A aplicação do controle de convencionalidade no âmbito do Supremo Tribunal Federal e do Superior Tribunal de Justiça

Abstract

Conventionality control can be regarded as a recent effort by the Inter-American Court of Human Rights to enforce the application of human rights international protective norms in nations that abide by the American Convention on Human Rights. Given that the Inter-American Court of Human Rights has not outlined a model for the exercise of conventionality control, it is imperative the development of study to understand how this agreement has been implemented in Brazil. This study analyses the exercise of conventionality control by the Brazilian Supreme Court and the Superior Court of Justice to understand the application of the agreement in Brazil and ascertain whether its development follows the jurisprudential line established by the Inter-American Court of Human Rights. For that, the context of the emergence of the Unite Nations system and of the regional systems of human rights protection was clarified; the overall aspects of the general theory of conventionality control within the Inter-American system of human rights protection was described; the development of the theory of control of conventionality by Brazilian doctrine was deliberated; and finally, the jurisprudences of the Brazilian Supreme Court and the Superior Court of Justice on conventionality control were analysed. The methodology applied consisted of the employment of descriptive, exploratory, and evaluative methods, based on bibliographical and jurisprudential review. It has been found, through this investigation, that non-specialized Brazilian superior tribunals exercise conventionality control inadequately, thus, the country runs the risk of being internationally held responsible for human rights violations in its territory. It is hoped that the reflections promoted by this study will contribute to the academic debate on the subject and assist Brazilian justice operators, even if partially, on the exercise of conventionality control within the scope of its attributions.