Efetivação da garantia de defesa no estado constitucional de direito: colisão entre o poder punitivo e garantia de defesa

The domination of the violence for the Rule of law awakened a tension between the practice of the punitive power and the right to counsel. However, throughout the recent history of the Criminal law, this shock of forces has been determined for the punitive power. In this perspective, the present work intends to submit the guarantee of defense to a critical judgment, in search to conciliate its content to the Constitutional State of Right. For in such a way, it will be necessary to recognize the disequilibrium of the situation, but without considering the superiority of any of these elements. The State in such a way must fulfill the function to punish the culprits as to acquit the innocents. Despite the law is far from obtaining a harmonious speech, it is necessary that the defense guarantee coexists the punitive power as part of an only public interest, which is, to make criminal justice. In such a way, the existence of a sustainable balance between the punitive power and the guarantee of defense depend on the minimum interference of Criminal law and, also, of the judicial position in the concrete case. The present work faces, therefore, the moment of crisis of the Criminal law, consolidated with the advent of a new way of thinking according to the procedural guarantees, that will demand the overcoming of the old concepts. The Constitutional State of Right not only constitutes an efectiveness of the regime of the right to counsel, but in a similar way it searchs to accomplish the right of action and criminal justice as a whole. Knowing that the philosophy of the language raises doubts on the certainty, the truth and the judgement, it is imposed to understand that the defense guarantee is no more about a simple idea, but, in the crooked ways of the communication, we intend to find what the judge s function is when he faces this new reality

O direito à saúde: a medida do dever do estado de fornecer Medicamentos de dispensação excepcional à sociedade sob a ótica do desenvolvimento

It is a fact that the fundamental rights of citizens are being recognized and guaranteed by the state over time, regardless of the belief that if these rights has always been part of the heritage of subjective individuals, or whether they will be aggregated during the course of human history. In that, emerged the rights of freedom of men and, subsequently, the rights to create a situation of equality between the humans, the so-called social rights. In turn, as these rights known as social, to be implemented, need a positive action by the state, more precisely by the state power whose function is to manage public money and create policies for implementation of fundamental rights. Given this, pay attention to the right to health, was created the Programa de Medicamentos de Dispensação Excepcional, which aims to provide high-cost medicines to citizens Brazilian carriers of serious diseases, such as Alzheimer's and Mal Hepatitis C. Also on the program, it provides a way which will be mandatory that the drugs will be offered in such situations, and does not include a means of updating the list predicted able to monitor the progress of medicine that have been in the interest of the program. Given that, at present it is necessary to mention the recognition of another fundamental right: the right to development, which is the right of access to positive actions being implemented by the State, which are nothing more than public policy, gender which the Programa de Medicamentos de Dispensação Excepcional is kind. Thus, through the search in legislation and doctrine in relation to the theme, this work has the aim to examine the extent of the state to provide exceptional dispensing of medicines. Specifically, if the State in attention to the right to development and the implementation of the right to health, can really list exhaustively the drugs to be provided by the State, and what are the elements guiding this choice and how to control the same

O desenvolvimento sustentável na ordem constitucional e sua promoção através do planejamento urbano

The man, being subject and object of their changes, has passed by many process to find a better life way. Since your existence, he finds to live in groups for make easy your life and make concrete yours desires. All by history, when the individual´s rights was establishment, collectives and lonely way, contribute for evaluate the relationship between individuals and they own, and them and state, which has a duty to those, positive or negative, depending on the case. The circle of fundamentals rights has been sustainable development and the concept of growth economy associated to the environment protection. This association reflect a apparent conflict between values very distinct, but the constitutional interpretation can be reunite both of them and make it live in harmony; values of environmental order and economical order can be exist together, as long as the state contribute to this. On the city, where the most of relationships happening, the urban plan appear how a effective way of sustainable development, finding the harmony between the growth economy and environment protection. To effective the socials functions of the city (inhabit, circulate, work and entertainment) and the citizen´s life quality, the city is the scenery that show how the urban plan, across established previously legal instruments, like the governmental public politics, to effective the right to development, right of third generation. The director plan how effective tool for local needs - obligation defined by Citizen Statute that contribute for the program linked defined by the urban plan. The state´s intervention on the private sector of citizen, and the restriction on their rights are be justified by the collective´s rights and their quality of life. So, in front the urban scenery has been the plan to make social functions of city, the healthy way of life, which is the sustainable development

