O direito penal do inimigo na atualidade: Mutual Legal Assistance Treaty – MLAT, em matéria penal, celebrado entre a República Federativa do Brasil e os Estados Unidos da América bem como seus reflexos na jurisdição brasileira

In view of the climate of instability and deep social inequalities, it has been evident in the Brazilian reality, a new way to punish systematic already developed and consolidated in other countries, in which, among other things, the criminality is anticipated only by danger that the individual sports. It appears, therefore, that the theory developed by Günter Jakobs, nominated Criminal Law of the Enemy, became subtly inserted in the Brazilian reality as well as in international relations signed. In this sense, the Brazilian State, in order to carry out the international legal cooperation in the criminal field, signed a mutual assistance agreement with the government of the United States of America. Forward the conclusion of Mutual legal Assistance Treaty (MLAT), the signatory countries voiced a desire to cooperate in order to facilitate the implementation of tasks of the authorities responsible for law enforcement in both countries, comprising research, investigation, prosecution and prevention of crime, said internalized adjustment in the Brazilian legal system by means of Decree No. 3810 of 02 May 2001. Alongside these considerations, the present study aims to analyze the Criminal law of the Enemy today, seeking to find evidence of that theory in the MLAT, international legal cooperation instrument signed between the government of the Federative Republic of Brazil and the government of the United States of America. Moreover, it has the objective to describe its effects on the Brazilian jurisdiction, especially as concerns the relativity and the suppression of human rights. Once done the introit, analysis will be carried out in the first chapter, on the definition and main features of the theory of Criminal Enemy of the law, it is imperative to approach the humanistic aspect that preceded the theory as well as the dealings given to some controversial issues surrounding it, such as the anticipation of the enemy's punishment and the disproportionality of the penalties imposed. In the second chapter will present the conceptual assumptions, historical evolution and the positives aspects, as well as the barriers and the pursuit of effectiveness of international legal cooperation. In the chapter, bedroom effective analysis of specific modality of cooperation will be held, the Mutual legal Assistance Treaty - MLAT in criminal matters, signed between the Federative Republic of Brazil and the United States of America, in which the general aspects will be addressed and the MLAT reflections on the Brazilian jurisdiction, which includes analysis about the relativity or suppression of human rights, future trends and creating stricter laws, followed by the presentation of the seized conclusion on the subject, in which, among other approaches, will be voiced understanding about the unconstitutionality certain service requests that, from these, there is the bad use of the agreed instrument.

"Em cada esquina um poeta, em cada rua um jornal": a vida intelectual natalense (1889-1930)

Coordenação de Aperfeiçoamento de Pessoal de Nível Superior - CAPES

Os conflitos de competência normativa do estado regulador brasileiro no setor administrado pela ANP

The dissertation has by objective describe the administrative activity of regulation exercised by independent regulatory agencies, observing that this activity was already done before this structures creation, however, after a really deep administrative reform that had as objective built a Public Administration with more efficiency, it passed to be done with some own peculiarities of these new structures of regulation. The work gave especial attention to what concern the conflicts of normative competency that really often happen between ANP (Agência Nacional do Petróleo, Gás Natural e Biocombustíveis) and the legislatives organs of the Republic Federative of Brazil, because energetic area has unbelievable mater to any country, and the fact of some juridical norm be against the law and be accepted is very dangerous, it affronts the constitutional principle of the legality e may put in risk the democratic Estate of law, them, regulatory dogmatic must be scientifically knows, and developed, thought and especially there are so many doctrinaires divergences about regulation constitutionality. As a theorist point, the investigation got the Logical nocontradiction principle, according Hans Kelsen and Lourival Vilanova thought, doing a philosophical reflection about the system of positive law, in which there are many antinomies, or conflicts of norms, what include the conflicts of the administrative acts expedited by ANP and the legislation of the brazilian regulatory Estate. For a better understanding and exemplify some perplexities treated by the doctrinaire angle, this work did a lucubration about a possibility of a normative conflict between a ANP resolution and the municipal legislation in a specific case, also, brought several jurisprudences for the brazilians courts of justice, that confirm the empiric existence of normative conflicts among ANP s administrative norms and federal legislation. Finally, concludes observing that the regulation is not a legislative competency delegation to regulatory agencies, is just a new exercise of the administrative function, it is a technical specialization of the public administration, that using this know-how can acting with more efficiency, however the normative power of regulatory agencies must respect the empire of law, so in this terms, the dissertation suggests the ponderation of the constitutionals principles of efficiency and legality how form to harmonizing the democratic legitimate inherent to legal norm supremacy, with the perspective of an efficient economic and institutional development

