O CONTROLE DIFUSO DE CONVENCIONALIDADE PELA ADMINISTRAÇÃO PÚBLICA

Abstract

In the current context of global governance and multilevel protection of human rights, the Brazilian Public Administration has a duty to reorganize itself in order to meet the standards for the protection of human rights established on the regional level, in view of Brazil's decision to ratify the American Convention on Human Rights and to recognize the jurisdiction of the Inter-American Court of Human Rights. Despite this, when it comes to the application of international treaties and precedents in the field of human rights, there is still a great protagonism for the Judiciary and a refractory position of public agents on the subject, which often culminates in losses to the citizens and even the international responsibility of the State. Based on this observation and considering the current jurisprudence of the Inter-American Court, which has granted to all public agents the duty to promote the conformity of domestic legal rules with conventional law, this paper aims to analyze the possibility of the Brazilian Public Administration of using the diffuse conventionality control technique for the purpose of incorporating inter-American standards for the protection of human rights. To this end, it seeks to present the legal and political premises that led to an approach between administrative activity and the protection of fundamental human rights in the last decades, to verify how the relations between the domestic legal system and international human rights law are currently configured, to identify the emergence of the conventionality control in the precedents of the Inter-American Court and, finally, to reflect on the possibility of that control being undertaken in the administrative field, through an approach of its principles, guidelines, possible criticisms and standards. The research adopts the deductive method, is developed in a descriptive and exploratory way and has a bibliographic, documentary and qualitative nature. In the end, it concludes that the conventionality control is a duty of all public agents, which is based on the unitary nature of the State's international responsibility and on the reformulation of the principle of legality. It must be exercised for the purpose of ensuring the protection of fundamental human rights in accordance with the inter-American corpus juris, based on the material pro persona principle, in its constructive and repressive modalities, having as a paradigm the “block of conventionality” and reaching all domestic rules, observing the particularities of the administrative organization and the standards produced by the Inter-American Court that impact administrative activity.