The Brazilian System of Conventionality Control in Human Rights: A Comparative Dialogue with the Italian System

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I. Opening and a shared date

Distinguished Members of the academic community, Professors, Directors and Members of the UNIVERSITÀ MEDITERRANEA DI REGGIO CALABRIA. Dear colleagues and esteemed organizers of this international conference.

It is an honor to speak at the UNIVERSITÀ MEDITERRANEA DI REGGIO CALABRIA, in a city whose name carries within it the memory of Magna Graecia -- a reminder that legal civilization in Europe began, in part, on this amazing coast. I come from a country that received much of its population and a good deal of its legal culture from Italy. Both Brazilian private and public law were heavily influenced by Italian doctrine; our procedural law is unthinkable without CHIOVENDA, CARNELUTTI, CALAMANDREI, LIEBMAN and CAPPELLETTI. For me, this is not a lecture delivered abroad. It is a conversation continued at home.

Let me open with a coincidence that is, I believe, more than a coincidence.

In October 2007, the Italian Constitutional Court delivered its twin judgments, sentenze gemelle 348 and 349, settling the rank of the European Convention within the Italian legal order and giving you the category of the norma interposta under Article 117, first paragraph of the Italian Constitution. Fourteen months later, in December 2008, the Brazilian Federal Supreme Court decided Recurso Extraordinário (RE) nº 466.343[1] and settled, after two decades of controversy, the rank of human rights treaties within the Brazilian order.

Two supreme jurisdictions, on two continents, within little more than a year of each other, faced the same question: what is the normative force of an international human rights treaty inside a constitutional State that did not intend to subordinate itself to anyone? Both answered by inventing an intermediate rung that classical positivism had not foreseen. Both were criticized, from opposite directions, as too little and as too much.

My subject is what Brazil built on that rung: controle de convencionalidade (conventionality control/controllo di convenzionalità). The term will be familiar to you, but it does not mean in Latin America what it means in Europe. That difference is the real subject of this lecture.

II. Constitutional foundations: paragraphs 2 and 3 of article 5 of the brazilian constitution

The Constitution of 1988 was drafted by people emerging from twenty-one years of military dictatorship. It is a document written by a society that had recently learned what a State can do to its own citizens, and it shows: an unusually long catalogue of fundamental rights, placed deliberately before the organization of the State. Two provisions govern our subject.

Article 5, paragraph 2, in force since 1988, states that the rights expressly listed in the Constitution do not exclude others deriving from the regime and principles it adopts, or from the international treaties to which Brazil is a party. This is an open clause: the constitutional catalogue is not closed, and treaties are one of its sources.

Article 5, paragraph 3, added by Constitutional Amendment 45 of 2004, provides that human rights treaties approved by each house of Congress, in two rounds, by a three-fifths majority, shall be equivalent to constitutional amendments.

The amendment was intended to clarify. It did the opposite. If treaties approved by that procedure have constitutional rank, what is the rank of the many treaties ratified before 2004 by ordinary procedure? The American Convention on Human Rights -- The PACT OF SAN JOSÉ -- was ratified by Brazil in 1992 and could not possibly have followed a procedure created twelve years later. Was our most important human rights treaty to be treated as an ordinary statute?

Doctrine was divided into four positions: supraconstitutional, constitutional, supra-legal and ordinary statutory rank. Behind that taxonomy lay a genuine question -- whether the pouvoir constituant of 1988, by writing paragraph 2, had already made a choice that a later amendment could not undo.

I should add, for completeness, that Amendment 45 also created a second instrument relevant to our theme: the incidente de deslocamento de competência, under Article 109, paragraph 5 — a mechanism allowing the Prosecutor-General to request that a case involving grave human rights violations be transferred from state to federal jurisdiction, precisely in order to prevent Brazil’s international responsibility from being engaged by local inertia. It is a procedural device born of an international obligation, and it is little studied outside Brazil.

III. The turn of 2008 and the doctrine of supra-legality

On December 3, 2008, in Recurso Extraordinário (RE) nº 466.343, the Federal Supreme Court decided the question. The concrete issue was almost domestic in its modesty: whether civil imprisonment of an unfaithful depositary remained lawful. The Constitution itself, in Article 5, item LXVII, permitted it; Article 7, paragraph 7, of the American Convention permits civil imprisonment only for maintenance (domestic support) obligations. The Court faced a genuine antinomy involving the constitutional text itself.