Biomassa e desenvolvimento sustentável e sócio regional no Brasil: uma análise à luz da Constituição Federal de 1988

It is verified worldwide an increasing concern with the protection of natural resources in the planet, a fact that became relevant in Brazil since the promulgation of the Constitution of 1988, based on the viewpoint of sustainable development, which seeks to promote economic activities in the country according to the need for conservation and preservation of natural resources for the use of present and future generations. In addition, we seek to reduce the differences that occur in our society by determining as a fundamental objective to be persecuted by the Federative Republic of Brazil the reduction of social and regional inequalities. A value that should also be observed in the context of economic activities developed here, since it is a general principle of financial and economic order of the country. Therefore, considering the exhaustion of world s reserves of fossil fuels, as well as the impacts on the environment, especially for the large emission of greenhouse effect gases, the debate about the need to change the global energy matrix increases while alternative energy sources appears as a bet to fulfill the contemporary aspirations for sustainability, and Brazil emerges in a very favorable position, because it has the essential natural conditions to allow this sector s full development. In this perspective, the work has the scope to analyze how the production of alternative energy sources may act in the search for concretization of constitutional values, to promote sustainable development for present and future generations, and to reduce regional and social inequalities in an attempt to improve the quality of life of the population. It will also be observed the current regulatory framework of alternative energy sources in the national laws to verify the existence of legal and institutional security, which is necessary to guarantee the full development of the sector in the country. And to investigate the expected results, it will be observed through the concrete evaluation of specific practices adopted in the industry, analyzing their actual compliance with the constitutional provisions under analysis, based on the examination of the possibility of using renewable biomass sources for biofuel production, promoting development to the country, indicating the opening lines about how this important sector can act to solve the energy challenge today

Em nome(s) dos interesses: imaginários toponímicos do Rio Grande do Norte na Primeira República

This paper has the imaginary names as a theme, from which we aim to analyze the imaginaries and invested interests that characterized the implementation and the legitimation of the First Republic in Rio Grande do Norte (1889 1930), making the process of registering names history in that place. For the construction of our object, we studied laws and provincial, state and municipal decrees; annual messages of governors; articles of the following newspapers O Povo, A República, Diário do Natal, O Seridoense, A Notícia and Jornal das Moças; the local cartography and historiography that talk about the study of names. The use of these resources, allied to the empiric method, was driven by a theoretic methodological contribution based on the history of the political imaginary, as discussed by Cornelius Castoriadis, René Rémond, Michel de Certeau and Maria Dick. For the understanding of the imaginaries that (de)limited the spaces of Rio Grande do Norte concerning its names during the First Republic, we bring moment back to the two last imperial decades moment of cleavage between Empire and Republic essential for the fomentation of the imaginary that embodied the organization of our study. From this period, we observe, through the names of some cities, how the northern space would be aligned to the imaginary dynamic of the new political system of the nation, and it had followed to a redirection process of the giving names action, according to the interests of the family organization Albuquerque Maranhão, revealed while determining the names of cities, towns, streets, schools, buildings, etc., in thankfulness to the memory of its members. In the sequence we verified how a new dynamic of giving names helped to understand the process of political transition from the Coast to the Sertão, and at the same time affirmed the power of the political and economical seridoense elite towards the government of the state in the two last decades of the First Republic

O princípio constitucional do desenvolvimento e a utilização de recursos hídricos na indústria de petróleo

