Uma nova proposta de controle concentrado de convencionalidade: análise da viabilidade do ajuizamento das ações do controle abstrato de normas com base nos tratados de direitos humanos não equivalentes às emendas constitucionais

Abstract

The main objective of this work is to present a new proposal of concentrated conventionality control, which has as a parameter human rights treaties that are not equivalent to constitutional amendments – against the understanding of the specialized doctrine. Departing from the Constitutional Amendment nº 45/2004, which added § 3º to art. 5º, it is argued, with the support of the notions of material and formal blocks of constitutionality, that the human rights treaties approved by the qualified majority give, in fact, cause to an authentic constitutional control. Establishing these premises, the paper analyzes the viability of filing the abstract control of norms‟ actions based on human rights treaties that have not been submitted to the procedure referred to in art. 5º, § 3º, in order to define a new paradigm of concentrated conventionality control. Grounded on deductive methodology, and bibliographic and documentary research, the conclusions reached indicate that the current constitutional order already possesses solid foundations so that the objective process instruments‟ vocation for guaranteeing the human rights enshrined in the international treaties endorsed by Brazil can be optimized in the suggested sense.