Justice CELSO DE MELLO defended the constitutional rank of all human rights treaties, based on paragraph 2. Justice GILMAR MENDES defended supra-legality: treaties stand above ordinary legislation but below the Constitution. Justice MENDES'S position prevailed, narrowly, and remains the governing doctrine.

The consequence is elegant and, I think, underappreciated. A treaty with supra-legal rank does not invalidate the Constitution -- but it paralyses the effectiveness of all ordinary legislation that contradicts it. Since civil imprisonment of a depositary was a constitutional permission rather than a constitutional command, and since every statute that gave it operative effect had been deprived of applicability, the permission became a norm without instruments. It survived on paper and died in practice. In 2009, the Court consolidated the result in Binding Precedent 25.

I ask you to hold that technique in mind, because it recurs. Brazilian conventionality control has advanced not by declaring constitutional provisions invalid -- which the Court will not do -- but by emptying the legislative machinery through which they operate.

The academic reception was fierce. VALERIO MAZZUOLI, who introduced the expression controle de convencionalidade into Brazilian scholarship, holds that all human rights treaties are materially constitutional by force of paragraph 2[2]; FLÁVIA PIOVESAN, also a noted Professor of International Law at the Pontifícia Universidade Católica de São Paulo (PUC/SP), argues similarly from the constitutional block; CANÇADO TRINDADE, a judge of the Inter-American Court, later of the International Court of Justice, and a Brazilian, regarded supra-legality as a compromise unworthy of the constitutional promise of 1988.

The criticism is well founded in theory. But supralegality, precisely because it did not threaten the supremacy of the Constitution, was acceptable to a judiciary that would have resisted a more ambitious construction. It bought consent -- and a doctrine that judges actually apply is worth more than one that is correct and ignored. Whether that is prudence or capitulation, I leave open.

IV. The inter-american doctrine and the brazilian architecture

Conventionality control, as a named doctrine, although developed by Professor VALERIO MAZZUOLI, was not a Brazilian invention. It was built by the Inter-American Court of Human Rights in a rapid sequence of judgments: ALMONACID ARELLANO V. CHILE (2006), holding that domestic judges are bound not only by domestic law but by the Convention, and must ensure that its effects are not undermined by contrary national legislation; TRABAJADORES CESADOS DEL CONGRESO v. PERU, two months later, adding that this control must be exercised ex officio; CABRERA GARCÍA AND MONTIEL FLORES v. MEXICO (2010), extending the duty to all organs of the State; and GELMAN v. URUGUAY (2011), with its most demanding proposition -- that the democratic legitimacy of a measure, there an amnesty confirmed twice by popular vote, does not cure its incompatibility with the Convention.

I pause on GELMAN, because it is where the InterAmerican system parts company with the European. STRASBOURG developed the margin of appreciation as a structured concession to national democratic choice; SAN JOSÉ developed the opposite instinct. In a continent whose recent history is a catalogue of majorities that voted, or acquiesced, in the impunity of their own security forces, that instinct is intelligible -- and it is also the source of its greatest friction.

Brazil received the doctrine into an order already equipped for it: our constitutional review (judicial review) is hybrid: diffuse review inherited from the United States and concentrated review inherited from Europe by way of Austria and, indeed, by way of Italy[3] [4]. Conventionality control was mapped onto both.

Diffuse conventionality control is exercised by any judge, at any level, in any case, and -- following the InterAmerican doctrine -- ex officio. A single-judge court in the interior of Brazil may set aside the application of a federal statute on the ground that it contradicts the PACT OF SAN JOSÉ. Notice how strong that proposition is; I shall return to it.

Concentrated conventionality control is exercised by the Federal Supreme Court through our abstract actions, among them the direct action of unconstitutionality (ADI) and the Arguição de Descumprimento de Preceito Fundamental (ADPF), our Claim of Non-Compliance with a Fundamental Precept[5]. Treaties approved under paragraph 3 serve unproblematically as an autonomous parameter, though that route has been used sparingly: only the CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES (2009) and the MARRAKESH TREATY (2018)[6].

