The duty of impartiality of the judicial authority and the conventionality control from art. 23 of the LC 64/1990

Abstract

The purpose of this study is to offer an interpretation of art. 23 from the LC n. 64/90 in accordance with human rights, reducing its scope of incidence, to make it compatible with the requirements of preserving the objective impartiality of the judicial authority, a requirement that is part of the body of conventional guarantees of due legal process (art. 8 of the ACHR). The proposal requires a double effort to systematize, on the one hand, as from the inductive method, to establish the scope to be attributed to the duty of impartiality on the Inter-American Human Rights System (based on the systematization of the precedents of the
Inter-American Court of Human Rights); on the other hand, in a typical deductive exercise, carry out a judgment on the adequacy of the legal powers assigned to the judicial authority in the exercise of the electoral sanctioning power aimed at safeguarding the legitimacy of elections in the face of different forms of abuse of power contemplated in the Brazilian electoral legislation. In the end, it is argued that the judicial authority cannot enjoy a wide margin of discretion to determine the procedural instruction, under penalty of violating the duty of objective impartiality that integrates the set of guarantees of the conventional due process.