Amnesty and conventionality control: the case of the events of January 8, 2023, in Brazil
Marina Soares da Fonsêca
Thiago Oliveira Moreira
Editorial Note
This opinion article was submitted spontaneously by the authors, having been sent to the email revistapensar@unifor.br on March 9, 2026. After editorial analysis and subsequent exchange of emails with the authors, the manuscript was approved for publication in the Opinion Articles section.
The ideas and positions expressed in this text are the sole responsibility of the authors and do not necessarily reflect the institutional position of Pensar – Revista de Ciências Jurídicas.
Text
On January 8, 2023, radical groups invaded and ransacked the main seats of power of the Federative Republic of Brazil, the National Congress, the Planalto Palace (seat of the executive branch), and the Federal Supreme Court (Supremo Tribunal Federal - STF), in Brasília. Coming one week after the inauguration of President Luiz Inácio Lula da Silva, these attacks were explicitly aimed at challenging the election results and destabilizing the constitutional order. The events have led to hundreds of investigations and criminal prosecutions, targeting both the perpetrators and the instigators and financiers.
Amnesties and conventionality control in Brazilian law
In recent years, the Brazilian federal courts have consistently reaffirmed the need to review Law No. 6,683/1979, known as the amnesty law, adopted in 1979 to end the dictatorial period and grant criminal amnesty at the end of the military regime, by setting aside its effects in cases involving crimes against humanity, in accordance with the jurisprudence of the Inter-American Court of Human Rights.
By way of illustration, the 5th Chamber of the Federal Regional Court of the 3rd Region (TRF-3) upheld an appeal by the Federal Public Prosecutor's Office (Ministério Público Federal - MPF), ordering the acceptance of criminal charges against two forensic doctors for false statements and concealment of corpses in connection with deaths that occurred during the military dictatorship.
In this decision, the reporting judge recalled that Brazil is subject to the jurisdiction of the Inter-American Court of Human Rights, whose judgments must be respected both in their direct effects and in the interpretation of domestic law. This approach has been institutionally reinforced by the creation, within the National Council of Justice (Conselho Nacional de Justiça - CNJ), of Units for Monitoring and Controlling the Enforcement of Inter-American Court Decisions (UMFs), by CNJ Recommendation No. 123/2022, and by the National Pact of the Judiciary for Human Rights.
The Inter-American Court of Human Rights has been categorical in landmark cases such as Gomes Lund et al. (Guerrilha do Araguaia) v. Brazil and Herzog et al. v. Brazil: States may not resort to legislative measures, including amnesties, to prevent the investigation, prosecution, and punishment of serious human rights violations. This interpretation is not limited to dictatorial contexts. In the case of Márcia Barbosa de Souza v. Brazil, the Court affirmed that any political or legislative obstacle hindering the accountability of public officials constitutes a direct violation of the American Convention on Human Rights.
It should also be noted that Brazil was condemned in December 2025 by the Inter-American Court in the case of Leite, Peres Crispim et al. v. Brazil for failing to fulfill its obligation to investigate. In its ruling, the Court specified that the provisions of the Brazilian amnesty law could not constitute an obstacle to the investigation of the facts or to the identification and punishment of those responsible. It also reiterated that these provisions could not have identical or similar effects in other cases of serious violations of human rights guaranteed by the American Convention.
The acts of January 8 and the inter-American ban on impunity
The attacks of January 8, 2023, constitute a type of violation that the Inter-American human rights system considers particularly serious, due to the damage caused to democratic order, the separation of powers, the integrity of representative institutions, and the functioning of the rule of law. In this context, the argument that the National Congress could adopt an amnesty in the absence of an express constitutional prohibition now appears outdated.
The Inter-American Court recognizes that national parliaments also exercise control over compliance with conventions, including as a preventive measure, and must bring their actions into line with the State's international obligations. What it consistently rejects, however, is the use of legislative prerogatives to establish institutionalized impunity in the face of attacks on democracy or serious human rights violations.
Any amnesty for the acts of January 8 would thus reproduce, in the 21st century, a logic of structural impunity already condemned in the context of the military dictatorship, not because of the identity of the facts, but because of the similarity of the legal mechanisms used to erase responsibility. Such an initiative would expose Brazil to renewed international scrutiny and compromise the credibility of the Public Prosecutor's Office, the judiciary, and the internal mechanisms put in place to enforce international decisions.
In this sense, the precedent set in Direct Action of Unconstitutionality (ADI) No. 7.330, relating to the Christmas pardon granted by presidential decree to those convicted of the Carandiru massacre in São Paulo in 1992, sheds light on the debate. It shows that a state measure that significantly reduces the penalties applicable to serious crimes can have the effect of impunity. However, the text approved in December 2025 by the Chamber of Deputies, which modifies the rules for determining sentences, leads to a substantial reduction in the penalties applicable to those involved in the events of January 8 and is, as such, likely to produce a similar effect.
Rosa Weber, in her capacity as President of the Federal Supreme Court, recognized in a preliminary ruling handed down in January 2023 that favoring perpetrators of serious human rights violations undermines human dignity, disregards the recommendations of the Inter-American Commission on Human Rights, and neutralizes the state's duty to investigate, prosecute, and punish.
The same reasoning applies to legislative initiatives aimed at mitigating the criminal response to acts directed against the democratic order. By recreating a mechanism of impunity incompatible with the American Convention on Human Rights, they are essentially forms of indirect amnesty, which have already been rejected by both the Supreme Federal Court and the Inter-American Court of Human Rights.
The same logic applies to bills currently under discussion in the National Congress, notably Bill No. 5,064/2023 in the Federal Senate and Bill No. 1,815/2025 in the Chamber of Deputies, which seek to grant amnesty to those involved in the events of January 8. By reducing or neutralizing the criminal response to conduct directed against the democratic order, these initiatives recreate a mechanism of impunity that is incompatible with the American Convention on Human Rights.
Democracy is not defended by forgetting, but by accountability. By recognizing the jurisdiction of the Inter-American Court of Human Rights, Brazil has committed itself to respecting a jurisprudence that unequivocally condemns any amnesty that prevents the State from responding effectively to attacks against the democratic order. As such, legislative initiatives aimed at granting amnesty for the acts of January 8, 2023, are unconventional and contrary to the Brazilian state's international obligations.
Author Information
Prof. Dr. Thiago Oliveira Moreira
Associate Professor at UFRN. Ph.D. and Master’s degree in Law from the University of the Basque Country, and a Master’s degree in Law from UFRN. Coordinator of the PPGD/UFRN. Leader of the research group “International Human Rights Law and People in Situations of Vulnerability.” Member of the Federal Justice system (JF5) and the Federal Justice of Rio Grande do Norte (JFRN).
Professor Associado da UFRN. Doutor e Mestre em Direito pela Universidade do País Basco e Mestre em Direito pela UFRN. Coordenador do PPGD/UFRN. Líder do grupo de pesquisa “Direito Internacional dos Direitos Humanos e Pessoas em Situação de Vulnerabilidade”. Membro da Justiça Federal (JF5) e da Justiça Federal do Rio Grande do Norte (JFRN).
Marina Soares da Fonsêca
Master’s candidate in Law at PPGD/UFRN. Member of the research group “International Human Rights Law and People in Situations of Vulnerability”.
Mestranda em Direito no PPGD/UFRN. Integrante do grupo de pesquisa “Direito Internacional dos Direitos Humanos e Pessoas em Situação de Vulnerabilidade”.
Keywords
Amnesty; Conventionality control; Inter-American Court of Human Rights; January 8 events; Democracy; Human rights.
