CONSTITUTION AND THE SUPRA-LEGALITY OF INTERNATIONAL HUMAN RIGHTS TREATIES IN BRAZIL

A CRITICAL ANALYSIS OF THE CAUSES, LEGALITY AND CONSEQUENCES

Abstract

The Federal Supreme Court (STF), in a recent decision, the ADPF No. 54, opined the decriminalization of abortion of anencephalic fetuses, which directly contradicts the thesis supralegalidade of International Treaties on Human Rights (TIDH). After decades in one consolidated doctrine in understanding the validity of international treaties as ordinary legislation, the Supreme Court decided, in 2008, two cases that marked its history forever: the ADIN 3510 and RE 466.343-1/SP. It was at the Extraordinary Appeal (RE) 466.343-1/SP in assessment as to the unconstitutionality of prison unfaithful trustee, in all forms of deposit, in the face of the International Treaty on Human Rights (Pact of San José, Costa Rica), which STF suffered a paradigm shift in their decisions. This trial has become a “leading case” on internalization of treaties that deal with human rights, to the 25th edition of binding precedent in 2009 by the Brazilian Constitutional Court considers that, until then, civil wrongful imprisonment of an unfaithful trustee whatever the mode of deposit, arguing the supralegalidade, endowed with clear efficacy supraconstitutional. Thus, the present study sought to critical analysis of internalization in character supralegal Pact of San José, Costa Rica, whose membership was expressed by Brazil in 1992, its reasons, its foundations and its consequences in the legal system. There will be a literature review of research and collation of parts of sentences of the Supreme Court, opposing viewpoints and distinct doctrine addressed by extracting the completion of critical collated.