The Application of the American Convention on Human Rights by Brazil’s Federal Regional Courts (2009-2021): An Empirical Analysis

Abstract

The study addresses the following research problem: how has the American Convention on Human Rights (ACHR) been applied (or set aside) by Brazil’s Federal Regional Courts (TRFs) of the 1st through 5th Regions (03 Dec. 2008–31 Dec. 2021), and to what extent does such application incorporate (or fail to incorporate) conventionality control and the case law of the Inter-American Court of Human Rights (IACtHR)? The research employs an empirical, jurisprudential methodology (quantitative approach, with an analytical cut), based on a survey of appellate decisions retrieved from the TRFs’ official websites through searches conducted exclusively in the headnotes (ementas) using ACHR-related terms. In the period 2009–2021, out of 5,783,642 appellate decisions published, only 328 (0.005%) mention the ACHR in the headnote. The distribution of these 328 rulings by legal field is concentrated in Criminal Law (30.79%), Criminal Procedure (27.44%), and Civil Law (16.16%), totaling 60.36% within the criminal axis (also including Criminal Enforcement). Social Security and Tax Law – fields that account for the largest caseload in the Federal Judiciary – appear in only 1.22% (4 rulings). The main inferences are: (a) the concentration of ACHR use in criminal matters; (b) the low applicability of the ACHR in the legal fields that constitute the bulk of the Federal Judiciary’s docket; (c) the ancillary character of ACHR reliance in judicial reasoning and its reduced role as an autonomous rights-protecting norm; (d) the predominantly ancillary use of the ACHR in judicial reasoning stems, in part, from a perceived substantive overlap between the ACHR’s protective provisions and those enshrined in the Federal Constitution; (e) conventionality control of domestic norms is predominantly tied to positions previously settled by higher courts, such as the Brazilian Supreme Federal Court (STF) and the Superior Court of Justice (STJ); and (f) the Federal Judiciary’s practical disregard of the Inter-American System’s competent interpretive bodies for construing the ACHR.