Justiça de transição na Argentina e o Sistema Interamericano de Direitos Humanos: uma análise do Caso Luis Muiña (“regra 2x1”)

Abstract

In 2017, the Supreme Court of Justice of the Nation of Argentina published the decision regarding the Luis Muiña case, who was charged for the commitment of crimes against humanity during the Argentinian dictatorship and pledged the application of the so called “2x1 rule”. This rule consists on a processual benefit which assured the counting in double of the period the prisoner remained of pretrial detention, since it was completed two years of detention. The Supreme Court decided, with a narrow majority, for the applicability of such benefit. However, nine days after the decision was published, it was approved by the National Congress the Statute Law n. 27.362, which prevents the application of the “2x1 rule” in cases of crimes against humanity. Based on these facts, the present article has as its aim to demonstrate that processual benefits, in the case of crimes against humanity, breach consolidated comprehensions of the Inter-American Court of Human Rights and the Inter-American Commission of Human Rights. The hypothesis is that there is a major consolidation of the protection of human rights in Argentina due to the legislative reaction offered by National Congress. Main aspects of Luis Muiña case are presented; an outlook of inter-american organs comprehension on the crimes here discussed is presented; finally, we debate the importance of override and backlash for human rights effectiveness. Deductive method used a documental analyses of the domestic and regional decisions and recommendations that were involved. The results of the research indicate that, if there are domestic institutions previously subordinated to the Inter-American System of Human Rights, attempts to except the existent protections can be avoided in other institutions, especially if one adds popular pressure.