Torture was prohibited in the 1940 Penal Code, because that code, in force at the time of the facts defined, inter alia, the following crimes that were committed in this case: Bodily injuries; 354 Danger to the life or health of another person; 355 Failure to offer assistance; 356 Illtreatment 357 and Murder. 358 In addition, torture was considered an aggravating circumstance in other crimes established in this Penal Code (article 61(II)(d)). 359 Also, these definitions of criminal offenses formed part of the national legal conscience, as revealed by the provisions of all Brazil’s codes since its independence: Criminal Code of the Empire of Brazil, article 192, in relation to the general aggravating factors of article 16, section I, paragraph 6, and article 17, paragraphs 2, 3 and 4; 360 Republican Code, article 294, in relation to article 39, paragraph 5, and article 41, paragraphs 2 and 3. 361 306. The Court finds that it is totally unreasonable to suggest that the perpetrators of these crimes were not aware of the illegality of their actions and that they could eventually be subject to the action of justice. No one can argue that they are unaware of the wrongfulness of murder or aggravated murder and torture by pleading that they were unaware of its nature as a crime against humanity, because the knowledge of illegality that is sufficient to find someone guilty does not require this awareness, which only contributes to the imprescriptibility of the crime. Generally, it is sufficient that the agent is aware of the unlawfulness of his conduct, especially considering the restrictive provision concerning the relevance of a misunderstanding included in Article 16 of the Penal Code in force at the time of the facts: “[i]gnorance or misunderstanding of the law does not exclude the punishment.” 354 1940 Brazilian Penal Code, article 129: To injure the bodily integrity or health of others. 355 1940 Brazilian Penal Code, article 132: To expose the life or health of others to direct or imminent danter. 1940 Brazilian Penal Code, article 135: To fail to offer assistance when this is possible without risking one’s life to […] a person who is disabled, destitute, or in grave and imminent danger; or, in such cases, not to request help from the public authorities. 356 357 1940 Brazilian Penal Code, article 136: Expose to danger the life and health of persons under one’s authority, custody or surveillance, either depriving them of food or essential care, or subjecting them to an excessive or inadequate load, or by abusing of correctional or disciplinary measures. 1940 Brazilian Penal Code, article 121: Murder. § 2 If the murder is committed: I – for payment or promise of reward, or other wrongul reason; II – for a futile reason; III – using poison, fire, explosives, suffocation, torture or other cruel and insidious method, or one that may cause common danger; IV - treacherously, by ambush, or by dissimulation or the use of any other device that makes it difficult or impossible for the victim to defend himself; V – to obtain the perpetration, concealment, impunity or advantage of another crime. Penalty – twelve to thirty years’ imprisonment. 358 359 See Expert opinion of Renato Sergio de Lima (evidence file, folios 14153 and 14154); Report of the National Truth Commission, 2014 (evidence file, folio 808). 360 Law of December 16, 1830. Penal Code of the Empire of Brazil. Murder. Art. 192. To kill someone with any of the aggravating cirumstances mentione in article 16, Nos. 2, 7, 10, 11, 12, 13, 14 and 17. Art. 16. Aggravating cirumstances are: [...] 6. That the offender is superior due to sex, force, weapons, so that the victim cannot defend himself with the probability of being able to repel the attack. [...] Art. 17. Crimes shall also be considered aggravated: [...] 2. When the physical pain is increased more than ordinary by some special circumstance. 3. When the harm produced by the crime is increased by some especially reprehensible circumstance, 4. When the harm produced by the crime is increased by the irreparable nature of the damage. Available at http://www.planalto.gov.br/ccivil_03/leis/lim/lim-16-12-1830.htm. Cf. Araujo Filgueiras Junior, “Código Criminal do Império do Brazil annotado,” Rio de Janeiro, 1876, pp. 17, 20 and 214. 361 Decree No. 847, of October 11, 1890. Penal Code. Art. 294. To kill someone. Art. 39. Aggravating cirumstances are: […]§ 5 That the offender is superior due to sex, force, weapons, so that the victim cannot defend himself with the probability of being able to repel the attack; [...] Art. 41. The following shall also be considered aggravating cirumstances of a crime: [...] § 2. When the physical pain is increased by acts of cruelty; § 3. When the harm produced by the crime is increased by some especially reprehensible circumstance, or by the irreparable nature of the damage. Available at: http://www2.camara.leg.br/ legin/fed/decret/ 1824-1899/decreto-847-11-outubro-1890-503086-publicacaooriginal-1-pe.html. Cf. Alvarenga Netto, “Código Penal Brazileiro e leis penaes subsequentes”, Rio de Janeiro, 1929, pp. 35, 36 and 141. 81