Tratados internacionais sobre direitos humanos em face da constituição federal brasileira: uma perspectiva interpretativa após a emenda constitucional n. 45/2004

Abstract

The fact that the rights and guarantees assured in international treaties are not excluded by the §2°, article 5 of the Federal Constitution does not avoid the conclusion that the rule that emerges from international treaties on human rights approved by the National Congress according to the singular form of article 49, I -as well as what happened with those approved before the Constitutional Amendment n. 45/2004 necessarily has infraconstitutional hierarchy. The article 5, $ 3° of the Federal Constitution, added by the mentioned amendment, establishes specific fomalities and qualified quorum only for the international treaties and conventions that have constitutional hierarchy, not being inconsistent with the requirement of simpler formalities for the approval of treaties without constitutional rule character, even allowing the infraconstitutional legislator to adopt a doubled procedure in order that an international treaty on human rights becomes able to be a simple voting approval object and, at the same time, acquires constitutional amendment hierarchy, as well as to submit the treaties approved previously to a referendum exclusively for acquisition of constitutional amendment equivalence