Perfis do controle jurisdicional de políticas publicas: parâmetros objetivos e tutela coletiva

This paper focuses on a study of public policy jurisdictional control as some effectiveness mechanism for cultural, economical, and social fundamental rights. It investigates the juridical profile of public policies based on premises of the current (Neo)Constitutional State model and the assertion of an essentially constitutionalist Law paradigm from its genesis to its most peculiar elements, and through tormenting issues, such as: its position between Law and Politics, the difference with reflective subjective rights, and the problem of high financial costs. Once its object is identified, it moves forward into the theme itself, which is that of jurisdictional control, investigating its legitimacy based on paradigmatic judicial precedents and the facing of themes such as: current role of the Judicial Power, the splitting of state functions, administrative discretion, financial affordability, illegal omissions, and budget control. Finally, it examines, as its study central object, objective parameters for definition control, execution, and transparency of public policies, as well as identifying the most appropriate collective jurisdictional tutoring to its purposes together with some of its law process means. Therefrom, it shows new perspectives for the recent study on jurisdictional control of public policies, building foundations for the fundamental rights effectiveness

A Competência normativa das agências reguladoras e seus limites principiológicos no direito brasileiro

The transition of the liberal state to welfare state, globalization and the crisis of funding from the government spending on the multiple roles demanded an overhaul of the means of intervention in the economic domain and structure organizational of the Public Administration by enhancing the performance of regulatory functions. Therefore appear in Brazilian law independent regulatory agencies with legal administrative particular that gives autonomy increased, with fixed terms and stability of its leaders, police and competencies, normative and administrative judges. In this scenario, given the autonomy granted by the laws of the creation of regulatory agencies, the legislative competence becomes the most contentious issue, as not infrequently is innovation in the legal system. The main foundations of innovative extension producible by regulatory agencies, which diverges doctrine, are the constitutional attribution of own competence of the Public Administration and the discretionary power. Thus, it is necessary to delimit the constitutional and legal foundations of special legislative powers of these autarchies in our legal system, seeking ways to limit and control the production rules of those entities, for the purpose of position them before the powers constitutionally constituted. We note that with the constitutionalisation of administrative law regulatory agencies found limits to its performance in the normative constitutional principles, especially through the principles of efficiency, morality and proportionality, which has enabled a more effective control of their normative acts

Parâmetros de concretização judicial do direito fundamental à saúde no fornecimento de medicamentos

In Brazil, social rights have always been considered secondary legal categories, whose implementation could wait for the pending of political decisions. At the end of the Second World War, International Law emphasizes the protection of human beings, raising his dignity as a legal pillar of the legal orders and one of the main foundations of Constitutions. At the post-positivism Constitutionalism, the realization of social rights receives special attention with the assumption of supremacy and normativity of the Constitutions, while the judiciary participates in the realization of democracy, not only as applicator of laws, but also as the guardian of constitutionality of the acts and administrative omissions, creatively contributing to the constitutional achievement, filling gaps and normative state omissions. In this aspect, the supply of medicines, whose costs can not be supported by the individual, keep a close connection with the right to life, health and dignity of the human being, as the subject of numerous lawsuits directed against the Public Administration. Such phenomenon has caused intense debate regarding judicial activism and legitimacy of these decisions, particularly on the need to define what are the limits and possibilities considering the principle of separation of powers and the principle of reserve of the possible; bieng this the problematic developed in this research. Thus, this research aims to verify the legitimacy of judicial decisions that determines to the Public Administration the compulsory providing of medicine to those who can not afford the cost of their treatment, as well as, contribute to the dogmatic constructions of parameters to be observed by judicial interference. Regarding the methodology, this research has an investigative and descriptive caracter and an theoretical approach based on bibliographical data collection (judicial and doutrine decisions) that received qualitative treatment and dialectical approach. As a result, it is known that the judicial decision that determines the supply of medicines to those individuals who can not afford them with their own resources is legitimate and complies with the democratic principle, not violating the principle of separation of powers and the reserve of the possible, since the judicial decison is not stripped with an uniform and reasonable criteria, failing to contain high burden of subjectivism and witch signifies a possible exacerbation of functions by the judiciary, suffering, in this case, of requirement of legal certainty. It is concluded that the Court decision that determines the government the providing of medicine to those who can not afford the cost of treatment should be based on parameters such as: the protection of human dignity and the minimum existencial principle, the inafastable jurisdiction principle; compliance critique of the possible reserve principle; subsidiarity of judicial intervention; proportionality (quantitative and qualitative) in the content of the decision; the questioning about the reasons for non-delivery of the drug through administrative via; and, finally, the attention not to turn the judiciary into a mere production factor of the pharmaceutical industry, contributing to the cartelization of the right to health

