A utilização do dever de proteção pela corte interamericana de direitos humanos nos casos de graves violações praticadas por regimes ditatoriais : análise evolutiva das medidas de reparação de suas sentenças.

Abstract

The Inter-American Court of Human Right acting find itself in an expansion process, since it’s initial doctrine worked only by the individual amends logic and now it is adopting structural and preventive measures. Since this transformation the countries into the Inter-American Court jurisdiction start to have to fulfill obligations that sometimes affects state soberany notions, like legislative alterations, thus a study about the Court doctrine, it’s fundaments and it’s legitimacy gains relevance. At this point the main question that lead this research is born: how and in which way this evolution is being developed and if it is possible, in it’s fundaments, to verify the use of state protective duties notions, even if the theory is not mentioned directly. Thus, by the use of the deductive method and also the bibliographical and jurisprudential research, it is aimed, in a first moment, to contextualize the international scenario of human rights protection in which the Inter-American Court finds itself inserted, the general notions about it’s own structure, the main international principles that guide it’s activity and also the legitimacy of it’s decisions. Being those preliminary and grounding notions pointed out about the object of this research, the second part focus in the exposition of the “discovery” of the objective dimensiono of the human rights by the Lüth case judgment, in Germany (1958) and the irradiation eficacy, that commands the State to act in a way to ensure an suitable level of protection toward those rights, being the state protective duties theory a result from this elaboration. By the comprehension of the theory, the final moment of this study seeks to realize an analysis of the Inter-American Court cases practiced by military regimes and whose reason for the violation are those of politic-ideological divergences. By the use of this filter, it is intended to realize an observation of the Court jurisprudence, aiming to verify the elements in which the already mentioned evolution is based and the origins of it’s fundaments – since these are not present nor mentioned in the article 63.1 of the Inter-American Convention that regulates the reparation measures – and if the state protective notions are used in the fundaments of this ampliation regarding it’s level of reach and afection. The final conclusion is that the Inter-American Court jurisprudence has expansionist tendencies, even though it’s doctrine is consolidated, seeking elements in the international and domestic law to build it’s understandings. The use of state protetive duties is also verified in an implicit way, especially by the analysis of the structural sentences, which seek to supply structural insuficiencies, strenghtening the level of human and fundamental rights protection and realization. By the end, it is important to mention that this research find itself inserted in the Contemporany Constitutionalism line of the UNISC post-graduation program, that explores the constitucional phenomenom and the juridic consolidation of it’s guarantees, being also this the line that the advisor develop it’s researchs, and also inside the scope of the Latin-American Observatory of Constitutional Jurisdiction.