A hierarquia dos tratados internacionais de direitos humanos: uma análise a partir da emenda constitucional 45/2004

Abstract

The present study analyzes the hierarchy of human rights international treaties ratified by Brazil, considering the change in the Constitution occurred with amendment no. 45 of December 2004. The reform introduced a § 3rd to Article 5th, expressly admitting that human rights treaties have VWDWXV of constitutional norms. The justification of the study carried out is the existence, since the Constitution enactment in 1988, of a doctrine that DOUHDG\ FRQVLGHUHG that human rights international treaties have constitutional VWDWXV, at the same time at which the STF (Federal Supreme Court) caselaw reserves to such norms a hierarchy of ordinary federal law. With the new constitutional text, there are analyzed which impacts arise in doctrine and in the STF caselaw, the latter represented by RE 466.343/SP relevant judgment, although not completely ended upon the present study presentation. The conclusion, fundamented by the human rights prevalence, is that all human rights treaties ratified by Brazil have status of materially constitution norm, ensuring material and formally constitutional hierarchy to future treaties approved pursuant to Article 5th, § 3rd, of the Constitution