A alteração do tipo penal de adulteração de combustíveis: reflexo da constitucionalização do direito penal no mercado de combustíveis

The neoconstitutionalism led to a process of ethical revaluation of the normative systems and the process of constitutionalization of the many fields of law. This study examines the consequences of this process in criminal law, so important a Law field for the protection of the most valuable assets by the society, including the fundamental guarantees, thus emphasizing the necessity of protection of the collective and individual rights, which are guided by the observance of the defendants individual rights in the course of criminal proceedings and the search for the best efficiency of penal protection, according to the corollaries of defense against the state (prohibition of the excess or Übermassverbot) and the provision of rights by the state (prohibition of insufficient protection or Untermassverbot). The offense of fuel adulteration is taken as an object of study, since it is a vital market to a nation dependent of people and good s movement for their living, driven by fossil and biofuels. Such a crime affects essential legal interests to the development of society, interests such as the environment, consumer relations and economic order, particularly the principle of free competition. This paper seeks to analyze the need of a greater efficiency of this particular criminal protection, once concluded the conduct harm and social fear as a consequence by it as growing, and therefore having its former crime type, engraved in Article 1 of Law No. 8.176/1991, rewritten in compliance with the criminal law s principle of legality. Thus, the reformation proposals and legislative creation involving this crime were observed, with emphasis on the bill No. 2498/2003, which keeps it as blank heterogeneous criminal norm, kind of penal normative whose constitutionality is raised, including the forethought of criminal responsibility in the perpetrating of the offense as culpable and subsequently increasing the applicable minimum penalty, as well as the inclusion of new activities in the typical nucleus

O direito coletivo prestacional à saúde e o poder judiciário: a concretização do art. 196 da Constituição de 1988 pela via jurisdicional

During the ninth century, owing to the process of industrialization, new social conflicts were showed, forcing the Government not to remain inert. The necessity of answer to these new demands requires from the State some actions that assure the new economic, cultural and social rights, able to exceed the formal equality, according to the principles of redistributive equality and well-being. Among the social rights, the right to health is showed up, which is placed at the Universal Declaration of Human Rights and the International Treaty for the Economic, Social and Cultural Rights, as a necessary term to promote the dignity and the free development of the human personality. Under the Constitutional Law, it is clear that the implementation of the right to health, placed at the 6th article of the Brazilian Constitution, demands a government activity, which usually requires a provision of material goods, depending on budgetary resources. The Legislative and Executive Branches have a very important role in compliance with the constitutional regulations about the satisfactory offer of health care services, besides the correct use of the resources at this area. The adoption of public policies is the way of Government action to the planning and realization of this right. Though, some public policies are usually made apart from the social compromises, to the detriment of the basic social rights. The government has a discretionary competence to manage the health services. That is the reason it is necessary the control of the political choices, through the popular control, the extrajudicial control by the Account Courts, or the judicial review. Owed to the constitutionalization of social rights, the constitutional justice has a very relevant role, concerning to the constitutional jurisdiction, in a way the Judiciary Branch assume your position as a player that transforms the society. On the control of the public health policies, there is a cast of official instruments, judicial or not, to the guarantee of the collective right to the public health services, and to allow the citizens to reach the real implementation of the right to health

Os conselhos como mecanismos de democratização da política educacional :participação e poder de decisão nas ações do Conselho de Controle Social do FUNDEF no município de Parnamirim/RN

This study board the FUNDEF social control council implementation in Parnamirim/RN city, concerning their representatives participation in the accompaniment (decision power) in resort, in front of governmental politics of decentralization, unleashed in 90´s, seen in decentralization process needs the society participation in decisions of educative institutions and represent an efficient way of solve the problems difficult the educational management actions. For this, the council creation of Brazil manager configure, since the 80´s, detaching, and the single characterizing, in actual context. The objective is raise pertinent questions of thematic of representatives members participation of collegiate organs, evidencing the decision power of these, in public resource control. The theory-methodological referential the literature treat the participation and power decision of FUNDEF social control decision, such as politics directrix that rules this council. It utilizes as proceeding of collecting data the semi-structured interview and analyze of meeting register to understand the empirics of council implantation in this city, in view of that the electoral process configured in 2003, showed as a innovation, because the counselor is indicated by the local public power representatives (in this case the education municipal secretary). The research result show the representatives have difficult, to accompany the FUNDEF resources amount, particularly in concern in the financial resources (ratio) over plus. Finally, emphasize the importance of democratization in the relations between the state and civil society, elucidating and exciting reflections a: democratic participation in control of public recourses for education, educational management and civil society mobilization in access of public and cultural cash which the citizen has rights

