The paradigm of interculturality in the Brazilian State and the application of the sentence to the indigenous defendant: the criterion of self-identification as defining factor of the right to mitigating the sentence and to the special regime of semi-freedom defined in article 56 of the Statute of the Indigenous People

Abstract

This article has the purpose of demonstrating how the understanding of the Brazilian Superior Court of Justice - according to which the application of article 56 of the Statute of the Indigenous People is restricted to indigenous defendants who are not socially integrated - goes against the current constitutional order and the binding provisions within the scope of the Brazilian Judiciary system. The methodology of the work consists of bibliographical research and jurisprudential survey through virtual consultation on the Superior Court of Justice’s website, considering the framework of Resolution No. 287 of the National Council of Justice. Based on the theoretical framework adopted, in the end the understanding of the rights of article 56 of the Statute of the Indigenous People is preferred as subjective rights of the indigenous defendant, whose condition in the criminal process must adhere to the criterion of self-identification.