O consentimento da vítima no tráfico de pessoas: reflexões sobre a convencionalidade do art. 149-A à luz do Protocolo de Palermo

Abstract

This study aimed to examine the extent to which Brazilian courts take into account the guidelines contained in the 2000 Additional Protocol to the United Nations Convention against Transnational Organized Crime and to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (Palermo Protocol), regarding the interpretation given to the institution of victim consent. This issue is not explicitly regulated by Article 149-A of the Brazilian Penal Code, introduced on October 6, 2016 by Law No. 13,344, which is why it is necessary for legal practitioners to carry out the so-called conventionality control. The hypothesis was that Brazilian courts have significant challenges in applying this interpretative approach, which increases the risk for the Brazilian State of being held internationally accountable for failing to fulfill its obligations under international law. To assess this proposition, a case study analyzed 10 appellate decisions from the Federal Judiciary between 2017 and 2024.. This work adopted the deductive method by first abstractly analyzing the issue of consent and how conventionality control should theoretically be carried out in the specific case of consent in human trafficking, and subsequently applying such recognitions to the selected court rulings. The research revealed that Brazil did not meet the minimum requirements of the commitment assumed with the ratification of the treaty when enacting domestic criminal law, which results in judicial decisions that are at odds with the purposes of the Palermo Protocol and expose the Brazilian State to international liability.