A vida humana e a pena de morte no Brasil: limites conceituais da pena de morte aplicável no Brasil, adequações ao Direito Internacional e enfrentamentos à dignidade da pessoa humana

Abstract

The war produces huge and drastic legal consequences foreseen by the brazilian positive Order: one of them, the death penalty, object of our study. In a conceptual study of this legal institute`s features and the challenges of having the dignity of the human person as an absolute element in an Order that applies the death penalty, it will be demonstrated how the death penalty fails to meet several of the dogmatic requirements of penalties. International Law, in its turn, which provides the bellicose context to allow several extraordinary legal consequences in Brazil, on the one hand, on the other hand it still supports a scientific and positive modernization, through international documents on Human Rights, materially innovating fundamental rights present in the Brazilian national system: the death penalty, an absolute limitation of all those. After the war, it will be investigated whether International Law on Human Rights could provide corrections and be handled, for what it already presents, by the Federal Military Jurisdiction of Brazil, in the belligerent context, to rule out the application of a death penalty, for reasons that would permeate international treaties pertinent to the subject, the dignity of the human person, the International Criminal Court and its competences and also the possible grounds for sentences that condemn the death penalty. Everything on how the constitutional dictates are obeyed about new ranges of fundamental rights, now refined, modernized and optimized by international treaties pertinent to the theme. Part of this problem will be based on jurisdictional decision-making about these new and international parameters, on the one hand, and the death penalty itself, on the other. The effectiveness of the human dignity, as an unrestricted institute and constitutional foundation in Brazil, is threatened in the face of a public judicial procedure that adopts the death penalty, abandoning any parameter of dignity, fundamental rights and human rights. The study will include six cases of death sentences provided by the Superior Military Court, to exemplify our conclusions at the end of the work. We will also bring positions from competent international organizations to judge war crimes and their positions on the subject.