Mandados implícitos de criminalização: a tutela penal dos direitos humanos na Constituição e na Convenção Americana de Direitos Humanos

Abstract

This dissertation adresses whether the brazilian Constitution and the International Human Rights Law (specially the American Convention on Human Rights) require the issuing and enforcing of criminal provisions in the realm of severe attacks against life, physical integrity and freedom and serious human rights violations. Initially it is inquired about the prerequisites of constitutional supremacy and international human rights law primacy over national statutes, as well as examined the constitutional and international grounds of positive obligations in criminal justice, from the modern constitutional and international human rights law perspective, recognizing states' duties to respect and secure human rights. The Brazilian Supreme Court's and the Inter-American Court of Human Rights' case-law are scrutinized over the construction of a duty of putting in place criminal-law provisions to deter human rights violations as well as undertaking effective investigations and prosecuting those accountable. Furthermore, the doctrine's major challenges are critically analyzed. Eventually, several juridical consequences are proposed in addition to imposing and clarifying the limits of positive obligations in criminal justice under brazilian positive law.