Ditadura e transição programática: a tutela multinível e a judicialização dos crimes da ditadura.

Abstract

Programmatic Transitional Justice means, as constitutional substance, transitional rights that are part of the bundle of fundamental rights expressed in international commitments which Brazil is a part. Its enforcement is directly associated with the democratic and institutional deepening of human rights in the legal dogmatics of the country and Latin America. In Brazilian case, several social actors and bodies are fundamental to understand the transitional process, but, after the National Truth Commission and the Truth Commissions in the states finish mandates, the Transitional Justice Working Group of the Federal Prosecuter stands out. (GTJT) in the role of Transitional Justice in Brazil. The GTJT, through more than 50 actions, managed to obtain favorable decisions before Federal Courts and in the STJ, using as legal arguments the guarantee of compliance with treaties and conventions regarding the accountability of former agents of the military dictatorship, in line with the doctrine of multilevel protection, according to René Urueña. Regarding the literature analyzed, on studies that classify transitional processes, I observe four pillars: repair; the right to memory of the truth; the reform of institutions and finally the judicialization and accountability of former agents of the military dictatorship. This last pillar, in Brazil, singularly, it was not implemented. It is for the reason that the objective of the thesis seeks to identify new theoretical and doctrinal perspectives for the accountability of crimes against humanity, found in unprecedented decisions in national courts that form the corpus of this study. The research has as time lapse of judicial decisions of the Federal Justice and in the Courts of second and third instance of the Federal Justice from 2014 to 2021, which held the agents responsible in the criminal and civil sphere, for civil and collective damages. The methodology used for the analysis of the corpus of the thesis involved the recording of the decisions identified through the Case Brief method, which consisted of disaggregating markers and descriptive data and grouped by predefined criteria. These markers structure the object of the research's legal content analysis. Confronting the conceptual markers, we conclude that there was a reception of transitional rights in the constitutional order, expanding the rights and guarantees agreed in the 1988 Constitution, by human rights treaties that Brazil ratified, as well as by the jurisdiction of the Inter-American Court of Human Rights.