As can be inferred by the title of its study The constitutional principle of sustainable development and the utilization of hidrical resources in the oil industry the transcribed pages are dedicated to the approach of the mentioned subjects which, despite being apparently different, will be shown intrinsically connected as goes by the study. The superation of this first step by the reader will lead to an important perception of the title: that the situation requires, urgently, a defined posture, a complete conduct change and, therefore, a modification of the paradigms currently establisheds. To brake barriers, modifying what is lived by, is the ultimate goal. For that, there is no unique path, linear, but there were broached the development themes, the hidrical resources theme and oil and natural gas industry at the necessary points to achieve, by the end, a comprehension for the Brazilian Federal Republic goals in the search for the application of these juridical norms. The ones whom lay down over this study shall notice that, more than a simple approach over these themes (which are still less worked and searched in Brazil), the heavy critic of an instituted and pacifically accepted reality, directly offensive of the constitutional principles. The debate evolves from punctual and specific aspects, it gains life, flies, searching how the juridical order equalizes the economic model to the environment defense. Standing by the possibility of conciliation among constitutional principles, the remodeling of an economic segment is defended, aligning it to the sustainable limits. Development, sustainable, becomes means and goals to the implementation of liberty, capacitating everyone to achieve their goals of life, their libertments, fruit of the inherent antagonism of the Constitution the sustainable development offers, while an axiological vector, a new reality to the economic order, turning it into a motriz element to the fortification of constitutional normative force and for the national development

O princípio constitucional do desenvolvimento sustentável: análise da sua concretização no Estado do Rio Grande do Norte

The Article 225 of Constitution of the Federative Republic of Brazil in its main body, stipulates that everyone is entitled to ecologically balanced environment and the use of common people and essential to the healthy quality of life, should be imposed on public authorities and the community the duty to defend it and preserve it for present and future generations. Following a universal trend, the letter raised the Brazilian environment the category of one of those values ideals of social order, dedicating it, along with a constitution of rules sparse, a chapter, itself, which definitely, institutionalized the right to healthy environment as a fundamental right of the individual. The national public policies and state should be in line with modern theories of Sustainable Development, outlined within the international society, and certainly instruments that should be made effective through the mobilization of civil society as a whole. The implementation of Human Rights, in fact, depends on a strong political action and not just a legal problem. Thus, this work of theoretical-descriptive nature we will address various dimensions of sustainable development, such as environmental education, water, sanitation, health and sustainable development plans, evaluating its current stage in our state

Liberdade de expressão: amplitude, limites e proteção constitucional no deireito brasileiro.

This dissertation focus, as main objective, to address the issue of fundamental rights and political freedoms of the individuals, guaranteed by the Constitution of 1988, with emphasis of study in the constitutional guarantee of freedom of speech, as well as in national related constitutional law institutions and its derivatives, and the connection with the historical and political affirmation of fundamental human rights and its importance for the construction, maintenance and consolidation of constitutional democracy in the Federative Republic of Brazil. This paper mainly deals with aspects of juspostive nature, focused mainly within its doctrinal aspect, making, for such, references both to the patrian doctrine and the foreign one, without forgetting the necessary jurisprudencial focus and analysis of the positive patrian planning with references to comparative law, in order to describe and analyze the emergence, evolution and dissemination of the institute, both in the major countries of the Western World and along the Brazilian constitutional history.

O município brasileiro e o direito fundamental do acesso à justiça: a prestação da assistência jurídica municipal ao necessitado

This scholarly work aims to investigate the feasibility and constitutionality of access to justice through the provision of full and free legal assistance by the Brazilian municipalities. Investigates the historical aspects of federalism in a global context, emphasizing the contributions left by American federalism. In the Brazilian context, emphasizing the importance of municipalities as federal entities and their outstanding characteristics, while addressing regional issues of federalism. Leanings to the more detailed analysis of the Brazilian municipalities, contextualizing its legal status, its independence and its constitutional powers. It is emphasized in the same way, the relevant transformations of Brazilian municipalities over the last twenty years of this Constitution of the Federative Republic of Brazil in 1988, especially the various constitutional amendments that affected the local autonomy and budgetary aspects, fiscal and skills, bringing significant changes to the municipalities. It is an approach to the concept of justice and deepening the studies on the fundamental right of access to justice in its various connotations. In this vein, it is a study on the legal advice provided in Brazil, especially the powers of the Public Defender of the States and Union, as well as the provision of such public service by Brazilian municipalities and its relevance to citizens in need. At this point, it deepens the relevance of the theme of this dissertation earning the implications of municipal performance in the provision of legal assistance provided to the needy, and the activity of the Municipal Attorney or legal counsel in conducting such a task and its implications for legal and procedural especially on the constitutionality or otherwise of the conduct of such public service, confronting the constitutional articles that are correlated with the subject. Within this context, evaluates the municipal legal assistance under the test of constitutionality, in particular the assistance given by the Executive, through the Municipal Attorney or specialized secretariats and that provided by the Legislature, although it only has the typical functions of legislating and control the municipal accounts, comes in a few municipalities in Brazil deploying sectors with the performance of legal services to the needy. At this point the thesis, one wonders if some important aspects of this activity such as political influence and patronage, very common in day-to-day municipal prosecutors and legal advisers, public employees or occupying commissioned positions within the municipal administrative structure in several municipalities throughout Brazil. Finally, there will be a conclusion as to the constitutionality of the service being done by presenting proposals and recommendations that may improve the municipal legal aid, allowing a constitutional backing to this important service is being provided in capital cities and municipalities throughout the length of Brazil