Around this jurisprudence, Brazil has built something almost unknown in Europe: an administrative infrastructure of compliance inside the judiciary itself. By Resolutions 364 of 2021 and 544 of 2024, the NATIONAL COUNCIL OF JUSTICE (CNJ) created a Monitoring and Enforcement Unit for decisions of the InterAmerican System, scientifically coordinated by FLÁVIA PIOVESAN under memoranda with the Inter-American Court and Commission; by early 2026, some eighty-four local units had been installed across state, federal, labour and electoral courts, alongside a National Judicial Pact for Human Rights and national competitions for the best judgments applying interamerican standards -- institutional design aimed at the professional culture of the judiciary rather than at its formal competences. The philosophy of those Resolutions is very well expressed in the preamble of the Recommendation CNJ nº 168/2026: “…every national Judge is also an Inter-American Judge”.

V. Conventionality control at work - and where it stops

Let me offer three examples of the doctrine operating, and then one of it failing. The failure is the more instructive.

First, the audiência de custódia. Article 7, paragraph 5, of the Convention requires that any person detained be brought promptly before a judge; Brazilian criminal procedure, for decades, did not provide for it. In 2015, the Court of Justice of São Paulo introduced them by internal regulation, and was challenged for usurping federal legislative competence. In ADI nº 5240, the Federal Supreme Court upheld the measure: the state court had not legislated, but had regulated the implementation of a norm already in force in Brazil by virtue of the Convention. In the same year, in ADPF nº 347, the Court declared the Brazilian prison system an “unconstitutional state of affairs” and ordered custody hearings nationwide. Legislation followed later, ratifying what conventionality control had already produced.

Second, the reception of interamerican interpretation even where formally non-binding: in RE nº 511.961 (2009), the Federal Supreme Court struck down the university degree requirement for journalism, relying on Advisory Opinion 5 of 1985; in ADI nº 4275 (2018), it recognized the right of transgender persons to rectify name and gender in the civil registry without surgery or judicial authorization, invoking Advisory Opinion 24 of 2017 -- applied within months of its formulation.

Third, running in the opposite direction, from the international system into the legislature: in 2001, the InterAmerican Commission found Brazil responsible, in the MARIA DA PENHA MAIA FERNANDES case, for tolerating domestic violence through systemic judicial delay. Law 11.340 of 2006, today the backbone of our system for combating violence against women, was the direct response and bears the victim's name.

And now the failure.

In April 2010, in ADPF nº 153, the Federal Supreme Court upheld the Amnesty Law of 1979 -- the statute by which the military regime, in the course of its own controlled withdrawal, extinguished criminal liability for the crimes of the repression. The Court described it as a political pact of transition, negotiated and legitimate, and held it received (“recepcionada”) by the Constitution of 1988, i.e., the STF held that the Amnesty Law of 1979 had been validated under the 1988 Constitution.

Seven months later, the Inter-American Court decided GOMES LUND v. BRAZIL -- the Araguaia Guerrilla case -- holding that the interpretation of the Amnesty Law which prevents the investigation and punishment of grave human rights violations is incompatible with the Convention and therefore lacks legal effect. In 2018, in HERZOG v. BRAZIL, concerning the death of the journalist VLADIMIR HERZOG in military custody in 1975, it reaffirmed that position and characterized the facts as crimes against humanity, not subject to amnesty or prescription.

Brazil therefore holds two final judgments that point in opposite directions. This is not a doctrinal puzzle; it is a live contradiction in a functioning legal system.

The pending instrument is ADPF nº 320, filed in 2014 by a political party (PARTIDO SOCIALISMO E LIBERDADE - PSOL), asking the Federal Supreme Court to declare that the Amnesty Law does not extend to grave human rights violations, on the ground that ADPF nº 153 examined only constitutionality and never conducted conventionality control at all. That distinction is the core of what ANDRÉ DE CARVALHO RAMOS, a Professor of Constitutional Law at the University of São Paulo (USP), calls the theory of double control: a domestic norm must survive two independent examinations, by two courts, against two parameters, and passing one says nothing about the other. On this view the two judgments do not conflict; what conflicts is the practical result, and its resolution lies with the Brazilian court. Twelve years after filing, and sixteen after GOMES LUND, ADPF nº 320 remains undecided.

Meanwhile, the pressure has not relented. In December 2025, the Inter-American Court notified Brazil of its judgment in LEITE, PERES CRISPIM AND OTHERS, on torture and execution during the dictatorship: again crimes against humanity, again insusceptible of amnesty or prescription -- one of several condemnations in the same period.