Lógica Fuzzy para Controle de pH em um Processo Petrolífero

This work proposes the design, the performance evaluation and a methodology for tuning the initial MFs parameters of output of a function based Takagi-Sugeno-Kang Fuzzy-PI controller to neutralize the pH in a stirred-tank reactor. The controller is designed to perform pH neutralization of industrial plants, mainly in units found in oil refineries where it is strongly required to mitigate uncertainties and nonlinearities. In addition, it adjusts the changes in pH regulating process, avoiding or reducing the need for retuning to maintain the desired performance. Based on the Hammerstein model, the system emulates a real plant that fits the changes in pH neutralization process of avoiding or reducing the need to retune. The controller performance is evaluated by overshoots, stabilization times, indices Integral of the Absolute Error (IAE) and Integral of the Absolute Value of the Error-weighted Time (ITAE), and using a metric developed by that takes into account both the error information and the control signal. The Fuzzy-PI controller is compared with PI and gain schedule PI controllers previously used in the testing plant, whose results can be found in the literature.

Controlador preditivo não linear aplicado ao controle de golfadas em processos de produção de petróleo

Slugging is a well-known slugging phenomenon in multiphase flow, which may cause problems such as vibration in pipeline and high liquid level in the separator. It can be classified according to the place of its occurrence. The most severe, known as slugging in the riser, occurs in the vertical pipe which feeds the platform. Also known as severe slugging, it is capable of causing severe pressure fluctuations in the flow of the process, excessive vibration, flooding in separator tanks, limited production, nonscheduled stop of production, among other negative aspects that motivated the production of this work . A feasible solution to deal with this problem would be to design an effective method for the removal or reduction of the system, a controller. According to the literature, a conventional PID controller did not produce good results due to the high degree of nonlinearity of the process, fueling the development of advanced control techniques. Among these, the model predictive controller (MPC), where the control action results from the solution of an optimization problem, it is robust, can incorporate physical and /or security constraints. The objective of this work is to apply a non-conventional non-linear model predictive control technique to severe slugging, where the amount of liquid mass in the riser is controlled by the production valve and, indirectly, the oscillation of flow and pressure is suppressed, while looking for environmental and economic benefits. The proposed strategy is based on the use of the model linear approximations and repeatedly solving of a quadratic optimization problem, providing solutions that improve at each iteration. In the event where the convergence of this algorithm is satisfied, the predicted values of the process variables are the same as to those obtained by the original nonlinear model, ensuring that the constraints are satisfied for them along the prediction horizon. A mathematical model recently published in the literature, capable of representing characteristics of severe slugging in a real oil well, is used both for simulation and for the project of the proposed controller, whose performance is compared to a linear MPC

Sistema de conversão de energia eólica baseado no gerador de indução duplamente alimentado: análise e contribuição ao controle da máquina

The humanity reached a time of unprecedented technological development. Science has achieved and continues to achieve technologies that allowed increasingly to understand the universe and the laws which govern it, and also try to coexist without destroying the planet we live on. One of the main challenges of the XXI century is to seek and increase new sources of clean energy, renewable and able to sustain our growth and lifestyle. It is the duty of every researcher engage and contribute in this race of energy. In this context, wind power presents itself as one of the great promises for the future of electricity generation . Despite being a bit older than other sources of renewable energy, wind power still presents a wide field for improvement. The development of new techniques for control of the generator along with the development of research laboratories specializing in wind generation are one of the key points to improve the performance, efficiency and reliability of the system. Appropriate control of back-to-back converter scheme allows wind turbines based on the doubly-fed induction generator to operate in the variable-speed mode, whose benefits include maximum power extraction, reactive power injection and mechanical stress reduction. The generator-side converter provides control of active and reactive power injected into the grid, whereas the grid-side converter provides control of the DC link voltage and bi-directional power flow. The conventional control structure uses PI controllers with feed-forward compensation of cross-coupling dq terms. This control technique is sensitive to model uncertainties and the compensation of dynamic dq terms results on a competing control strategy. Therefore, to overcome these problems, it is proposed in this thesis a robust internal model based state-feedback control structure in order to eliminate the cross-coupling terms and thereby improve the generator drive as well as its dynamic behavior during sudden changes in wind speed. It is compared the conventional control approach with the proposed control technique for DFIG wind turbine control under both steady and gust wind conditions. Moreover, it is also proposed in this thesis an wind turbine emulator, which was developed to recreate in laboratory a realistic condition and to submit the generator to several wind speed conditions.

