The Administrative Disciplinary Proceedings in the Inter-American Human Rights System: An Analysis of the Conventionality of Binding Precedent No. 5 of the Brazilian Federal Supreme Court

Abstract

This article investigates the conventionality of Binding Precedent No. 5 of the Brazilian Federal Supreme Court, which establishes that technical defense by counsel is not required in administrative disciplinary proceedings, in light of the standards of the Inter-American Human Rights System. The methodology adopted consists of bibliographic and documentary research, with an analysis of the case law of the Inter-American Court of Human Rights, according to which the judicial guarantees set forth in Article 8 of the American Convention on Human Rights are applicable to proceedings of a sanctioning nature, insofar as they constitute an expression of the State’s ius puniendi. The results indicate that the accused’s right to self-defense is guaranteed by Article 8(2)(d) of the American Convention on Human Rights, so that the Binding Precedent is not, a priori, unconventional. However, unconventionality arises in the case of an inert accused, a situation in which the State’s failure to provide a defense counsel violates the non-waivable right to legal assistance provided for in Article 8(2)(e) of the same instrument. The article therefore concludes that the statement is conditionally unconventional and is compatible with the Inter-American Human Rights System only when, in the face of the public servant’s inertia, the State acts to ensure his or her technical defense.