10
a guest for the above mentioned ceremony in Strasbourg, - the two international
courts of human rights have made remarkable progress in the realization of
international justice, of the right perspective, to wit, that of the justifiable.27 Both
courts have decisively contributed to the human being emancipation vis-à-vis his
own State, to the settlement of a new paradigm in the present scope of international
protection, and to the humanization of International Law.28
28.
In a lapidary paragraph of this Judgment, regarding to the satisfaction
measures for those victimized and the guarantees of non-repetition of libelous acts
(as non-pecuniary reparation measures), the Court states:
"the State must guarantee that within a reasonable time the internal process
tending to inquire and sanction those responsible for the facts herein yields the
corresponding effects, thus giving direct applicability of the protection rules and
regulations of the American Convention in domestic law" (paragraph 244).
29.
In the above mentioned public hearing of this case, of November 30 and
December 1 before this Court, as a reply to one of the questions I posed with regard
to the present general perspectives on the matter, one of the witnesses expressed
that “the fairest constitutionalists are extremely pessimistic regarding the outcome of
what may take place considering the degree of petrification of the Brazilian judicial
power."29 My question born in mind the new paragraph 3 of Article 5 of the Brazilian
Federal Constitution.30 My purpose here is not to analyze that Article (it does not
even deserve such an analysis), but to refer to it from the American Convention
point of view, as applicable law in the cas d'espèce.
30.
This new provision seeks to grant, in an inexperienced way, constitutional
status, in the scope of the Brazilian domestic law, only to human rights treaties that
are approved by a 3/5 majority of the members of both the House of
Representatives and the Senate (thus becoming equivalent to constitutional
amendments). Badly conceived, badly drafted and badly formulated, it represents a
regrettable backward step regarding to the open model consecrated by paragraph 2
of Article 5 of the Federal Constitution of 1988, which was the result of a proposal of
my authorship to the National Constitutional Assembly, as historically documented. 31
.
A.A. Cançado Trindade, "Le développement du Droit international des droits de l'homme à travers
l'activité et la jurisprudence des Cours européenne et interaméricaine des droits de l'homme", 16 Revue
universelle des droits de l'homme (2004) n. 5-8, pp. 177-180; A.A. Cançado Trindade, "The Development
of International Human Rights Law by the Operation and the Case-Law of the European and InterAmerican Courts of Human Rights", 25 Human Rights Law Journal (2004) n. 5-8, pp. 157-160. And, for a
broader study, cf. A.A. Cançado Trindade, "Approximations and Convergences in the Case-Law of the
European and Inter-American Courts of Human Rights", in Le rayonnement international de la
jurisprudence de la Cour européenne des droits de l'homme (eds. G. Cohen-Jonathan e J.-F. Flauss),
Bruxelles, Nemesis/Bruylant, 2005, pp. 101-138.
27
.
A.A. Cançado Trindade, A Humanização do Direito Internacional, Belo Horizonte, Edit. Del Rey,
2006, pp. 3-409.
28
.
Inter-American Court of Human Rights, Transcript of Public Hearing..., op. cit. supra n. (3), p. 98
(statement of Mr. João Alfredo Teles Melo).
29
30
.
According to constitutional amendment No. 45, of December 08, 2004.
.
For a circumstantial background of paragraph 2 of Article 5 of the Brazilian Federal Constitution,
with the references corresponding to documentary sources, cf. A.A. Cançado Trindade, Tratado de Direito
Internacional dos Direitos Humanos, vol. III, Porto Alegre, S.A. Fabris Ed., 2003, pp. 597-643; A.A.
Cançado Trindade, A Proteção Internacional dos Direitos Humanos e o Brasil (1948-1997): As Primeiras
31