I put the point without diplomatic softening, because a scholarly audience deserves it. Brazil has built an elaborate and genuinely admirable machinery of conventionality control, and it works reliably on questions of ordinary legality. It has not yet worked on the question that produced the doctrine in the first place: impunity for State crime. The instrument functions everywhere except at the point of its origin.

VI. A comparative dialogue with the italian experience

I turn now to the comparison, with the caution proper to a foreigner discussing your law in your university.

The structural analogy is close. Your Constitutional Court held in 2007 that the European Convention enters through Article 117, first paragraph, as an interposed norm: it does not acquire constitutional rank, but it conditions the validity of ordinary legislation, since a statute contrary to the Convention is thereby contrary to Article 117. Our Federal Supreme Court held in 2008 that the American Convention is supra-legal: no constitutional rank, but paralysis of contrary ordinary legislation. Two courts, the same intermediate solution, the same instinct -- that international human rights law must bind the legislature without displacing the Constitution.

But the procedural consequence diverges sharply, and this is the point I wish to leave with you.

In the Italian system, the ordinary judge who identifies a conflict between a statute and the European Convention may not disapply the statute. He must raise a question of constitutionality and refer it to the Constitutional Court -- a deliberate centralization, reinforced in judgment 49 of 2015, which limited the binding force of Strasbourg case law to what the Court called consolidated law. Italian judges do disapply national law for conflict with European Union law, following Simmenthal; but the Convention was expressly distinguished from Union law precisely to prevent that.

In the Brazilian system, there is no such reservation. Any judge may disapply a statute for incompatibility with the American Convention, without referral, without a plenary reservation, and on his own motion. In other words: Brazil treats the American Convention roughly as Italy treats Union law, not as Italy treats the European Convention.

The consequences run in both directions. The Brazilian model penetrates deeply and quickly; interamerican standards reach the first instance without waiting for an abstract ruling. The Italian model produces coherence, and protects the system from the fragmentation that follows when thousands of judges interpret a treaty independently. In my experience the risk of incoherence is real, and the quality of first-instance conventionality control, highly uneven.

There is a second divergence, doctrinal rather than procedural. Italy has developed the theory of controlimiti -- in judgment 238 of 2014 and the TARICCO sequence: a nucleus of supreme constitutional principles that no external order may override, and which the Constitutional Court reserves the power to identify. Latin America has developed almost the opposite. The ius constitutionale commune latinoamericano, elaborated by VON BOGDANDY, FERRER MAC-GREGOR and PIOVESAN, proposes not a limit against the interamerican order but a shared constitutional space constructed jointly by it.

The reason is historical, and I say it without implying superiority in either direction. European counter-limits were developed by constitutional democracies defending their achievements against external orders they had freely joined. Latin American conventionality control was developed by fragile democracies importing external constraints against their own institutions, because those institutions had recently failed. When a country's own supreme court has upheld an amnesty for torturers, the argument that supreme domestic principles must prevail over international human rights law sounds different than it does in Rome or in Karlsruhe.

Which is why ADPF nº 320 matters far beyond Brazil. If our Federal Supreme Court ever decides it, it will be deciding whether Brazil has counter-limits -- and against what.

VII.  Closing theses

Allow me to close with four propositions, offered for your criticism.

First, conventionality control in Brazil is not a theory but an operating system. It functions daily, at every level of the judiciary, with a dedicated administrative infrastructure. Whatever its deficits, it is no longer academic.

Second, its technique is characteristically indirect. Brazil has advanced not by subordinating the Constitution to the Convention, which the Federal Supreme Court refuses, but by draining the legislative machinery through which incompatible constitutional permissions operate -- quieter than the doctrinal debate suggests, and considerably more effective.

Third, its limits are political rather than technical. The doctrine is fully equipped to resolve the Amnesty Law question, and has not been used for that purpose in sixteen years. No refinement of theory will supply what has been withheld as a matter of institutional will.

Fourth, and for this audience the most important: our two systems have reached strikingly similar structural solutions from opposite historical starting points, and each possesses what the other lacks. Italy has coherence, centralized control and a sophisticated defense of constitutional identity. Brazil has penetration, immediacy and a sophisticated distrust of constitutional identity as an argument. Neither is a model for the other. But each is the best available mirror for the other's blind spot -- and that, I think, is what comparative law is finally for.

Selected references

• Brazilian doctrine

MAZZUOLI, Valerio de Oliveira. O controle jurisdicional da convencionalidade das leis. São Paulo: Revista dos Tribunais.

