A delimitação da competência na federação brasileira: uma análise do deslocamento de competência para o julgamento dos crimes contra os Direitos Humanos no Brasil.

Abstract

This research brings to light an issue that is extremely important to the homeland right: the delimitation of powers in the Brazilian federation, from the perspective of incident of competence displacement, innovation brought by EC No 45/2004 in § 5 of the art. 109, the CF/88, which aims to ensure greater effectiveness of international human rights treaties to which Brazil is a signatory. Thus, important historical landmarks were presented that have influenced the creation of this institute the Constituent Power Derivative such as the development of the international normative system aimed at the protection of human rights and the importance that these protective standards acquired along the consolidation process of Democratic Rule of Law State. However, because it is a procedural instrument that causes the change of jurisdiction of the State Courts, when that competence to show ineffective processing or crimes trials against human rights, to the Federal Court, however, this innovation has not been approved in peaceful way, with a view, the emergence of minority positions claiming the unconstitutionality for violating the Federal Principle and the Due Process Principle, among others. However, during the development of this study it was found that this argument is unfounded, since own legal system adopts the method of weighting of interests based in Principle of Proportionality and Reasonableness to be able to solve possible conflicts between the fundamental precepts, but to verify the purpose of each principle presented, it concludes that does not exist collision between them and the competence shift incident, adds to those arguments that are conspicuous by its constitutionality to the STJ’s decisions that were accepted since the process of federalization in cases of IDC n°. 2 - DF and IDC No. 5 – PE. It was verified also the adequacy of this mechanism with the new form of organization of the Federal State which is based in the cooperation between political entities. Therefore, there is the existence of compatibility with the standards expressed in the Federal Constitution of 1988, once it brings the dignity of the human person as one of the foundations of the Federative Republic of Brazil, and the same in their international relations is governed by the Principle of Prevalence of Human Rights. For the structuring of this research were used deductive, historical and evolutionary methods; the research technique used was the bibliographic, by reading books, scientific articles, dissertations, government websites as well as the national and international legislation in force on the subject.