Banca de QUALIFICAÇÃO: CAIO JOSÉ ARRUDA AMARANTE DE OLIVEIRA

Uma banca de QUALIFICAÇÃO de MESTRADO foi cadastrada pelo programa.
STUDENT : CAIO JOSÉ ARRUDA AMARANTE DE OLIVEIRA
DATE: 26/03/2024
TIME: 08:00
LOCAL: Ambiente virtual
TITLE:

THE (IN)CONVENTIONALITY OF PREVENTIVE PRISON IN BRAZIL FROM THE THEORY OF MULTILEVEL CONSTITUTIONALISM

KEY WORDS:

Multilevel Constitucionalism; Interjurisdictional dialogue; Pretrial detention; Inter-American System for the Protection of Human Rights; Inter-American Court of Human Rights.

PAGES: 102
BIG AREA: Ciências Sociais Aplicadas
AREA: Direito
SUMMARY:

In the recent past, the conflict between domestic and international legal orders was resolved through the classical theories of Heinrich Triepel's dualism and Hans Kelsen's monism. These theories involved the subordination of one legal order to another. However, globalisation – whether economic, technological, informational, or legal – has blurred the distinction between what is national and what is international. This movement led to the creation of contemporary constitutional theories that reject the superior hierarchy of one order or another, aiming to harmonise local particularities with different "levels of constitutional normativity," exemplified by Multilevel Constitutionalism. In parallel, while article 312 of the Criminal Procedure Code (CPP) – strongly inspired by the Italian Criminal Procedure Code of 1930, the "Rocco Code" – introduces extraprocessual grounds for ordering pretrial detention – "guarantee of public order" and "guarantee of economic order" – the standards of the Inter-American System for the Protection of Human Rights (IASPHR) impose that preventive detention serve a procedural purpose and not be based on general preventive or special preventive goals attributable to punishment. In this clash of "levels of constitutional normativity," the mechanism of inter-jurisdictional dialogue could serve as a tool to achieve greater and better protection of the human rights of pretrial detainees. However, it remains to be seen whether there are dialogues between the Federal Supreme Court (STF) and the Inter-American Court of Human Rights (IACHR) regarding pretrial detention. Furthermore, in the event of such dialogues occurring, whether they adopt as a parameter what is most favourable to the human being, as determined by the theory of Multilevel Constitutionalism. To do so, it will be necessary to present the relationship between the IASPHR and the constitutional protection of fundamental rights; indicate the overcoming of classical theories of dualism and monism, with the emergence of Multilevel Constitutionalism in the Latin American territory; identify inter-American standards regarding pretrial detention, including the jurisprudence of the IACHR on the matter; discuss the authoritarian genealogy of pretrial detention in Brazil, with the likely resistance of the STF to engage in dialogue with the inter-American tribunal regarding the exceptional nature of precautionary deprivation of liberty; and, finally, highlight the (un)conventionality of the grounds for ordering pretrial detention present in Article 312 of the CPP. Henceforth, as a methodological approach to this research, the inductive method will be adopted, while historical and explanatory methods will be used as procedural methods. In addition, bibliographic and documentary techniques will be employed for research purposes (analysis of jurisprudence). Thus, due to the excessive number of prisoners awaiting final conviction, the study developed here aims to reveal, through Multilevel Constitutionalism and inter-jurisdictional dialogue, whether the STF is concerned with "conversing" with the IACHR about the conventionality of Brazilian pretrial detentions.

COMMITTEE MEMBERS:
Interna - 1259912 - RENATA OLIVEIRA ALMEIDA MENEZES
Presidente - 2527208 - THIAGO OLIVEIRA MOREIRA
Interno - 1149384 - WALTER NUNES DA SILVA JUNIOR