The derogation of the Amnesty Law in the Brazilian case

A dilemma between non-applicabilty of statutory limitations and the prohibition of non-retroactivity. An analysis from the pro homine clause and the postulate of practical reason

Abstract

This work, doubly structured on the arguments of political and juridical philosophy and on constitutional, criminal and human rights doctrines, tries to confront, from the very principles and foundations of Jurisprudence, the controversy over the (im)possibility of derogation from the Law of Amnesty of 1979, as a result of the ruling handed down by the Inter-American Court of Human Rights in the Gomes Lund Case, and which is proportionally contrary to the decision of the Federal Supreme Court in ADPF 153. For that, grounding the central arguments on the autonomy of the law and practical reason, we sought to overcome the antinomy between the two decisions from the pro homine clause. Thus, after exposing these initial foundations, the problem of the origin of the Amnesty Law, located in the context identified as transitional constitutionalism, was faced. In the next section, the main factual, legal and judicial points of the controversy were presented, in particular a summary of the judicial decisions that are the object of the study. In the last two topics, shortly after presenting the main foundations for the solution of real antinomies - the duty of coherence and the postulate of practical reason - we tried to clarify the origin of the arguments in favor of the derogation, as well as the legal principles that would prevent such fact. In the end, the legal impossibility of such a measure is concluded, based on the principles of strict legality in Criminal Law and non-retroactivity.