40 YEARS OF BRAZILIAN AMNESTY LAW: ANALYSIS OF ADPF 153 AND CASES “GUERRILHA DO ARAGUAIA” AND VLADIMIR HERZOG, UNDER THE PERSPECTIVE OF TRANSCONSTITUCIONALISM AND THE THEORY OF DOUBLE CONTROL OF HUMAN RIGHTS

Abstract

This article analyzes the apparent conflict established between the Supreme Federal Court’s decision in the judgement of Allegation of Disobedience of Fundamental Precept (ADPF) no. 153 and the Inter-American Court of Human Rights’ position in the cases “Guerrilha do Araguaia†and Vladimir Herzog and others vs. Brazil. Therefore, it addresses the recognition of the Court of San José’s jurisdiction by Brazil, the concept of transitional justice, the grounds of the ruling in ADPF no. 153 in contrast to inter-American jurisprudence and the search for a solution based on transconstitutionalism and on the theory of double control of human rights. The research uses the deductive approach, through bibliographic and jurisprudential review. In the end, it concludes that, given the need for intersection between court decisions and the distinction of constitutionality and conventionality controls, the Brazilian Amnesty Law has no legal effects and cannot be invoked to exempt the liability of repression agents of the military dictatorship.