Jurisdição constitucional, litígio estratégico e segurança pública: uma análise sobre a ADPF das favelas, à luz da justiça de transição

Abstract

This dissertation has as its central theme the process of the Claim of Non-compliance with Fundamental Precept n. 635, popularly known as “ADPF das Favelas”, a lawsuit filed in 2019 aimed at obliging the state of Rio de Janeiro to implement various structural measures related to the control of police activity, in line with the judgment of the Inter-American Court of Human Rights in the Favela case New Brasilia. As a research problem, we ask whether it is possible to state whether the ADPF n. 635 would be constituting advances in Transitional Justice in Brazil and the Supreme Federal Court would be respecting the limits of constitutional jurisdiction when acting on it. We carried out a thematic research in relation to the investigated constitutional action, aiming to analyze, from the perspective of Transitional Justice: 1) the participation of organizations of relatives of victims of police violence and favela residents in the public hearing of the process; 2) the mandatory protective order that established the need for police operations in Rio de Janeiro, during the COVID-19 pandemic, to be reserved for “absolutely exceptional” cases, with immediate communication to the Public Ministry. The theoretical references adopted were the Theory of Transitional Justice, Critical Criminology, Hermeneutic Criticism of Law and the Theory of Criminal Garantism. In the methodology, the applied techniques consisted of bibliographic analysis and document analysis. We conclude: 1) the participation of organizations of relatives of victims of police violence and favela residents in the public hearing was marked by a strategic litigation based on public mourning and the denunciation of structural racism in the public security and criminal justice system in Rio de Janeiro, generating impacts implementation of Transitional Justice in the sense of building collective memory, symbolic reparation and psychic reparation; 2) at least in relation to the question of the “exceptional nature” of police operations, the STF did not act in an activist manner, but rather in a manner compatible with what the Transitional Justice advocates as institutional reform/guarantee of nonrepetition; however, the Court's order has been strongly disregarded. It is hoped that this dissertation can contribute to civil society and the Public Power, including the STF itself, being able to directly recognize ADPF n. 635 as an important instrument for implementing the Transitional Justice in the state of Rio de Janeiro and, in the long term, throughout Brazil.