The case of Merlino: Five decades fighting for justice and memory

Learn about the story of the journalist, Luiz Eduardo Merlino who was tortured and killed during the military dictatorship and about his family's fight for justice for the crime

O jornalista Luiz Eduardo Merlino, morto em 1971 pela ditadura militar. Imagem: Arquivo pessoal

Torture is still a tragic reality in Brazil. This practice has taken place at different times in history and persists today in the violence perpetrated by the State and its agents. Furthermore, there are emblematic cases that remain unresolved, such as that of Luiz Eduardo Merlino, a journalist who was brutally tortured and killed on the premises of DOI-CODI in 1971, during Brazil’s military dictatorship. 

In 2010, decades after Merlino’s death, his family filed a lawsuit in the Superior Court of Justice (STJ) in São Paulo (SP), seeking compensation for moral damages due to this irreparable loss. Conectas, along with the Arns Commission, the Vladimir Herzog Institute, the Human Rights Clinic of the Federal University of São Paulo and the Access to Justice and Dispute Resolution Center of the Getúlio Vargas Foundation Law School, submitted a request for amicus curiae (friends of the court) in order to participate in the case and offer information and support that could aid in the court ruling.

The case of Merlino: a decades-long fight

On 15 July 1971, Luiz Eduardo Merlino, who was only 23 years old, was arrested at his mother´s home in Santos. Days earlier he had returned from France where he had denounced the political violence and torture being practiced by the Brazilian military regime. Merlino was taken to DOI-CODI in São Paulo and was subjected to practices of torture for around 24 hours, under the command of Carlos Alberto Brilhante Ustra. The torture led to serious lesions and even when he was taken into hospital he did not receive the treatment he needed and died due to the deliberate negligence of those in charge.

News of his death only reached the family on 20 July 1971. From then on Merlino´s family, particularly the women, have been fighting tirelessly for justice, truth and reparation. 

On September 22, 2014, the Federal Public Prosecutor’s Office (MPF) charged Carlos Alberto Brilhante Ustra, Dirceu Gravina, and Aparecido Laertes Calandra with aggravated intentional homicide against Merlino, motivated by vile reasons and involving the use of torture, which rendered the victim unable to defend himself. The forensic pathologist Abeylard de Queiroz Orsini and Isaac Abramovitc (now deceased) were also charged with forgery, as the autopsy report they signed contained false statements and omitted information. On 30 September 2014, the charges were dismissed, citing a previous decision by the Supreme Federal Court.

The search for answers and recognition of the horrors endured during the dictatorship is a generational struggle that has remained alive for more than five decades.

The STJ declares the compensation lawsuit against the heirs of Colonel Ustra to be time-barred

In 2023, The Superior Court of Justice (STJ) confirmed the São Paulo Court of Justice (TJSP) ruling that stated that the compensation lawsuit for moral damages filed by Luiz Eduardo Merlino´s family was time-barred . The lawsuit names Colonel Carlos Alberto Brilhante Ustra, the commander of DOI-CODI at the time of the events, as the defendant. After Ustra’s death in 2015, his heirs took his place as defendants in the case.

The STJ’s decision was based on the understanding that the non-applicability of the statute of limitations, as outlined in an STJ precedent for compensation claims arising from political persecution, would not apply to this case. Minister Isabel Gallotti argued that this non-applicability of the statute of limitations could not be used in cases seeking to hold public officials directly accountable, to avoid sparking conflicts between individuals and to prevent imposing liabilities on the heirs of the person responsible for the harm, in terms of the inheritance.

The lawsuit was initiated by Merlino’s partner and his sister in 2010, while Ustra was still alive. In the first instance, the colonel was ordered to pay R$ 50,000 in moral damages to each plaintiff. However, the São Paulo Court of Justice (TJSP) ruled that the case was filed after the statute of limitations had already expired.

The request for amicus curiae

The STJ’s decision to declare the compensation lawsuit against Colonel Ustra´s heirs to be time-barred means that the right to seek financial reparation for the moral damages caused by the torture and death of Luiz Eduardo Merlino has expired. 

This decision prevents Merlino’s family from continuing with the compensation lawsuit, even though the crime in question occurred during the military dictatorship and is considered a serious human rights violation.

It is as if justice had an expiration date which trivializes the families´ pain and perpetuates the horrors of the dictatorship with impunity. 

In response to this injustice, an amicus curiae request, submitted by Conectas and other organizations, emphasizes the importance of recognizing the non-applicability of the statute of limitations for reparations in cases of serious human rights violations, such as the murder of Luiz Eduardo Merlino. This recognition is essential to ensure that crimes committed during the military dictatorship are not forgotten and are not taken lightly by the Brazilian justice system.

The organizations presented detailed research and analyses on the historical and legal significance of the Merlino case, emphasizing that the STJ’s decision could become a benchmark in Brazilian jurisprudence on human rights violations. The aim is to ensure that the Merlino family, along with so many others affected by political repression, finally obtains reparation and recognition for their struggle for justice. It is expected that these requests will be ruled upon on August 20. 

Torture during the dictatorship and the fight for justice

The Merlino case is emblematic of the extreme violence and repression that characterized Brazil’s military dictatorship. Recognizing and holding the perpetrators of these atrocities accountable is essential for building a more just society and for consolidating democracy in Brazil. Impunity for such crimes cannot be tolerated and cases like that of Luiz Eduardo Merlino must serve as a reminder of the need for memory, truth and justice.