Description
This book offers a critical view of the punitive bias in the case law of the Inter-American Court of Human Rights, demonstrating the delicate relationship between Criminal Law and Human Rights. Based on cases involving the performance of the Inter-American Court of Human Rights in situations in which States failed to punish perpetrators of crimes - and, consequently, victims were considered unprotected by domestic law -, judicial constructions are presented that punish such conduct by States, regardless of principles and values of individual guarantee aimed at protecting citizens against the punitive power of the State.Throughout the book, the characteristics of the Inter-American System of Human Rights and how cases submitted to it are handled are analyzed. It presents the relationship between criminal matters and the protection of Human Rights in International Law, highlighting their points of intersection. Then, based on the analysis of selected cases (many of which occurred during Latin American dictatorships), the main theses developed to justify the use of criminal law as the main (and sometimes the only one) way for the State to act in favor of the protection of human rights are highlighted.From there, criticisms are made of this jurisprudence, highlighting in particular: the problematic conception that Criminal Law is a suitable means of satisfying the desire for justice of victims and their families; the mistaken view that criminal proceedings are the best means of knowing the truth of the facts; the fight against impunity as the sole purpose of criminal proceedings; the disregard for the guarantee of the principle of criminal legality, whether by the malleability of what is considered a crime, or by the "revocation" of causes that extinguish criminal liability, such as amnesty and prescription; the flexibilization of extradition treaties; the excessive interference in criminalization orders directed at States. Based on these findings and supported by international doctrine, the aim is to demonstrate the approximation of the law produced by the Inter-American Court of Human Rights with the doctrine of the criminal law of the enemy, which contrasts with the basic guarantees inherent in Criminal Law.Finally, the influence of the jurisprudence of the Inter-American Court of Human Rights is presented both in international courts, such as the European Court of Human Rights and the International Criminal Court, and in Brazilian national courts. It thus points out its potential for expansion and interference in the way in which the relationship between Criminal Law and Human Rights is understood.This book is intended for all those who seek to deepen their knowledge of the complex relationship between Criminal Law and Human Rights, and especially to learn about the main theses developed by the Inter-American Court of Human Rights on this subject.
1. Introduction.- 2. The Inter-American system of human rights protection.- 3. The criminal jurisprudence of the Inter-American Court of Human Rights.- 4. The formation of the punitive jurisprudence of the Inter-American Court of Human Rights: main theses.- 5. Critical analysis of the theses constructed by the Inter-American Court of Human Rights.- 6. Critical analysis of the punitive culture developed by the Inter-American Court of Human Rights.- 7. The jurisprudence of the Inter-American Court of Human Rights and the "dialogue between courts".- 8. Conclusions.
Mariângela Gama Magalhães Gomes is graduate, Master, Doctor, and Associate Professor in Criminal Law from the Faculty of Law of the University of São Paulo (USP). Associate Professor of Criminal Law at USP. Visiting Professor at the University of Florence. Visiting Researcher at the University of Coimbra. Former Brazilian Institute of Criminal Sciences (IBCCRIM) President, in 2013/2014. Vice-President of the International Association of Criminal Law in Brazil (AIDP-Brazil). Author of the books: "O princípio da proporcionalidade no direito penal" (RT, 2003), "Direito penal e interpretação jurisprudencial: do princípio da legalidade às súmulas vinculantes" (Atlas, 2008), "Teoria Geral da Parte Especial do Direito Penal" (Atlas, 2014) e "Direito Penal e Direitos Humanos: Análise crítica da jurisprudência da Corte Interamericana de Direitos Humanos" (D'Plácido, 2018). Organizer of the books: "Estudos sobre direito penal e direitos humanos" (D'Plácido, 2021), "Estudos sobre Direito Penal e Direitos Humanos, vol. 2" (D'Plácido, 2022), "Execução Penal e Direitos Humanos: Estudos no contexto da Opinião Consultiva OC-29-22 da Corte Interamericana de Direitos Humanos" (D'Plácido, 2023), "Reflexões sobre as ciências criminais nos 35 anos da Constituição Federal" (D'Plácido, 2023).
