A (in)eficácia do direito ao recurso no Brasil a partir da convenção americana sobre direitos humanos

Abstract

This dissertation seeks to examine the effectiveness of the right to appeal considering the Brazilian criminal justice system from the perspective of the Inter-American Court of Human Rights (IACtHR). In fact, it analyzes criminal procedures in Brazil from the perspective of the jurisprudence developed by the IACtHR, aiming to evaluate whether appellate convictions, particularly those resulting from prosecutorial challenges, comply with international human rights standards when they prevent a full evidentiary review by the defense. The study is grounded in the broader need to harmonize Brazil s criminal procedural framework with the fundamental rights and guarantees enshrined in the Brazilian Constitution and in binding international human rights means. By reassessing the structure and functioning of the 1941 Code of Criminal Procedure, the dissertation highlights deficiencies that compromise due process and the rights of the accused. The research main problem concerns whether the right to appeal remains effective under Brazilian law in cases where convictions are rendered only at the appellate level. This way, acquited by judges but convicted by courts the person remains without allowing for comprehensive evidentiary reconsideration by the defense after such a reversement of his/her innocence. Three hypotheses are explored. The first one assumes that there is a violation of the right to appeal due to the lack of full review; the second is based on no violation occurs if the appellate process includes sufficient legal or evidentiary scrutiny; and the third means that no violation is present under a comparative lens that incorporates standards drawn from Protocol No. 7 of the European Convention on Human Rights. This work is grounded in a human rights-based approach, combining doctrinal analysis, case law review from the IACtHR, and comparative legal study of international standards confronted with the Brazilian criminal procedure.