Conventionality control is the instrument that ensures the compatibility of Brazilian laws with international human rights treaties ratified by the country. Its application has become increasingly relevant to ensure that Brazil's international commitments are effectively respected domestically.

What is conventionality control?

Conventionality control is the mechanism by which it is verified whether a domestic norm conforms to international human rights treaties ratified by Brazil.

Its main function is to ensure that the Brazilian legal system respects internationally assumed commitments, especially those contained in the American Convention on Human Rights (Pact of San José, Costa Rica).

Historical milestone and evolution in Brazil

Conventionality control in Brazil emerged as a response to the need to harmonize the domestic legal system with international human rights treaties ratified by the country.

Initial doctrinal debates

Initially, Brazilian legal doctrine debated the hierarchy of international human rights treaties, questioning whether they had constitutional, supralegal, or infralegal status. This discussion gained momentum with the promulgation of the 1988 Federal Constitution, which expanded fundamental rights and incorporated the provision for international treaties into the legal system.

The role of the Supreme Federal Court (STF) and the Superior Court of Justice (STJ) in consolidating the control of conventionality.

The Brazilian Supreme Court (STF) and the Superior Court of Justice (STJ) played fundamental roles in consolidating the control of conventionality. The STF, by recognizing the supralegality of human rights treaties, established the need for domestic laws to conform to these treaties. 

The Superior Court of Justice (STJ), in turn, has applied the principle of conventionality control in its decisions, reinforcing the importance of the compatibility of domestic norms with international human rights treaties.

Integration of the conventionality block into the national legal system

The integration of the conventionality bloc into the Brazilian legal system implies that international human rights treaties ratified by Brazil, along with the jurisprudence of the Inter-American Court of Human Rights, must be considered in the process of interpreting and applying domestic laws. This reinforces the country's commitment to the protection of human rights and the need for all domestic laws to conform to ratified international treaties.

Difference between conventionality control and constitutionality control.

Although they share similarities in their application, the two institutions have... distinct purposes:

• O constitutionality control verifies the compatibility of sub-constitutional norms with the federal Constitution, ensuring the supremacy of the internal constitutional order.
  
• O conventionality control, on the other hand, analyzes whether the norms of the legal system respect the international human rights treaties ratified by Brazil, especially those with supralegal status.

Both mechanisms can coexist and are fundamental to ensuring the effective protection of fundamental rights, both from the perspective of domestic law and international human rights law.

Types and forms of application of conventionality control.

Conventionality control can be exercised in a diffuse or concentrated manner, depending on the body or instance responsible for analyzing the norm in relation to international human rights treaties.

Diffuse control and concentrated control of conventionality

In the diffuse model, any judge or court can, in a specific case, disregard the application of a rule that is incompatible with international treaties. In the concentrated control model, however, it is up to the Supreme Federal Court or the Courts of Justice, through specific actions, to declare the incompatibility of the rule.

Legitimacy to exercise control

The authority to exercise control over conventionality is not restricted to higher courts. Judges of first instance, members of the Public Prosecutor's Office, and public administration bodies must also apply this control when interpreting and applying the law.

Application by first instance judges

First-instance judges exercise control over the constitutionality of laws when judging specific cases, and may disregard sub-constitutional norms that violate international human rights treaties, even without a formal declaration of unconstitutionality.

International foundations of conventionality control

The conventionality control process originates from the Inter-American system for the protection of human rights.

The American Convention on Human Rights, ratified by Brazil in 1992, is the main norm used in this control.

Furthermore, the decisions of the Inter-American Court of Human Rights (IACHR) , especially since the case “Almonacid Arellano vs. Chile” (2006), establish that every national judge must apply the conventionality control ex officio , even without provocation from the parties.

Historical milestone and evolution in Brazil

Initial doctrinal debates

Initially, Brazilian legal doctrine debated the hierarchy of international human rights treaties, questioning whether they had constitutional, supralegal, or infralegal status. This discussion gained momentum with the promulgation of the 1988 Federal Constitution, which expanded fundamental rights and incorporated the provision for international treaties into the legal system.

Paradigmatic case: ADC 19 and RE 466.343

Two rulings by the Brazilian Supreme Court (STF) were decisive in consolidating the control of conventionality in Brazil:

• ADDC 19reaffirmed the compatibility of the American Convention on Human Rights with the Federal Constitution, dismissing claims of conflict between the two laws.
  
• RE 466.343, judged under the general repercussion regime: recognized international human rights treaties have supralegal status. ratified by Brazil that They did not follow the procedure outlined in Article 5, §3, of the Constitution..

These decisions reinforce the incorporation of the conventionality bloc into the national legal system, requiring that all norms respect the international commitments undertaken by the country.

Integration of the conventionality block into the national legal system

The integration of the conventionality bloc into the Brazilian legal system implies that international human rights treaties ratified by Brazil, along with the jurisprudence of the Inter-American Court of Human Rights, must be considered in the process of interpreting and applying domestic laws. This reinforces the country's commitment to the protection of human rights and the need for all domestic laws to conform to ratified international treaties.

Practical effects in Brazilian Law

The control of conventionality has concrete effects on the application of law, allowing for the exemption of domestic norms that contradict international human rights treaties.

Implicit repeal of incompatible rules

The main effect of this control is the non-application (or exclusion) of sub-legal norms that contradict international human rights treaties. This guarantees the prevalence of fundamental rights, even in the face of conflicting domestic laws.

Strength of the decisions of the Inter-American Court

The decisions of the Inter-American Court of Human Rights are binding on the States condemned , with regard to the specific case.

Furthermore, they have normative and persuasive value for other bodies within the Judiciary and Public Administration, influencing the standardization of jurisprudence.

They also serve as an interpretative parameter for domestic law , guiding the application of norms in light of the commitments undertaken internationally by Brazil.

Areas impacted by the control

The application of the conventionality control principle has brought about significant transformations in multiple branches of Brazilian law.

• Criminal procedureStrengthening guarantees of individual freedom. presumption of innocencereview of preventive detention and valuing the right to dissenting opinions.
  
• Civil law: recognition of new family forms, such as same-sex unions, advances in adoption and protection to name and gender identity as expressions of human dignity.
  
• Administrative and social security law: consolidation of access to justice and guarantee of due process of law in administrative proceedings and in the granting of social benefits.

The closing thought

Conventionality control strengthens the protection of human rights in Brazil and expands the role of international treaties in the interpretation and application of domestic laws.

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References

BRAZIL. Constitution (1988). Constitution of the Federative Republic of Brazil. Brasília, DF: Federal Senate, 1988. Available at: https://www.planalto.gov.br/ccivil_03/constituicao/constituicao.htm.

MAZZUOLI, Valerio de Oliveira. Judicial review of the constitutionality of laws. 5th ed. Rio de Janeiro: Forense, 2018. E-book. (1 online resource). ISBN 9788530982195. Available at: https://integrada.minhabiblioteca.com.br/books/9788530982195.
MENDES, Gilmar Ferreira; BRANCO, Paulo Gustavo Gonet. Constitutional law course. 19th ed. São Paulo: Saraiva Jur, 2024. E-book. (1 online resource). (IDP). ISBN 9786553629417. Available at: https://integrada.minhabiblioteca.com.br/books/9786553629417.