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

Animais não humanos: a construção da titularidade jurídica como novos sujeitos de direito

This work has the main goal on the recognition of the inherent value of nonhuman animals, under the constitutional framework. It is presented the main philosophical formulations of the current pattern of behavior that rules the relationship between man and animals: first those that have excluded animals from moral consideration and then the thinkers which do have included, in some way, in order to elucidate the origin of the anthropocentric thought over the natural world. In this way, the analysis these thinkers that have included animals in moral consideration will contribute to a paradigm change from the anthropocentric view, initiating legal debates. It will be made a simplified analysis of different philosophical and legal points of view that have been demonstrating the posture in which the human beings have been dealing with the environment, with the replacement of the anthropocentric thinking for the biocentric view, in which life becomes the center of existence. Life is life, no matter whether it is human or not, has a value in itself, and must be protected and respected by the legal system. Then, it will be analized the constitutionalization of the nonhuman animal dignity in comparative law; the infraconstitutional legislation which concerning the intrinsic value of all life forms and, finally, the 1988 Constitution. It will be advocated for non-human animals the condition of subjects, presenting some cases that the Habeas Corpus was used in animal defense. In this new Brazilian Habeas Corpus theory of for apes the argument of genetic proximity was used in order to overcome the literal meaning of natural person to achieve hominids in order to assure the fundamental right of physical freedom. It is realized that the fact that the great apes being recognized as a person does not preclude the possibility of other living beings be recognized as subjects of law. In this way, animals can be considered non-human subjects of law, according to the theory of depersonalized entities and may enjoy a legal category that allows a respect for existential minimum, and can hold constitutional fundamental rights

Análise do processo judicial eletrônico (PJe) sob os parâmetros da discursividade processual e do acesso democrático à justiça

The conceptions of the judicial function, the process and the factors of legitimacy of the norm of decision are changed according to the model of State (liberal, social democratic and constitutional). The right of access to justice, likewise, follows the ideals present in constitutional movements experienced in different historical moments. The deficit of legitimacy of the judiciary is recurring subject of study in the doctrine, especially in the face of democratic standards that permeate the current paradigm of state. Under the process law, the essential element for the distinction of the states based on the rule of law (formal and material) and the democratic constitutional state lies in the democratic guarantee of participation to the litigants in the process of elaborating the norm of decision. The concern about the participatory democracy and the concretion of fundamental rights has as presupposition the conception of popular sovereignty. Keeping this effort in mind, the civil procedure cannot be oblivious to such considerations, especially when it justifies its constitutional conformation from the institutionalization of discourse within the procedural field (democratic principle) and of the democratization of access to justice, leading to the necessary contestation of the theory of instrumentality of the process. The democratic prospects of civil procedure and the concern about the legitimacy of the rule of decision cannot be moved away from the analysis of the judicial function and the elements that influence the legal suit s progress. The computerization of the judicial process entails extensive modification in the way the judicial function is developed, in view of automation of activities held, of the eliminating of bureaucratic tasks, manual and repetitive, and of streamlining the procedure. The objective of this study is to analyze the dogmatic changes and resulting practices from the implementation of the Judicial Electronic Process (JEP), prepared by the National Council of Justice, under the parameters of procedural discourse and democratic access to justice. Two hypotheses are raised, which, based on a bibliographic-documentary, applied and exploratory research, are contested dialectically. The expansion of publicity of procedural acts and the facilitating of communication and practice of such acts are elements that contribute to the effective participation of the recipients of the norm of decision in its making process and, therefore, the democratic principle in the procedural field. Ensuring access (to the parts) to the case files and reasonable duration of the process along with the preservation of its founding principles (contradictory, legal defense and isonomy) are essential to ensure democratic access to justice within the virtual system

