CONVENTIONALITY CONTROL IN ELECTORAL LAW: THE TENSION BETWEEN THE CASE LAW OF THE INTER-AMERICAN COURT OF HUMAN RIGHTS AND NATIONAL INELIGIBILITY REGIMES

Abstract

This article analyzes the dogmatic and jurisprudential impact of conventionality control within Electoral Law, addressing the normative tension between the Brazilian regime of ineligibilities and passive electoral capacity restrictions — established by the 1988 Constitution, Supplementary Law No. 64/1990, and the amendments from Supplementary Law No. 135/2010 (Clean Slate Act) — and the standards of Article 23(2) of the American Convention on Human Rights (Pact of San José, Costa Rica), as interpreted by the Inter-American Court of Human Rights (IACtHR). The central research question investigates to what extent ineligibilities based on non-final collegiate judicial convictions and the rejection of public accounts by administrative audit tribunals breach the conventional requirement of a final conviction by a competent judge in criminal proceedings. Adopting a qualitative, hypothetical-deductive methodology, the study employs bibliographic and documentary procedures, contrasting Inter-American case law (YATAMA v. Nicaragua, Castañeda Gutman v. Mexico, López Mendoza v. Venezuela, and Petro Urrego v. Colombia) with precedents from the Brazilian Supreme Federal Court (ADCs 29 and 30, ADI 4578, and RE 637.485) and the Superior Electoral Court. It concludes that resolving this tension requires overcoming purely formalistic approaches through multilevel jurisdictional dialogue, balancing the national margin of appreciation and international anti-corruption obligations (Mérida Convention) with the core protections of due process and the pro persona principle.