O dumping ambiental no setor sucroalcooleiro à luz do princípio da livre concorrência

The goal of this study is to investigate about the existence or absence of environmental dumping in the production of fuel ethanol in Brazil, as well as identifying the reasons why the figure of ecological dumping is pernicious to the principles enumerated in constitutional economic order, in particular the principle of free competition. In the twenty-first century environmental issues gained momentum and importance in these terms, which was seen as a mere fallacy given the concern of governments of various countries, after all, environmental protection shows up as the only means of bringing about the maintenance of life at planet. Indeed, it is essential to halt the drastic effects of climate change, and think fast and efficient solutions. Undoubtedly, the contemporary requirements that resulted in the transition to a new economy brings with it the duty of enterprise search for sustainability, and this behavior can not be passive, otherwise it is imperative to work hard and incessant economic agents, even if initially costs are high, this step will ensure a production accountable, transparent and free from accusations of environmental degradation. It is also intended to study the importance of the sector not only as a source of economic growth, but mainly, its contribution to national development, without forgetting that this is devoted in the Constitution of 1988 as one of the objectives of the Federative Republic of Brazil. In fact, the criticism most common perceptions about the production of biofuels, said the interests of the countries producing them in large scale, will eventually generate a exhaustion of soil and a significant increase in food prices. However, the ethanol produced in Brazil is unique in that it is produced from cane sugar, a product is not intended for human or animal, not to mention that the recovery of land just to the rotation with the planting other cultures. It is expected that environmental certifications are useful to demonstrate the quality of ethanol for export and to refute unfounded criticism. Finally, this study will be analyzed further solutions for the plants to develop an economic activity without damaging the environment and in compliance with Brazilian law

Os antagonismos da integração sul-americana na ordem jurídica brasileira

The economic regional integration is a phenomenon observed in numerous occasions inside the global economic reality. Watchful to that phenomenon, the 1988 s Brazilian constitutional order establish in its 4th article, single paragraph, the commitment to seek for the Latin- American integration, as a Fundamental Principle to the Brazilian Federative Republic. Regarding the mentioned constitutional disposition s realization, the Brazilian State celebrated, specially, the 1980 s Montevideo Treaty, creating the Latin-American Integration Association, and the 1991 s Asuncion Treaty, performing the duty to establish a common market, in sub regional level, with Argentina, Paraguay and Uruguay, called Mercado Comum do Sul. However, due to an addiction to a wrong comprehension of State s Sovereignty Principle, the Constitution imposes to the international rules an incorporation process, without providing any privilege to those ones regarding the integration constitutional disposition s realization, whether original or derived. The Brazilian s Supreme Court, as matter of fact, affirmed that it is not possible, facing the actual constitutional order, to grant any character of preference. Also in the controversies solution mechanism, responsible for the law s execution in case of its noncompliance, where found malfunctions, most notably the system s open character and its excessive procedural flexibility, in addiction to restricting the access of individuals. It follows from these findings, then, the lack of legal certainty provided by the Mercosul s legal system, considering its effects both international and within the Brazilian state. Among the possible solutions to reduce or eliminate the problem are using the practice of the so-called executive agreements in the Mercosul s original rules incorporation to the Brazilian state, the creation of a Mercosul s court of law and/or a constitutional reform

