Omissões inconstitucionais e inconvencionais no tráfico de pessoas: a Lei Penal sob a ótica do Sistema Constitucional de Tutela das Vulnerabilidades

Abstract

This doctoral thesis examines the omission in Brazilian criminal law regarding the lack of a clear specification of the term “abuse” in the crime of human trafficking, particularly in relation to the victim’s “vulnerability.” The analysis begins by defining vulnerability as a condition that exposes individuals to rights violations, especially in the context of human trafficking. The study criticizes the absence of a precise definition of “abuse” and argues that the term should be interpreted in accordance with the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, which defines human trafficking as a crime committed “by means of the abuse of a position of vulnerability” of the victim. The thesis further emphasizes the need to interpret Brazilian criminal legislation in conformity with international human rights treaties and Brazil’s 1988 Federal Constitution, ensuring alignment with the constitutional-legal system designed to protect vulnerable individuals. It advocates for addressing the legislative omission to guarantee the effective protection of victims, outlining the necessary corrective measures. Through the method of interpretation in conformity with the Constitution, the study proposes applying criminal law in concrete cases by establishing a relative logical presumption of abuse whenever the victim's vulnerability is identified. Additionally, it underscores the importance of ensuring proper victim support during investigations to prevent revictimization and secure the collection of valid evidence. The research also highlights the need for an integrated approach between law enforcement and the judiciary. The conclusion reinforces that effectively combating human trafficking requires strengthening the protection network, promoting policies for victim support, social reintegration, and efficient investigation. It also stresses that the victim’s vulnerability must be a central consideration in judicial proceedings. The thesis ultimately advocates for an interpretation of the law that aligns with both the Constitution and international treaties, while also proposing legislative changes to enhance the protection and suppression of human trafficking