Infâncias :o lugar do lúdico nas tramas do trabalho infantil

Considering infancy as the socio-historic construction required from the researcher, not only gives problems to the natural character of the human development, that for a long period in the history of psychology has sown to be predominant, but before anything assumes the position in which the vision of the social condition, i.e., for the contexts of the insertion of the human being, is predominant. In this sense, it is not possible to talk about infancy in the singular, once the different developmental contexts enable different forms of immersion in the daily experiences, amongst which this research focuses on the experience of the ludic. According to various theories of development amongst which we emphasize the socio-historic, this element brings important contributions in the processes of the human being constitution. From the legal aspect this recognition is present in the Code of Practice of the Child and Adolescent which considers playing to be a right of the child. However, the childhood of many children have this aspect affected by many factors. It is in the context of this discussion that we developed this research which has as its objective investigate how children in a working environment experience playing on a daily basis. Four children, girls, took part in this research, who develop activities in the process of the usage of cashew nuts. We used interviews, observations, photographs and drawings. The perspective of analysis which guided this task is based on socio-historic and discursive studies. In this way, the elements which constitute the child s discourse, formed from the corpus were: be a child, the ludic culture, the work in the child s life and the perspective of future and change. The participants discourse showed to be conflicting, contradictory, arisen from a specific ideological formation. In the children s daily routine it was possible to verify that there is an existence of a rich ludic culture, even if it is lived in few moments of the day in consequence of the workload

Turismo, capital social e produção do espaço: uma leitura a partir do município de Natal/RN no período de 1980 a 2012

Nowadays, there is a tourism phase in the city of Natal/RN called internationalization of tourism , which shows a tourism model with a planning and an administration, based on the needs of the visitors. Such process shows that the production as well as the reproduction of the city spaces with the goal of favor tourism excludes of its composition the effective participation of local subjects. Thus, the research is a result of the perception of tourism as an activity with a meaningful power of transformation of the social and natural space taking into account the low participation of the residents in the decisions of the tourism activities in the city of Natal/RN. Despite that reality, it is possible to note Natal that civil society, starts to mobilize its citizens trying to develop collective actions to low the negative impacts caused by the bad planning as wells not efficient tourism administration, trying to put in action the right of the local population to take part in the decisions of the city activities. Having this panorama as background, this paper aims at investigating in which way the mobilizing action of the social capital in Natal has contributed to change the spatial production which is part of the process of expansion of tourism in Natal/RN? The research presents a temporal picture which starts in the year of 1980, when occurs the first effective state intervention aiming to develop tourism in the capital, taking into account an analysis of 2012. Concerning the spatial picture, the research investigates the beaches of Natal which concentrates criteria and actions such as: visitation, tourism appeal and focus of investments, highlighting the following beaches: Ponta Negra, Areia Preta, Praia dos Artistas, Praia do Meio, Praia do Forte and Redinha. This study is of a descriptive and exploratory nature concerning its goals. With respect to the treatment of its object it is a qualitative research. The data was collected through structural interviews, with open questions. Regarding the methodological choices, it was used the content analysis proposed as well as the collective discursive subject methodology. The results show that there´s not yet in Natal a meaningful social capital related to tourism, capable to change the spatial production related to the activity. It should be stressed that Natal social capital presents difficulties concerning the incentive to trust, spontaneous cooperation and the civic participation, which are the foundation for the development of an effective social capital, which makes it harder for a more expressive articulation in the reality in Natal/RN. It should be stressed, as an answer to the research questions, that tourism in Natal/RN is represented by social and spatial segregation. In other words it emphasizes mainly the action of hegemonic agents (State and market), leaving little room for the participation of society. It can be noticed that the actions related to tourism in Natal keeps the popular participation out of the way. Thus, it can be said that the social capital in Natal/RN does not yet contribute to a more fair spatial production related to the expansion of the tourism as well as the well being of the population of Natal/RN. In conclusion, it should be taken into account that this participation do exists but not in a meaningful way. In other words, it´s not enough yet to cause meaningful changes in the actions which tourism needs nowadays in Natal/RN

Avaliação da atenção humanizada ao abortamento em maternidade-escola, em Natal, Rio Grande do Norte