As zonas de processamento de exportação como instrumento de desenvolvimento e redução das desigualdades regionais

The existence of inequalities among the Brazilian regions is an indeed fact along the country s history. Before this reality the constitutional legislator inserted into the Federal Constitution of 1988, as a purpose of the Federative Republic of Brazil, the reduction of regional inequalities. The development has also been included as a purpose from the State, because there is an straight relation with the reduction of regional inequalities. In both situations is searched the improvement of people s living conditions. . In pursuit of this achievement, the State must implement public policy, and, for this to happen, it needs the ingress of income inside of the public coffers and support of economic agents, therefore the importance of constitucionalization of the economic policy. The 1988 s Constitution adopted a rational capitalism regime consentaneous with current legal and social conceptions, that s why it enabled the State s intervention into economy to correct the so-called market failures or to make the established objectives fulfilled. About this last one, the intervention may happen by induction through the adoption of regulatory Standards of incentive or disincentive of economic activity. Among the possible inductive ways there are the tax assessments that aim to stimulate the economic agents behavior in view of finding that the development doesn t occur with the same intensity in all of the country s regions. Inside this context there are the Export Processing Zones (EPZs) which are special areas with different customs regime by the granting of benefits to the companies that are installed there. The EPZs have been used, by several countries, in order to develop certain regions, and economic indicators show that they promoted economic and social changes in the places where they are installed, especially because, by attracting companies, they provide job creation, industrialization and increased exports. In Brazil, they can contribute decisively to overcome major obstacles or decrease the attraction of economic agents and economic development of the country. In the case of an instrument known to be effective to achieve the goals established by the Constitution, it is duty of the Executive to push for the law that governs this customs regime is effectively applied. If the Executive doesn t fulfill this duty, incurs into unjustifiable omission, correction likely by the Judiciary, whose mission is to prevent acts or omissions contrary to constitutional order

Justiça restaurativa no sistema penal e processual penal como forma de concretização do estado democrático constitucional

Diante do atual modelo penal e processual penal não atender aos reclamos das partes interessadas, gerando um descrédito na Justiça de um modo geral, surge a Justiça Restaurativa como uma alternativa para solucionar tais problemas e como elemento de concretização do Estado Democrático Constitucional. A Constituição Federal de 1988 representa o símbolo maior do processo de democratização e de constitucionalização nacional. O Princípio da Dignidade da Pessoa contida no texto constitucional consiste num dos principais fundamentos da República Federativa do Brasil, funcionando como respaldo aos direitos e garantias fundamentais do cidadão, sobretudo na seara criminal. A partir do processo de constitucionalização nacional, ocorre uma releitura das legislações infra-constitucionais, que passam a ser interpretadas de acordo com o texto constitucional. Atualmente, a conjuntura jurídico-penal pátria está associada à ideia de garantismo, ligada ao conceito de Estado Democrático Constitucional. Apresenta-se a Justiça Restaurativa como um novo modelo de Justiça Penal, mais flexível e humanizado, visando além da aplicação da pena imposta pelo Estado, superar uma situação de conflito, na busca por resultados positivos no combate e redução da criminalidade, a satisfação da vítima e a mudança da cultura de violência, compatível com as diretrizes do Estado Democrático Constitucional. A partir da análise do direito internacional e de projetos e legislações nacionais envolvendo a Justiça Restaurativa, percebe-se a eficácia das medidas restaurativas na solução de conflitos dentro do Processo Penal, além da satisfação da vítima, do infrator e de familiares na participação dos encontros restaurativos, constituindo ferramenta de satisfação da dignidade humana, dentro de uma perspectiva humanista e garantista

A cidadania no contexto do estado constitucional democrático de direito brasileiro

