The Realm of Good Intentions

Should human rights defenders welcome court decisions that punish companies for using slave labour to increase their profits? I believe that such decisions do not deserve praise when they have two characteristics: first, when they violate municipal law in their eagerness to impose the conviction; second, when the conviction cannot improve the situation of victims of slave labour.

A recent decision by a Brazilian labour court fined Volkswagen do Brasil approximately US$ 30 million to be paid into a State fund to combat slave labour and imposed a series of preventive and remedial measures, including an apology to the victims of slave labour.

This decision was praised on Verfassungsblog by Danielle Pamplona and Hartmut Rank (“historic, consistent, and necessary”). However, I would like to put forward an alternative view, as I believe the decision has the two aforementioned flaws: it does not comply with Brazilian law and lacks practical utility.

The legal flaws

The decision (which is only available in Portuguese) was rendered on 29 August 2025 by a labour court judge of first instance. Spanning 337 pages, it thoroughly documents the employment of de facto enslaved workers at a Volkswagen do Brasil subsidiary, which owned a farm in northern Brazil. These violations occurred between 1974 and 1986.

The case was brought before the courts by the Labour Public Prosecutor’s Office in 2024, half a century after the violations occurred. The facts were well-known, and extensive documentation had been published by religious groups and NGOs, as detailed in the decision. However, the prosecuting authorities and the Brazilian justice system remained inactive for 50 years, only taking up the case when most of those involved were deceased, which made it difficult to produce evidence. This is hardly consistent with the requirements of due process of law.

Given this situation, one of VW do Brasil strongest – and most obvious – arguments was the statute of limitations. The judge rejected this, stating that the illegalities committed by the slave owners are not time-barred:

“work analogous to slavery and other serious human rights violations are not subject to a statute of limitations, as recognised by the Inter-American Court of Human Rights” (p. 86).

The main justification for imprescriptibility was the need to protect human dignity (p. 105).

To understand the case – and my criticism – it is helpful to remember that Brazil was condemned, in 2016, by the Inter-American Court of Human Rights (IACHR) for its inaction in combating slave labour practices (in the Fazenda Brasil Verde case). The Court found that the Brazilian state neither punishes slave-owning corporations nor repairs the damage caused to enslaved workers. Most seriously of all, it does not take enforcement measures to prevent slave labour, particularly in rural areas.

The labour judge relied on this decision by the IACHR as a central normative parameter to determine that VW’s liability was not subject to a statute of limitations. This position was celebrated by many as progressive and the beginning of an era of accountability for those who previously benefited from the statute of limitations.

I consider the thesis of imprescriptibility to be legally flawed. The Brazilian case concerns a civil claim for damages, and the labour court did not have jurisdiction to judge crimes relating to slave labour. Therefore, the decision was based on the idea that if crimes against human rights are indefeasible, the duty to civil reparations is also indefeasible. This is a logical leap without a normative basis.

The judge himself acknowledges that he declared imprescriptibility

“although there is no express (sic) provision in the Federal Constitution or in national law regarding the indefeasibility of the crime of contemporary slave labour and its civil redress” (p. 93 of the decision).

It would be correct to say that the constitution expressly states, in art. 7, XXIX, that workers have the right to file “a cause of action for amounts due from employment relationships, with a statute of limitations of five years for urban and rural workers, up to a limit of two years after termination of the labour contract”. Labour legislation (Consolidação das leis do trabalho) establishes the same time barrier (art. 11, § 1).

The judge decides to ignore these rules, saying that constitutional provisions should not be applied “without reflection” nor serve as a shield of impunity (p. 103). In what appears to be an exercise of constituent power by a judge, he defends the thesis that the Brazilian Constitution should be applied in light of the decisions of the IACHR (p. 131):

“the reasoning used by the rulings of the Inter-American Court is part of the rationes decidendi and becomes binding judicial precedent, to be observed by the domestic judiciary” (p. 94).

And he concludes:

“The application of the statute of limitations as set out in the Penal Code, the Civil Code and the Federal Constitution […] goes against Brazil’s international obligations and the binding rulings of the Inter-American Court. This means that such domestic rules must be removed (sic) in this specific case” (p. 138).

This is not merely a logical leap, but an attempt to establish a new hierarchy of legal norms within Brazilian law. In this view, the American Convention on Human Rights takes precedence over the national Constitution, and the rulings of the IACHR take precedence over the Convention itself as the Court can insert rules into the legal system that the Convention itself does not include (in this case, imprescriptibility clauses). Constitutional standards can be overridden by IACHR rulings.

Ultimately, this decision represents a form of abdication of judicial power. In Brazil, the principle of the judge’s “free conviction” prevails, with no binding precedents except in a few cases provided for in the Constitution and legislation. Examples include the decisions of the Federal Supreme Court in direct actions of unconstitutionality (art. 102 § 2 of the Federal Constitution) and the establishment of binding interpretations (súmula vinculante, art. 103-A of the Federal Constitution).

The assertion that rationes decidendi and reasonings of an international court bind the national judiciary lacks normative basis and contradicts the Brazilian judiciary’s century-old interpretative tradition.

I see no reason to celebrate a decision riddled with so many normative misapprehensions.

The socio-political irrelevance

It is estimated that over one million Brazilians work in conditions akin to slavery. They have no labour rights, work long hours, live in unsanitary accommodation in isolated areas and are victims of threats and violence if they try to leave their jobs. They are also tied down by debts incurred through the exorbitant prices charged for transport and food at their workplaces.

Faced with this appalling situation, national legislation was tightened. Article 149 of the Brazilian Penal Code was reformed in 2003. The new provision detailed the forms of labour exploitation in conditions “analogous to slavery”, seeking to avoid impunity with the argument that the worker “freely” began the work and must now work to pay off their debts, which were also “freely” incurred. In 2016, the crime of human trafficking was introduced into the Penal Code, also committed by those who entice people to subject them to slave labour (art. 149A). The Federal Constitution was also reformed in 2014, ordering that farms that use slave labour will be expropriated without compensation and their assets seized (art. 243).

Despite their noble intentions, none of these legislative reforms has achieved significant results. Only between 2,000 and 3,000 enslaved persons are rescued each year. This is a very tiny number compared to the daily suffering of a million people. The IACHR has already criticised in the Fazenda Brasil Verde case the inefficiency of law enforcement, which allows operations that transform human beings into machines for exhausting labour in the name of profit.

How can we accept that one million Brazilian citizens are rendered invisible? This is perhaps the most serious form of invisibility experienced by vulnerable groups in Brazil. As legal scholar Oscar Vieira Vilhena put it:

“Invisibility means here that […] the loss of human lives or offence to human dignity of poor people, although reported and extensively acknowledged, is invisible in the sense that it does not result in a political and legal reaction or encourage social change”.

The conviction of Volkswagen do Brasil for slave labour is highly symbolic, prompting reflection on the role of human rights within modern corporations. However, those who exploit slave labour in Brazil, either directly or indirectly, are unlikely to consider this conviction to have any impact on their businesses. The message of the judgment may be understood as follows: “If you use slave labour in Brazil, you don’t need to worry too much. Perhaps 50 years from now, when you are long gone, your company may face reparatory injunctions. Even so, the Brazilian judiciary will re-evaluate this decision for many years across its four instances.”

Unfortunately, symbolic convictions have no preventive effect and cannot change reality. Rather than resorting to expansive but hollow judicial decisions, we should focus on strategies to eradicate slave labour by raising the issue in Brazilian politics. This is a present and future problem, not a matter of “retroactive justice”.