O exercício do controle de convencionalidade pelo Supremo Tribunal Federal e sua (in)compatibilidade com o Ius constitutionale commune na América Latina

Abstract

Domestic conventionality control, understood as that exercised by the States Parties to the Inter-American System for the Protection of Human Rights, has a lot to contribute to improving the Latin American Ius Constitutionale Commune (ICCAL). Such control is one of the main tools for the development of this regional transformative constitutionalism, insofar as the States Parties draw up shared parameters to deal with common problems experienced in the Latin American region. In this sense, the higher courts play a fundamental role in the exercise of domestic conventionality control, as they establish and develop the precedents and jurisprudence to be followed by judges and courts of first and second-degree jurisdiction. The question therefore arises: does how domestic conventionality control is exercised by the Brazilian Supreme Court conform to the model of conventionality control called for by ICCAL? It is based on the hypothesis that the domestic conventionality control exercised by the Brazilian Supreme Court is limited to the classic paradigm of conventionality control, permeated by strong statism, the invalidation of effects and its non-realization ex officio, rather than the model of domestic conventionality control in line with ICCAL, which is marked by the plurality of sources of law, the overcoming of the classic paradigm of State’s sovereignty, the declaration of ineffectiveness and its realization ex officio. Thus, this dissertation seeks to investigate the correspondence between the domestic conventionality control exercised by the Brazilian Supreme Court and the promotion of human rights proposed by ICCAL. To this end, it is necessary to achieve the following specific objectives: i) to address the general panorama of ICCAL; ii) to discuss the development of the theory of conventionality control; iii) to analyze how conventionality control is exercised by the Brazilian Supreme Court; and, iv) to understand the contributions and impulses of the Brazilian Supreme Court for the improvement of ICCAL. This is a qualitative study of a descriptive nature, carried out using the deductive method, through the procedural techniques of bibliographical research and content analysis of court decisions. The research is justified by the fact that this topic is directly related to with the National Pact of the Judiciary for Human Rights, with Recommendation 123/2022 of the National Council of Justice and Sustainable Development Goal nº 16 of the 2030 Agenda, which denote its topicality and social relevance. Through this scientific investigation, it was found that the Brazilian Supreme Court’s control of domestic conventionality still falls short of what is expected, mainly due to the disregard of precedents set by the Inter-American Court of Human Rights, such as in cases involving the Amnesty Law - for which the country has already been condemned twice by the Inter-American Court of Human Rights - and in cases where the criminal type of contempt was considered conventional