Human rights must be protected in a multilevel and plural constitutionalism perspective. The exponential increase in the number of infections due to Coronavirus and the (questionable) governmental initiatives for the containment of the disease demand the inter-American system to take action. The IACHR issued precautionary measures directed towards Brazil to contain the Covid-19 contamination, safeguard the particularities of each region and each group such as: Munduruku Indigenous People, Yanomami and Ye'kwana indigenous peoples, Guajajara and Awá Indigenous Peoples of the Araribóia Indigenous Land. The IACHR warned about the serious public health situation in Brazil and it drew also attention to the Brazilian prison system, striving for the adoption of alternative measures to prison, as well as the application of measures to reduce overcrowding in prison units. What impact did these measures have on the management of the pandemic in Brazil? how multilevel constitutionalism could help?
Due to the actions of the Brazilian federal government during the pandemic, the crime of genocide was widely discussed. The issue reached its peak after a show held on July 11, 2020, in which a judge from the Federal Supreme Court associated the practices of the Bolsonaro Government and the Armed Forces with this crime. For some reason, some concerns have become public about the trivialization of the reference to genocide in relation to Bolsonaro's criminal practices. Undoubtedly, framing a crime of such magnitude requires careful consideration of the penal type. That said, I would like to contribute by showing concrete examples, focusing on isolated indigenous peoples, that there is significant evidence that Brazilian authorities, including the president, can be investigated for genocide.
When the domestic justice system is unable to deal with the crimes of its political agents, international jurisdictions need to take action. The duty to curb crimes against humanity derives directly from international commitment. If Brazilian institutions fail to judge Bolsonaro for his crimes against indigenous peoples, we hope that the ICC and history will do so. The Articulation of Indigenous Peoples of Brazil (APIB) communicated to the Court and pointed out the dismantling of indigenous policies, the encouragement of invasions of indigenous lands, and the denial of fundamental actions for our survival. This contribution aims to share the reasons for going to the ICC. In the case of indigenous peoples it presents the acts committed by Bolsonaro and his subordinates from Jan 2019 to April 2021. We report how singular acts are systematically connected to destroy indigenous peoples in Brazil. That is why we speak of crimes against humanity. That's why we talk about genocide.
Brazilian Constitution prescribes a decentralized system of public Health which is integrated by Union, States and local level. It also prescribes the common power to protect health and to provide public health services by SUS (Unified Health System). However, since the beginning of the pandemic, the president is making efforts in order to avoid scientific recommendations and to undermine federal and subnational efforts to fight COVID-19. For these reasons, Brazil’s Supreme Court had to enforce the constitutional provision that demands coordination and cooperation between branches and federal units. This paper which is part of a major research on the pandemics and the violation of human rights in Brazil done by the Center for the Studies of the Constitution (CCONS) analyzes some recent decisions by Brazil’s Supreme Court on cases concerning the pandemics and its aftermath.
The paper tackles the relationship between human rights erosion and (lack of) access to justice in the context of the crisis caused by Covid-19 pandemics. Governmental omission in measures and support for differently affected populations has increased the claims for rights. Changes in the Judicial Branch (suspension of deadlines, adjustment in procedures and digitalization of hearings and services) and restrictions to judicial intervention in public policies have reduced possibilities of adjudication, rights enforcement or redress. The paper analyzes: a) the impact of digital exclusion and/or illiteracy in access to justice; b) (in)sufficiency of emergency protocols designed for vulnerable groups (communities facing eviction, prison population, women in situations of violence, tradicional people). The health crisis has been frequently invoked to (miss)frame policies and to pass bureaucratic and legal setbacks long awaiting in the conservative agenda with feeble resistance from courts.
Since the beginning of the pandemics the Brazilian president has ruled through decrees and provisional measures and it has exorbitated his legislative power. The legislative powers of the president are derived from Art 84, IV of Brazilian Constitution. The president has no constraint in cheating the Constitution. In the Brazilian system of checks and balances legislative presidential excesses are subject to the control of the judiciary, however the answers given by the judiciary have been somehow problematic in two ways: the content of the decisions are reasonable in controlling the unconstitutional measures of the executive branch but the form not so much. That is, Brazilian Supreme Court has decided important cases in a non-deliberative manner. Monocratic decisions by a single Justice have been the rule instead of the exception. The paper wants to explore three cases relating the pandemics and involving the three government branches and the limit between the norm and the exception.