Unplanned pregnancy is experienced by millions of women worldwide. Such fact increases the risk of abortion-related morbimortality, which represents a serious public health problem. This study aims to evaluate the advances and challenges of the implementation of Humanized Abortion Care at the Maternity-School in Natal, state of Rio Grande do Norte. The research was evaluative, was preceded by an Evaluative Study, and resulted in a Case Study. The intentional sample totaled 102 subjects (60 users, 39 professionals and 3 managers). The collection techniques included documental analysis, semi-structured interview and observation with a field diary. The documental analysis was descriptive, while the Content Analysis by Bardin was used for semi-structured interviews and field diary. The Evaluative Study observed that Humanized Abortion Care is an evaluative program with preparation and pact of the logical model, of the matrix of indicators and evaluative questions. The Case Study showed that users were satisfied with the problem-solving capacity and access to the service; however, is also showed that they pointed out inadequacy in terms of environment, qualified hearing and reproductive planning. Professionals reported that the inefficiency of service consists of infrastructure and environment, which are considered inefficient and inadequate to humanized care, especially regarding patient accommodation, the lack of hospital beds, the reduced number of rooms in the surgical center and the lack of laboratory inside the maternity. Moreover, reproductive planning does not consist of an institutionalized practice in the service, and integrality with other services or partnership with the community is not in place. The Maternity Board emphasizes that the excessive demand of patients is one of the reasons that hinders the appropriate implementation of the technical standard. We then conclude that although satisfied regarding problem-solving capacity in terms of service and ease of access, there is room for improvement in qualified hearing systems, in the creation of a system to promote team work, implementation of ombudsman and satisfaction surveys. The right of shared choice did not prevail among users and health professionals with regard to the option of uterine evacuation procedure. Environment was the most mentioned category as that requiring more changes, seeing as a limited factor for the development of humanized and welcoming practices. Health professionals do not establish a periodic routine of planning practices, and such practices are not aligned with the Technical Standard. Incorporation of guidelines and availability of a plurality of methods and possibilities of choices for family planning are required. There is no institutionalization of reference and counter-reference, or partnerships with the community, which makes integrality of care not viable. The Standard needs to be included in the action plans of managers as one of the priorities in the construction of care strategies for women's health, in order to enable, allied to other initiatives, the real integration among safe conduct service, primary care network and social organizations. As a result, respect for human rights and adequate humanized care, as a way of attention and prevention of abortion, can be secured.

Território para viver: dinâmicas territoriais da comunidade quilombola de Acauã, Poço Branco, Rio Grande do Norte

In the late 1980s, the quilombola (or maroon) communities emerged on the Brazilian public scene. They established themselves as new collective subjects and ethnic groups, in a historical moment of sensitive political changes in several social conflicts and struggles, both in Brazil and in Latin America. Because of their socio-cultural and historical singularities, these communities have self-identified in the same collective expression and have organized in search of recognition and respect for their rights. Quilombo communities and other self-labeled as "traditional communities" seek to reaffirm their differences in opposition to a conscious colonizer cultural project and re-signify their memories and traditions, that serve as reference in the construction of alternative production projects and community organization. One of the distinguishing characteristics of this quilombola political emergence process is the territorial nature of the struggles, manifested in at least two directions: on the one hand, the struggle for legal and formal recognition of a given space, i.e., the regularization and titling of occupied territories, considering that the Brazilian Constitution of 1988 recognizes the right of these communities to the final possession of the traditional lands. On the other hand, the struggle for recognition of their territoriality in a broader sense, not necessarily restricted to the demarcated area, but as the recognition of a culture and its own way of life, that originated historically in these territories. The current accomplishments and challenges of the Brazilian quilombola communities are well exemplified by the quilombo of Acauã, in the Poço Branco municipality of Rio Grande do Norte. The last fifteen years have been marked by important changes in this community, which has gained visibility and has emerged as a new political player. Acauã identified itself as quilombola community in 2004, the same year that it formalized its political structure, through the creation of the Association of Residents of Quilombo Acauã (AMQA, in Portuguese). Also in 2004, it requested to the National Institute of Colonization and Land Reform (INCRA, in Portuguese) the opening of the process for regularization and titling of quilombo territory, which is at an advanced stage, but so far without definitive resolution. This study aims to understand the process of territorialization (struggle for territorial claim) played in the last fifteen years by the community of Acauã.

