Controle de convencionalidade no judiciário brasileiro

entre efetividade e simbolismo normativo

Abstract

ABSTRACT: The control of conventionality is part of the multilevel system for the protection of human rights, grounded in Article 5, §2, of the Brazilian Constitution, which allows for the incorporation of international treaties into the domestic legal order. This study examines its application within the Judiciary, particularly regarding the integration of Inter-American Human Rights System standards into judicial decisions. It seeks to delineate conventionality control in its proper sense, distinguishing it from the merely rhetorical use of international law as argumentative reinforcement. The central claim is that such control requires an effective comparison between domestic norms and human rights treaties, potentially leading to the setting aside or reinterpretation of national provisions. Mere reference to international sources, without this structured analysis, does not characterize the institute. The research adopts a qualitative approach, combining bibliographic review and documentary analysis, with emphasis on CNJ Recommendation No. 123/2022, the National Pact for Human Rights within the Judiciary, and a selected leading case. The study proposes theoretical and legal criteria for identifying conventionality control, demonstrating that its characterization depends on the role played by international treaties and jurisprudence in the ratio decidendi. It concludes that this conceptual distinction is essential for improving judicial practice.