Universalização do acesso à saúde e regulação dos planos privados de assistência à saúde: a atuação regulatória da ANS como instrumento de harmonia contratual e viabilização do papel suplementar da iniciativa privada na efetivação do direito social à saúde

While essential to human nature, health and life have been protected since ancient times by various areas of knowledge, particularly by the Law, given its dynamics within the regulation of social interactions. In Brazil, health has been granted major importance by the Federal Constitution of 1988, which, disrupting the dictatorial authoritarianism, inaugurating a Social State and focusing on the values of freedom and human dignity, raises health to the condition of a social right, marked predominantly by an obligational bias directed, primarily, to the State, through the enforcement of public policies. Although, given the limitation of the State action to the reserve for contingencies, it turns clear that an universalizing access to public health is impossible, seen that the high cost of medical provisions hinders the State to meet all the health needs of the rightholders. As a result of the inefficiency of the State, the effort of the Constituent Assembly of 1988 in creating a hybrid health system becomes nuclear, which, marked by the possibility of exploration of healthcare by the private initiative, assigns to the private enterprise a key role in supplementing the public health system, especially through the offer of health insurance plans. At this point, however, it becomes clear that health provisions rendered by the private agents are not unlimited, which involves discussions about services and procedures that should be excluded from the contractual coverage, for purposes of sectoral balance, situation which draws the indispensability of deliberations between Fundamental Rights on one hand, related to the protection of health and life, and contractual principles on the other hand, connected to the primacy of private autonomy. At this point, the importance of the regulation undertaken by the ANS, Brazilian National Health Agency, appears primordial, which, by means of its seized broad functions, considerable autonomy and technical discretion, has conditions to implement an effective control towards the harmonization of the regulatory triangle, the stability and development of the supplementary health system and, consequently, towards the universalization of the right to health, within constitutional contours. According to this, the present essay, resorting to a broad legislative, doctrinal and jurisprudential study, concludes that economic regulation over the private healthcare sector, when legitimately undertaken, provides progress and stability to the intervening segment and, besides, turns healthcare universalization feasible, in a way that it can not be replaced efficiently by any other State function.

Criminalização do porte de drogas para consumo pessoal: uma perspectiva jurídico-constitucional

This dissertation has the main objective to assess the legal and constitutional legitimacy of the legislative state act that criminalizes the conduct of carrying drugs for own consumption - in the case of Brazil, art. 28 of the Federal Law n.º 11.343 of August 23rd, 2006. Therefore, it is done, initially, a contextualization, pointing the main regulatory frameworks, internal and external, of what is conventionally called prohibition in the matter of drugs, as well as the different species of liberalizing initiatives today on an upward trend in the international scenario. Then analyzes the state intervention in question in the light of references of human dignity, freedom and privacy, emphasizing, in the point, among other contributions, the various precedents of foreign constitutional jurisdiction over the theme. Immediately thereafter, confronts the policy in screen with what is perhaps, these days, the main control mechanism of the restrictive measures of fundamental rights, namely the proportionality test, here represented by classical elements of appropriateness, necessity and proportionality in the strict sense. After that, it examines the criminalization on the agenda before the parameter of equality and the general interests of health and public safety. Based on theory and empirical enrolled in the development, it is concluded, finally, the unconstitutionality of the option of the ordinary legislature to impose criminal penalties on users - problematic or not - of substances or products capable of causing physical or psychological dependence.

