Critical study of the international jurisprudence on human rights and its impacts on criminal law

• Grant number: 17/23808-4
• Support Opportunities: Scholarships abroad - Research
• Effective date (Start): February 01, 2018
• Effective date (End): May 31, 2018
• Field of knowledge: Applied Social Sciences - Law
• Principal Investigator: Mariângela Gama de Magalhães Gomes
• Grantee: Mariângela Gama de Magalhães Gomes
• Host Investigator: Anabela Maria Pinto de Miranda Rodrigues
• Host Institution: Faculdade de Direito (FD). Universidade de São Paulo (USP). São Paulo , SP, Brazil
• Research place: Universidade de Coimbra (UC), Portugal

Abstract

There are, essentially, two forms of relationship between criminal law and human rights. On the one hand, human rights can play a critical role in criminal law, imposing a reduction in the power of the State, so that it is not oppressive to individuals; on the other hand, may represent a promotional function, requiring its protection as a way to guarantee its effectiveness.This double relationship between criminal law and human rights can be found, also, in the jurisprudence of the courts incharged of the protection of human rights, highlighting here the European and Inter-American Courts of Human Rights.Thus, it is important to analyze the decisions of such courts to better understand their influence in criminal law.In addition to the direct impact that universal values, such as freedom and human dignity, necessarily have on the configuration of the State's right to punish, it can not be disregarded that in several States, human rights treaties have a high value in the sources of law. Impacting in relevant constitutional guarantees conveyed by traditional principles of the criminal culture - depending on the interpretation that the regional courts (European or Inter-American) make of the relationship between human rights and criminal law.This research project is, therefore, a proposal for an analytical study of the decisions of the regional courts for the protection of human rights - with greater attention to the European Court of Human Rights - when faced with problems related to the choices of criminalization or to the scope of interpretations relating to the criminal protection of relevant values.Specifically, emphasis will be placed on four aspects of the relationship between human rights and criminal law: the question of the humanity of punishment and international criteria for ensuring respect for the dignity of the prisoner, protection of women in international human rights texts and the role of criminal law, the principle of legality in the face of conflict between constitutional principles of criminal law and the need to protect human rights, and international orders for criminalization.