Persistence of Authoritarianism: What the Brazilian Criminal Justice System offers for the Venezuelan Transition

I. Introduction

According to The Economist’s Democracy Index (2024), Brazil was classified as a “flawed democracy”: better than hybrid and authoritarian systems, but with institutional weaknesses and a risk of setbacks. Unlike Venezuela, an authoritarian regime, Brazil has free and fair elections and an independent judiciary.

The Democracy Index devotes a section to Brazil, titled “Brazil’s Democracy at Risk,” which highlights the politicization of institutions: neither the criminal justice system nor the judiciary is immune. It cites the seven-year-long investigation into fake news targeting the electoral system and threats against the judiciary’s leadership, with no end in sight.

Observers viewed as critical the decision by the Federal Supreme Court (STF) to block access to X (formerly Twitter) for violating domestic law and the order to shut down accounts spreading hate speech and anti-democratic rhetoric capable of influencing the 2024 municipal elections. The suspension, which affected millions of users for two months, allegedly imposed excessive restrictions on freedom of expression. Another factor was the attempted coup against President-elect Luiz Inácio Lula da Silva, led by former President Jair Bolsonaro with the support of the armed forces. Those responsible were convicted of criminal offenses and are serving prison sentences, demonstrating the institutional capacity to hold accountable those who attempt to overthrow democracy—something the country failed to do with regard to those responsible for the civil-military dictatorship (1964–1988), as determined by the Inter-American Court of Human Rights in the Gomes Lund Case (2010).

Brazil is a democracy, albeit not a fully fledged one: the coup was averted and its perpetrators punished. Judicial independence is well-established, reinforced by guarantees of irremovability, tenure for life, and the inviolability of judicial salaries—unlike Venezuela, which maintains provisional judges freely appointed by the government, as the Inter-American Court of Human Rights (IACHR) noted in the Reverón Trujillo case.

Brazil’s young democracy, however, is still in the process of consolidation: there is a disconnect between the law and institutional practice, which remains entrenched in a legal culture that perpetuates authoritarian practices even after democratization.

II. Criminal procedural guarantees, human rights, and democracy

For ICCAL, democracy is inseparable from human rights, which leads to the inclusion of the guarantees of the accused’s right to a defense under Article 8 of the American Convention on Human Rights (ACHR) within the concept of democracy. The criminal process is thus a prime arena for evaluating democratic consolidation, based on guarantees such as the presumption of innocence, a full right to defense, and the adversarial process.

Criminal proceedings are merely the locus of state decisions: arbitrary conduct is embedded in the institutions of justice, and the de facto relationships between suspects and institutions reveal the prevalence of real power over legal and constitutional parameters, as in the case of systematic police violence: “Operation Containment,” in Rio de Janeiro (2025), resulted in at least 121 deaths and 113 arrests, making it the deadliest police operation in Brazil’s recent history. The IACHR highlighted evidence of extrajudicial executions and demanded a prompt investigation, accountability, and full reparations. Such violations had already been recognized in the Favela Nova Brasília Case (2017).

III. Patterns of persistent authoritarianism in Brazil

Our research identifies three recurring mechanisms through which authoritarianism persists in the Brazilian criminal justice system.

The first is the indiscriminate combination of legal instruments from the old regime with those of the new, through interpretive maneuvers that normalize arbitrary practices within a democratic constitutional framework. The Brazilian Code of Criminal Procedure of 1941, enacted during the Estado Novo dictatorship and inspired by the Rocco Code of the Italian fascist regime, was never fully replaced but rather reformed in parts: authoritarian mechanisms coexist with conventional safeguards, and the courts choose, on a case-by-case basis, which layer of the legal framework to apply.

The second is the failure to hold public officials accountable for human rights violations. This year marks the 34th anniversary of the Carandiru Massacre: in 1992, 111 unarmed prisoners were killed by military police while suppressing a prison riot. Not a single police officer served a prison sentence: their jury-imposed convictions were overturned, and Bolsonaro ultimately granted them pardons, despite IACHR Report No. 04 of 2000.

The third issue is the lack of structural institutional reforms following democratization. Without effective transitional justice, preexisting structures remained in place: although new procedures gained legal standing, judicial practices continued to be based on rationales forged under authoritarianism.

The National Truth Commission’s report notes that the Federal Supreme Court (STF) received reports of torture committed by state agents during detentions, and that the justices not only failed to act to prevent it but also admitted confessions obtained under torture to incriminate the accused, corroborated by other evidence.

Since 1988, pretrial detention—intended as an exception—has functioned as the rule and as a form of punishment in advance. However, when the STF makes efforts to correct this course—as in the collective habeas corpus case 143.641, which replaced pretrial detention with house arrest for pregnant women or mothers of children up to twelve years of age, with certain exceptions—a significant number of trial court judges resist complying with the order.

It is worth recalling the extraordinary measures taken by the STF itself, such as the excessive expansion and prolongation of ex officio investigations and procedural unpredictability, which have been criticized by the Brazilian Bar Association (OAB).

IV. Brazil’s contributions to Venezuela

Although Brazil and Venezuela are different—one authoritarian, the other an imperfect democracy—in Venezuela, as noted in Carolina Bejarano Martínez’s article, repression and violence are integral to the state structure: arbitrary detentions, extrajudicial executions, and forced disappearances are normalized within the institutional culture. Something similar occurs, as explained, in Brazil. According to Edward Pérez and Marianna Romero, the Venezuelan justice system tolerates human rights violations by failing to hold state agents accountable and by validating evidence and arrests obtained through unlawful means, including torture; something similar occurs in the Brazilian justice system.

Judicial independence is necessary, but not sufficient, for Venezuela to overcome the authoritarianism entrenched in its institutions and reestablish the judiciary as the guarantor of fundamental rights: an authoritarian culture can persist even after democracy is achieved. Venezuela will need an effective transitional justice system that investigates, prosecutes, and holds judges criminally accountable—with the procedural safeguards so vital to democracy—and that reforms the structures of the judiciary by replacing all high court justices who tend to perpetuate an authoritarian mindset within a democratic framework. This does not mean that everyone should be held accountable: due process must be guaranteed, with sanctions imposed only if necessary and proportionate to individual conduct, in strict accordance with the law. In the meantime, all justices of the high courts must step down from their positions and be replaced.

In the reconstruction of Venezuelan institutions—as in the effort to democratize the criminal justice system in Brazil—given the inability of domestic institutions to enforce constitutional and treaty-based norms in the face of actual power dynamics, the ICCAL is the most promising proposal for addressing these authoritarian continuities through the integration of constitutional law and international human rights law: through instruments such as conventionality review and inter-court dialogue, which can strengthen procedural safeguards, limit institutional arbitrariness, and contribute to full democratization.