Cara e coroa: O PRONAF B e os impactos na ocupação rural do município de Ceará-Mirim

The present work deals with study on the National Program of Reinforcement of Familiar Agriculture, Group B, referring it offers of agricultural credit the agriculturists who possess familiar prescription until R$ 2,000, 00, and its impact in the agricultural occupation of the city of Ceará-Mirim. From theoretical referencial regarding the agricultural occupation, it collects of data, application of questionnaires between the beneficiaries of PRONAF B and interviews with the involved actors, it was made possible ascertainment of the hypothesis of that the program in this modality of credit, is capable to provide only to the maintenance or diversification of the occupation in the familiar unit and not it generation of remunerated occupation not familiar. This research disclosed to the diverse possibilities of use of the credit and its impact in the agricultural occupation, exactly when it is deviated for other purposes not waked up next to the financial institution, generating impacts not waited, however positive. When destined to the waked up end, still new forms appear of way occupation to complement it the deriving familiar prescription of the main activity. Unable to discard the rise even though very small and informal, non-family gainful occupation. The knowledge is added of that exactly ahead of the easinesses of access to the social base of the program, many familiar agriculturists still find difficulties in the approval of the which had credit, on the other hand, the requirements of the financial institutions

Direitos humanos e dilemas da democracia no Brasil: um estudo sociológico do trabalho policial (1985-2009)

According to the Public National Security Plan, the security is "[ ] a right by democratic excellence legitimately desired by all sectors of society, which is the fundamental right of citizenship, obligation of the constitutional state and responsibility of each one of us." The 1988 Constitution recognized the rights of life, liberty and personal integrity, considered torture and racial discrimination as crimes. The prime directive of the National Security and Citizenship (Law No. 11,707 of June 19, 2008 - PRONASCI-Brazil) expresses the commitment of the Brazilian state with the promotion of human rights. But despite this formal recognition, official violence continues to be used as a means of maintaining social order, consolidating a police action violating human rights (Amnesty International report "They go in shooting" - AI Index: AMR 19/025/2005) . This thesis analyzes the police work combined with the extension of citizenship rights, the spaces of freedom and democracy as a measure for the degree of affirmation or denial of the Human Rights in Brazil, and proposes the construction of a human friendly Police Force (Post - Colonial, Post-Abyss, Intercultural and Democratic)

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

O direito à informação jornalística: garantias constitucionais ao direito de ser informado no sistema brasileiro.

The freedom of social communication referred to those freedoms exercised under of the media. The journalism is professional activity responsible for factual information, real, pluralistic and of the public interest, directed diffusely to social orientation. The right of the information, characterized as diffuse right or of fruition by uncertain and numerous holders, is subdivided in the right of the inform, inform yourself and right to be informed. The journalists, as occupants of a enlarged spectrum concerning of right of the inform, have responsibility for the information they disseminate, devoir that puts on the basis of the constitutional right to be informed. This duty is divided with journalistic companies, when them realized. In the research, examined the existence of constitutional guarantees the right to be informed. To answer the question, realized research to support bibliographical and documentary. The guaranty is a empirical preoccupation coated with legality, since lends itself effect concretize a right. Traced so a panel of guarantees of institutional imprint, substantive and procedural. Treating of the institutional guarantees the right to information, it would refer to true institutions (as the free press) and may begin subjective rights. In the case of substantial guarantees, we would have access to information, the confidentiality of the fonts and the incensurable feature of journalistic information. A guarantee peculiar would be constitution of bodies responsible for monitoring the quality of the vehicles of communication. Trace it also a panel strict of procedural safeguards, such as public civil action, the security s warrant, and the rights of petition and answer.

O direito social fundamental de acesso à energia elétrica e a atuação estatal

Electrical energy today is an essential element in the life of any human being. Through the access to electrical energy it is possible to enjoy dignified conditions of life, having in mind the possibility of making use of minimal material conditions of life. The lack of access to electricity is directly linked to poverty and degrading conditions of life, in which are some communities in Brazil, especially the more isolated from urban centers. Access to the electric service is a determining factor for the preservation of human dignity, constitutional principle inscribe in the art.1 of the Federal Constitution, and the promotion of development, being a right of everyone and a duty of the State to promote universal access. For that reason, focuses mainly on the analysis of their setting as a fundamental social right and its importance for national development. For this, the theoretical and descriptive method was used, with normative and literary analysis, in particular the Constitution of 1988. This study also discusses the form of action of the State in the energy sector, to give effect to the fundamental social right of access to electricity, the characteristics of public service and the principles that guide it, in addition to the role of public policies in universalization of access, in particular the analysis of the Program Luz para Todos, and the function of regulation in the implementation of these policies and the provision of adequate public services.