O direito fundamental à igualdade no contexto da identidade sexual no Brasil: um estudo da situação jurídico-constitucional com ênfase no exame da suposta inconstitucionalidade por omissão do legislador civil

This dissertation analyses the Brazilian Supreme Court’s judgement in the Non-compliance Action of the Fundamental Precept 132/RJ and in the Direct Action of Unconstitutionality 4277/DF, which created in the country the same-sex civil union. In This decision, the STF interpreted according to the constitution Article 1.723 of the Civil Code, invoking several fundamentals reaffirmed in the Constitution. From all these laws invoked by the Supreme Court to support the pretorian creation, the content of consitutional Law regarding equality is the only that corresponds, and it is sufficient to evidence the necessity of the creation, by legislator, of the institute for civil rights, since the Constitution forbids distinctions that is not expressly provided for in the Constitution (Art. 3º, IV, of Federal Constitution). In this way, Article 226, § 3º is not an exception capable of satisfying the condition of the consitutional foresight because although it protect, according its content only the civil union “between the man and the woman”, it is not able to forbid the creation, by legislator, of another kinds of families, including the same-sex civil union. As such, the reasoning, now legitimate according to the legislator, is not support the creation of institute by Constitutional Court, because the Court may enforce the Law, interpreting in the purviews allowed by the legal text and its constitutionality. In regard to the civil union of individuos of the same sex, the Court could not deduce that such union was implied by Law, like the interpretation according to the Constitution given by judges, on grounds of semantic purviews of the words man and woman, existents in both articles. The Court could not created it either, exceeding the legal system role. So, upon the institute creation, the STF, exceeded two limits: the interpretation and Law enforcement.

Otimização do controle do diagrama de radiação de radares de varredura para rastreio de foguetes usando o método GAMMC para o Caso Planar (GAMMC-P)

Launching centers are designed for scientific and commercial activities with aerospace vehicles. Rockets Tracking Systems (RTS) are part of the infrastructure of these centers and they are responsible for collecting and processing the data trajectory of vehicles. Generally, Parabolic Reflector Radars (PRRs) are used in RTS. However, it is possible to use radars with antenna arrays, or Phased Arrays (PAs), so called Phased Arrays Radars (PARs). Thus, the excitation signal of each radiating element of the array can be adjusted to perform electronic control of the radiation pattern in order to improve functionality and maintenance of the system. Therefore, in the implementation and reuse projects of PARs, modeling is subject to various combinations of excitation signals, producing a complex optimization problem due to the large number of available solutions. In this case, it is possible to use offline optimization methods, such as Genetic Algorithms (GAs), to calculate the problem solutions, which are stored for online applications. Hence, the Genetic Algorithm with Maximum-Minimum Crossover (GAMMC) optimization method was used to develop the GAMMC-P algorithm that optimizes the modeling step of radiation pattern control from planar PAs. Compared with a conventional crossover GA, the GAMMC has a different approach from the conventional one, because it performs the crossover of the fittest individuals with the least fit individuals in order to enhance the genetic diversity. Thus, the GAMMC prevents premature convergence, increases population fitness and reduces the processing time. Therefore, the GAMMC-P uses a reconfigurable algorithm with multiple objectives, different coding and genetic operator MMC. The test results show that GAMMC-P reached the proposed requirements for different operating conditions of a planar RAV.

Uma técnica de linearização por realimentação para compensação de agarramento em válvulas de controle pneumáticas

In control loops valve stiction is a very common problem. Generally, it is one of main causes of poor performance of industrial systems. Its most commonly observed effect is oscillation in the process variables. To circumvent the undesirable effects, friction compensators have been proposed in order to reduce the variability in the output. This work analyzes the friction compensation in pneumatic control valves by using feedback linearization technique. The valve model includes both dead zone and jump. Simulations show that the use of this more complete model results in controllers with superior performance. The method is also compared through simulations with the method known as Constant Reinforcement (CR), widely used in this problem.

Plano de desenvolvimento sustentável e articulação de políticas públicas: o controle de políticas ambientais pelo poder judiciário

The right to the preservation of a healthy environment is perceived as a Fundamental Right, inserted in the National Constitution and referring to present and future generations. The preservation of the environment is directly connected to the right to Health and Human Dignity and, therefore, must be treated as a personal right, unavailable, claiming for a positive response from the Brazilian State, through the development of related public policies, control of potentially harmful economic activities, with special focus on the principles of precaution and solidarity. The Brazilian judiciary must thus be attentive to the guardianship of the Fundamental Right. The judiciary control over the execution of public policies is based on obeying the principle of the separation, independence and harmony between the Powers, however it should never deviate from the constitutional obligation of caring for the effectivation of the rights and guarantees within the Magna Carta. In the balance between the principle of human dignity, from which springs the right to a healthy environment and the principle of separation of powers, the former should prevail, maintaining the latter to a core minimum.