A incompatibilidade da Lei de anistia à luz da jurisprudência da corte interamericana de Direitos Humanos.

Abstract

The Law No. 6683, of May 8, 1979, entitled Amnesty Law, is intended to amnesty all those who, during the period of September 2, 1961 and August 15, 1979, committed political or related crimes, being instituted through an "agreement", as an instrument for a transitional justice from a period of Brazilian military regime, to a Democratic State based on the rule of law. The present study seeks to analyze the incompatibility of the Brazilian amnesty law with the jurisprudence of the Inter-American Court of Human Rights. The analysis of the subject has relevance both to domestic and international law, since it is necessary to harmonize and uniform, in order to ensure cooperation between the courts, in the search for a symmetrical international protectionist system guaranteeing fundamental rights and guarantees. For the development of this research, a qualitative exploratory and bibliographical approach was adopted. The Law of Amnesty in Brazil has a certain peculiarity, because in Brazil, it gave amnesty for all those who committed common crimes besides politicians ones, supported by the term "connected", that allowed the criminal connection between them. With the internationalization of human rights, an international protectionist system was created with the intention of guaranteeing them beyond the States. The Inter-American system of human rights, composed of the Inter-American Commission and Court of Human Rights, responsible for the international protection of these rights, judging the Gomes Lund case. Versus Brazil, decided for the invalidity of the auto amnesty and law of amnesties that hinder the criminal prosecution of agents that violated human rights, cases that occurred in Brazil. Based on this, the Order of Brazilian Lawyers registered an arguing for non-compliance with Fundamental Precept No. 153, towards the Federal Supreme Court, questioning the validity of the Amnesty Law, and requesting an interpretation in accordance with the 1988 Federal Constitution, and it was dismissed as unfounded. Finally, the research through every doctrinal and jurisprudential apparatus points out that the Brazilian amnesty law is incompatible with the jurisprudence of the Inter-American Court of Human Rights, and with the Federal Constitution itself, which was accentuated by the decision of the Federal Supreme Court dismissal of the arguing of non-nompliance with Fundamental Precept No. 153, causing the Brazilian State to stop harmonizing domestic law with international law, in order to cooperate for the protection of human rights.