The citizenship is a fundamental category to the democratic progress and the development and concretization of human rights, in addition to being one of the essential foundations of democratic contextualized in the rule of law of the Federative Republic of Brazil. That’s exactly why the discussion about its concept and content is a paramount requirement to the understanding and interpretation-application-concretization of the Federal Constitution of 1988, as well as its democracy, since there is no democracy without citizenship. That is why the general objective of the research is to determine the characteristics of the citizenship, relating it to the Law, as well as to discuss (critically) its inclusion in the list of fundamental rights and delimitate the scope of protection and the limits of this right, in the context of Brazilian law post-1988 Constitution. The specific objectives are: a) to analyze the concept of citizenship, its extent and scope, contextualizing it historically; b) to examine the evolution of the legal and regulatory treatment of the citizenship in Brazilian constitutions, focusing on the 1988 Constitution; c) assess whether citizenship can be considered a fundamental right; d) to investigate which implications, theoretical and practical, of assignment fundamentality character to the right to citizenship. This research identifies and deconstructs current conceptual confusions, such as the lack of distinction between citizenship and nationality; citizenship and electoral capacity; citizenship and person. It also helps to identify and oppose the generalizations, as well as the excessively abstract associations which tend to purely metaphysical understandings, fluid and empty of any content. The main virtue, however, is the proposed of understanding of the citizenship as a fundamental right and the examination of the relationship between citizenship and human dignity. In this context, citizenship appears as a corollary of human dignity and it goes beyond. This (human dignity) requires equality, non-arbitraries, non-excessive, disproportionate or unreasonable impositions affecting their freedom rights, and, yet, doesn’t affect a minimum core of possibilities of have to a decent life, in conditions of freedom and self-conformation involved in the necessary consideration of the individual as a subject. All of this requires a decision-making process, molded by the citizenship, which reaches the entire development process of possible state interventions, to ensure the person as a subject, the right holder and the objective point of reference of the juridical relations. Thus, the citizenship represents a substantial and beneficial addition to the human dignity, since the emancipated citizen is a person, formally and materially, qualified, to be able to build their own and collectively organized history, to participate effectively in the making processes decision juridical and social

Os limites constitucionais ao exercício de direito de patente e seus reflexos na indústria do petróleo, gás natural e biocombustíveis

This dissertation deals with the constitutional limits on the exercise of patent rights and its effects on the oil, natural gas and biofuels. Held with the support of ANP / PETROBRAS, It seeks to show how the law will limit the exercise of industrial property, based on a reinterpretation of private law by the constitutional development perspective . Today it is a fact that Petrobras, a Brazilian joint venture, has the latest technology in various sectors of the oil industry, and is one of the highest investments in developing new technologies. The overall objective of this thesis is to establish the relationship between the public interest of the Petroleum Industry, Natural Gas and Biofuels and constitutional limits to the free exercise of patent rights, then confirm or refute our hypothesis that Article 71 on Industrial Property Law is contrary to the existing objectives in Article 3 of the Constitution of the Federative Republic of Brazil. The research aims to examine the relevant aspects of the legal nature attributed to IPGN constitutionally confronting the constitutional limits on the free exercise of patent rights, with the purpose to outline the state of the performance limits in the regulation of the economy, in particular the application of feasibility limitations on the right of property in favor of national interest on the strategic energy industry. The aim is to confront the fundamental rights to property and economic development, against the public interest, limiting these first. As to the objectives, the research will be theoretical and descriptive and harvest of industrial property, respect the possible impact of regulatory standards and limiting the right of ownership in the oil industry. To establish how the state will mitigate the intellectual property right, we discuss, at first, a definition of public interest from the general theory of state and sovereign character in order to establish a new concept of national interest and popular interest, which will in turn the definition of our concept of public interest. In the second phase, will be addressed the issue of industrial property rights and how to will be free exercise thereof, in the constitutional sphere, infra, and demonstrating the use of industrial property rights with examples of market and IPGN . After situating the industrial property rights in the constitution and national legislation, establish their relationship with the national and regional development, will be addressed in this chapter in particular the patent law, as most usual form of intellectual property protection in IPGN. Used a study highlighting the number of patents in the area of the analyzed industry, demonstrating with hard data the importance of a sector for industrial development. The relationship between the social function of intellectual property and the constitutional objective of development was characterized to demonstrate the strategic nature of oil to Brazil in the national and international scene, and put into question the hypothesis of the research which provides that even with large investments the lack of legal certainty in the sector turns out not to have a considerable volume of investment as it could.