Regarding the expansion of those legitimate to file a Transfer of Jurisdiction Incident (IDC)

Abstract

A new and important rule introduced by Constitutional Amendment No. 45/2004 seems to have received less attention than it deserves, namely, that relating to § 5 of Article 109 of the Constitution. Through this rule, the Attorney General of the Republic gained the prerogative to initiate, before the Superior Court of Justice, the so-called Transfer of Jurisdiction Incident (IDC), through which the processing of a judicial case involving, or investigating, a serious violation of human rights can be transferred to the Federal Court. Before the reform, jurisdiction to judge various situations involving serious violations of human rights was ordinarily held by the state judicial powers. Almost nine years after the constitutional reform that created it, the Incident has been raised only a few times (the “Dorothy Stang” case and the “Manoel Mattos” case), and only once granted (the “Manoel Mattos” case), although it can be considered that, in the meantime, there was more than one case in which the transfer would have been appropriate, due to inertia or incapacity of the state judicial authorities. Given the imminent consideration of this matter by parliament, this article argues that, since it involves human rights, the model adopted within the human rights systems of the OAS and the UN should be followed, that is, that complaints of serious human rights violations attributable to the State should be reported directly by individuals or groups of individuals, or even directly by legally recognized NGOs.