O controle de convencionalidade das leis: os direitos humanos como paradigma da produção normativa doméstica

Abstract

The objective of this research was to investigate how the international human rights treaties conform the domestic legal system. Constitutional Amendment No. 45/2004, introduced the paragraph 3 of Article 5 of the Constitution stating that the human rights treaties, when approved by the special congressional quorum laid down therein, shall be equivalent to constitutional amendments. Moreover, important scholars have believed that the human rights treaties ratified and in force in the country, would materially constitutional status under Article 5, paragraph 2, of the Basic Law. The Supreme Court in the historic trial, found that the human rights treaties, if not incorporated by Article 5, paragraph 3, rite, would supralegal hierarchy, paralyzing the effects of infra-constitutional legislation conflicting with them. While opposing understandings of the doctrine and the Supreme Court, since that decision was sedimented the need of paternal right to observe the rules contained in such treaties, representing a new control parameter to the internal normative production, control of conventionality. Such control, as a recent and still little-known theme, deserves to be better studied. For this, it was necessary to address, first, the incorporation procedure and hierarchy occupied by such international instruments in the legal order homeland. After that, the development of this control was analyzed through its application by the Inter-American Court of Human Rights. From this it was established concept, the treaties that serve as parameters, its forms and its procedure, culminating in the analysis of some national judgments that have already applied the control of conventionality. For this study, it adopted as a method of approach, dialectical and as procedure methods, comparative and monographic.