário and wounding a former captain, Wilson Dias Machado. In 1982, the investigation into the attack closed due to a lack of evidence in regard to the perpetrator. However, in 1985, a request to reopen the case was filed, and there was a trial in March 1988. According to the STM:
Despite there being enough evidence related to the events and its perpetrator in relation to the soldiers wounded in the attack, there will be no conviction, since “the reprehensible actions that took place are covered under amnesty […] and silence should cloak them totally, as is the State’s will” […]. For the first time, a court, through its corollary, applied the Amnesty Law broadly to soldiers, using amnesty for events that took place after the law was passed in 1979 (Brasil, 2014, p. 949 – 950).
The final revision of the National Security Law took place in 1983 – consequently, it is the same law that is in force in Brazil to this day. That means that civilians can still be tried by the military in the case of threats to national security, which is anachronistic in a democratic political system. Additionally, the very existence of the STM implies that soldiers and civilians to this day are subject to trial by military court, a situation grounded in the Military Penal Code and the Military Penal Trial Code, both from 1969, and by the National Security Law (Law no. 7,170/83). With the expanded actions of the Armed Forces in public security, most notably military operations carried out in favelas in Rio de Janeiro, military courts have held civilians in cases against military police of police brutality in contempt. These trials are problematic, not only because they are grounded in an obsolete framework for national security, but also because they harm civilians who are not even involved in criminal activity. In August 2013, the Attorney General of the Republic used a legal precedent – The Arrangement of Default of Basic Precept (ADPF) 289 to petition the Federal Supreme Court to recognize the military court’s inability to try civilians in times of peace and that standard courts should hear their trials. The Supreme Court has yet to address the petition.
- Centro de Informações do Exército (CIE): Na cidade do Rio de Janeiro, CIE localizado na sede do Ministério da Guerra, Central do Brasil, avenida Presidente Vargas; Centro de Informações da Marinha (Cenimar): localizado no Ministério da Marinha, na praça Mauá; e Centro de Informações e Segurança da Aeronáutica (Cisa): poderia ser no Ministério da Aeronáutica, na avenida Churchill, ou no III Comando Aéreo Regional (Comar), ao lado do Aeroporto Santos Dumont.