(In)constitucionalidade da candidatura avulsa: uma análise entre a repercussão geral da matéria e a disciplina jurídica do Pacto de San José da Costa Rica

Abstract

The purpose of this paper is to conduct a legal analysis on the constitutionality of single candidates in the Brazilian electoral system, taking into consideration the review of the matter by the Federal Supreme Court in 2017, through the Extraordinary Appeal with Interlocutory Appeal (ARE) 1054490. Through this judgment, the Supreme Court recognized the general repercussion of the matter, bringing the merits of the matter to further judgment of its constitutionality before the 1988 Citizen Constitution and international human rights treaties, in particular the San Jose Costa Rican Pact. With the context of this theme, the present paper analyzes the general repercussion of the subject, listing some of the reasons that justify its recognition, such as the current political crisis in Brazil, resulting in part from the lack of credibility and representativeness of the current Brazilian electoral system, where a monopoly of political parties is established. The research also unfolds in the survey of the doctrines and theories of the Supreme Court that address the normative hierarchy of international human rights treaties in our legal system, as well as a brief historical and comparative synthesis of electoral systems and independent candidates in Brazil and in other countries. Finally, it is considered the change of understanding of the Supreme Court in its precedents, where it is necessary to recognize the constitutional character of single candidacies and international treaties of human rights, through the normative text of the San Jose Pact, although their reception was prior to Constitutional Amendment 45/2004, due to the fundamental rights brought there in its wording.