PIOVESAN, Flávia. Direitos Humanos e o Direito Constitucional Internacional. São Paulo: Saraiva.

RAMOS, André de Carvalho. Curso de Direitos Humanos. São Paulo: Saraiva. (theory of double control)

CANÇADO TRINDADE, Antônio Augusto. Tratado de Direito Internacional dos Direitos Humanos.

CONCI, Luiz Guilherme Arcaro; MEZZETTI, Luca (coord.). Diálogo entre Cortes. Brasília: OAB.

INTERNATIONAL DOCTRINE

VON BOGDANDY, Armin; FERRER MAC-GREGOR, Eduardo; PIOVESAN, Flávia (eds.). Ius Constitutionale Commune en América Latina.

Inter-American case law

Almonacid Arellano v. Chile, 26 September 2006

Trabajadores Cesados del Congreso v. Peru, 24 November 2006

Cabrera García and Montiel Flores v. Mexico, 26 November 2010

Gelman v. Uruguay, 24 February 2011

Ximenes Lopes v. Brazil, 4 July 2006

Gomes Lund and others v. Brazil, 24 November 2010

Herzog and others v. Brazil, 15 March 2018

Leite, Peres Crispim and others v. Brazil, notified 11 December 2025

• Brazilian case law

STF, RE 466.343/SP, 3 December 2008; Binding Precedent 25 (2009)

STF, RE 511.961/SP, 2009

STF, ADPF 153, 29 April 2010

STF, ADI 5240, 2015; ADPF 347, 2015

STF, ADI 4275, 1 March 2018

STF, ADPF 320 (pending)

• Normative instruments

Constitution of 1988, Article 5, §§2 and 3; Constitutional Amendment 45/2004

CNJ Resolution 364/2021, amended by Resolution 544/2024 (Monitoring and Enforcement Unit)

Law 11.340/2006 (Maria da Penha Law)

• Italian comparative material

Corte costituzionale, sentenze 348 and 349 of 2007

Corte costituzionale, sentenza 238 of 2014

Corte costituzionale, sentenza 49 of 2015

Corte costituzionale, ordinanza 24 of 2017 and sentenza 115 of 2018 (Taricco)

[1] Extraordinary Appeal to the Brazilian Federal Supreme Court (STF): the equivalent of a writ of certiorari to the U.S. Supreme Court. It is an appeal filed before the STF claiming that a lower Court decision violated the Constitution. It is the procedure vehicle that enables the exercise of diffuse/concrete judicial review.

[2] VALERIO MAZZUOLI, a noted Brazilian Professor of international law, was indeed the first to develop the theory in a comprehensive and systematic way in Brazil, starting with his early works in the 2000s before it was adopted by the STF and by the CNJ.

[3] Two years after the 1988 Constitution came into force, Professor MAURO CAPPELLETTI, speaking at a conference in Brazil, observed that our Charter is highly virtuous and is supported by a wide-ranging and robust system of constitutional adjudication or of judicial review (Anais da Conferência Nacional da OAB, Belo Horizonte/MG, 1990).

[4] As Professor LUIGI FERRAJOLI has emphasized, speaking at a 2013 conference in Brazil, the 1988 Brazilian Constitution is one of the most advanced in the world and can be classified as a third-generation Constitution: it not only lays down civil and political rights, but also encompasses social, economic, cultural and environmental rights, and establishes a comprehensive system of constitutional adjudication to ensure their enforcement (CONJUR -- https://conjur.com.br/2013-out16/constituicao-brasileira-avancadas-mundo-luigi-ferrajoli/)

[5] The ADPF is a remarkable instrument of our system of constitutional review. It allows the Federal Supreme Court to examine the compatibility of any normative act -- including pre-constitutional law -- with a fundamental precept of the Constitution. It therefore serves two main purposes: (i) as an instrument of abstract review, to assess whether a law or act violates a fundamental precept, and (ii) as an instrument to review pre-constitutional legislation, determining whether it was received or not by de 1988 Constitution. Like all other actions of abstract constitutional review, the ADPF can only be filed by a closed list of organs and entities expressly legitimized by the Constitution –- such as the President, the Prosecutor-General, Political Parties represented in Congress, and The Brazilian Bar Association.

[6] The MARRAKESH TREATY is an international copyright agreement designed to end the “book famine” by making it easier to create and share accessible books for people who are blind, visually impaired, or otherwise print-disabled.