Análise jurídica sobre a (im)prescritibilidade dos crimes de competência do Tribunal Penal Internacional

Abstract

This article presents and contrasts theses on the provision established in article 29 of the Rome Statute, which provides for the imprescriptibility of crimes within the jurisdiction of the International Criminal Court, analyzing whether such provision is an obstacle in the Brazilian legal system. The present study is an analysis of the situation, starting from initial considerations about the Rome Statute and the International Criminal Court, for a discussion about the normative level of that, finally, this study presents and contrasts doctrinal and jurisprudential understandings about the admission or not of the aforementioned rule under discussion, before the national legal system. It was used as a methodological basis, the dialectical study through analysis and contrast of doctrinal works and the jurisprudential understanding of the Supreme Court on the subject. The results obtained are that the Rome Statute regularly entered the domestic legal system and, with the approval of constitutional amendment No. 45 of 2004, it gained supra-legal normative status, with its rule of imprescriptibility of article 29 being situated at a normative level superior to the statute of limitations provided for in the Penal Code, prevailing under it and not facing the Federal Constitution of 1988. This, due to the fact that the Constitution does not present an exhaustive list of imprescriptible crimes, which allows the creation of new hypotheses of imprescriptibility , as the Supreme Court has already stated, as well as it has done recently in relation to the crime of racial injury. However, it is noteworthy that, despite the result obtained in this study and the majority doctrinal understanding of the validity of the rule, it will be up to the Supreme Court to establish a definitive understanding on the subject.