Análise sobre a aplicabilidade da lei de anistia consoante entendimento do Supremo Tribunal Federal e da Corte Interamericana de Direitos Humanos

Abstract

This paper analyses the decisions by the Supreme Court and the Inter-American Court of Human Rights regarding the validity of the amnesty provided for in Law no. 6.683/79, which extinguished the punishment of the conduct of those who officially committed political and related crimes between September 2nd of September 1961 and August 15, 1979. The wording of the norm generates doctrinal and jurisprudential discussion about its scope, as it was not clear whether an amnesty granted to political or related crimes extended to common crimes committed by representatives of the Public Power during the military regime. There is a divergence of understanding of the competence of the law with the existing norms in the Federal Constitution of 1988 and in the Pact of San José of Costa Rica, incorporated into the Brazilian legal system by Decree no. 678, of November 6, 1992. The Federal Supreme Court, to the to analyse the merits of the Allegation of Non-compliance with Precept Number 156, in April 2010, due to the constitutionality of Law 6.683/79. This is not a final decision, since, in view of the decision, motions for clarification were filed with a request for amending effects and an appeal is pending consideration by the Supreme Court. In addition, the complaint of noncompliance with a fundamental precept no. 320 was attached to the original action, which defends the unconstitutionality of the normative act of amnesty and new legal arguments to the evolution of knowledge that prevailed in the judgment carried out before by the Supreme Court. The Inter-American Court of Human Rights, on the other hand, in November 2010, when analysing the case of Gomes Lund et al. v. Brazil, considered the incompatibility of the amnesty provided for in Law 6.683/79 with the American Convention on Human Rights, on the occasion of which highlighted the existence of other judgments of the regional court in the same direction. The decision of the regional court is final, due to the lack of appeal by the interested parties. Thus, this previous study is justified on the existence of diametrically opposed decisions rendered by high-level jurisdictions in a current period of time, considering the legal uncertainty arising from the divergence of understanding on the validity of the amnesty provided for by Law 6.683/79. The divergence is of practical importance, considering the potential filing of criminal actions in which criminal infractions are investigated in the cases of legally foreseen amnesty. Thus, the work analyses, in the first two chapters, respectively, the grounds given by the Supreme Court and the Inter-American Court of Human Rights in their respective judgments. In the third chapter, comments are made on the decisions of the courts and possible solutions to the conflict of jurisdiction. This research uses a hypothetical-deductive method and is developed through bibliographic and documentary analysis of physical and virtual media, as well as websites of official bodies, entities and institutes operating in the area to obtain concrete and current data relevant to scientific work. In the end, it is concluded that there is a need for harmonization between judgments in the domestic and international spheres, especially those related to the application of human rights, avoiding divergent interpretations by the Courts, and leading to a coherent and effective response for people victimized by rights violations human rights, especially when it results directly from the direct action of representatives of the State.