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

Paradigma constitucional brasileiro da livre concorrência e da defesa do consumidor face às estruturas de poder no mercado

The Federal Constitution of 1988, when taking care of the economical order, denotes special concern in the abuses of the economical power and the disloyal competition. The mark to mediate of all this is, in fact, the defense and the consumer's protection, once this is final addressee of whatever if it puts at the consumption market. The coming of the Law 8.078/90, Code of Protection and Defense of the Consumer, inaugurates a time of effective concern with the homogeneous individual interests originating from of the consumption relationships. In this point, the focus of main to face of the present work lives, in other words, the protection of the right to the individual property, especially manifests in the exercise of the trade freedom that keeps direct relationship with the respective social function the one that is destined. The code of the consumer's defense doesn't just take care of this, but also of the other star of the relationships of the consumption. When affirming in the interruption VI of the art. 4th that the national politics of those relationships, finds ballast in the prohibition and repression efficient of all of the abuses committed in the consumption relationships, keeping inherent relationship-causality in the economical order, sculpted for the article 170 in the Constitution of 1988. In the generic plan, the mark of the present work is to question concerning the limits of the trade freedom and previsible collisions with protection norms and the consumer's defense, as well as factual convergences of those small systems, especially in what he/she refers to the innate interests to the suppliers. In the specific plan, we aspirated to identify the protection device-commands to the actors of the trade relationship, capable to guarantee the free competition in a global economy of market, seeking especially the Well-being, for soon afterwards, in an analytical perspective, to discover the possible applications that it holds the Federal Constitution, in headquarters of economical freedoms. It was observed that the consumer today doesn't need only of laws that their needs, fruit of the vulnerability that it is him/her meditate innate. He/she lacks, yes, of effective mechanisms that prevent lesions that can be them impinged by the suppliers at the time in that you/they are useful to repair the damages when happened, punishing the author of the damage

O poder legislativo na verificação da legitimidade constitucional do processo de construção das leis

It is known that, in the Democratic State of Law paradigm, one of the most instigating themes is the legitimity of the Law. It justifies the interest in reflecting about the Legislative Process instituted by the Brasilian 1988 Constitution, more specifically field of the constitutionality control as away to guaranty of the legitimity of the Law. The research that is developed here, intents to bring to reflection the basis and the ways the Legislative Power has to proceed to Constitutionality Control of the laws and of the Legislative Process. As the focus taken here is about the Legislative Power, it starts from the presupposed that only by the adoption of legislative process which has to be connected to a rational speech, that will evidence the Democratic and Procedimental Law dimensions, guarantee the possibility of the public and private spheres of life act in complementarity that is such needed to the stabilization of the social expectatives and the concretization of the Brazilian Constitution

A missão política do Supremo Tribunal Federal: análise de sua importância como corte constitucional para o controle do poder no Brasil

The following study proposes an analysis of the politic process which the brazilian constitutional justice faces, emphasizing the Supremo Tribunal Federal . For that purpose, we start by examining the intimate relationship between Politics and Law, in view of the most recent social systems theories, so that the political system is distinguished by the exclusiveness of using the physical force, intending to make coletive tying decisions, and the juridical system as a congruent generalization of the expectations towards the rules and principles, brought together under an interdependence by which both gather legitimacy and effectiveness. In this manner we can notice the political effects of the constitutional interpretation conducted by Judges as well as by other juridical professionals, because these ones decrease the overload of expectations which are pointed to the Judicature. Constitutional interpretation is democratized since the participative democracy arises and stablishes a permanent state of awareness around the exercise of power and favours the preservation of the pluralism (counter-majoritary principle) where we can find the origin of the democratic nature of constitutional courts, once, in most cases, their members are not elected by the people. After that, we analyse the historical posture of the Supremo Tribunal Federal as a constitutional court in Brazil, so we can realize the attempts to make it vulnerable to the appeals of governability and economical aims, agains which this court somehow has resisted, stressing its particularities. At the end, it s concluded that even the so-called acts of government, whose judiciary control is mostly repelled, are subjected to a constitutional analysis, last frontier to be explored by the Supremo Tribunal Federal in its role of exposing our republican Constitution

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

Políticas públicas para o turismo e desenvolvimento local: reflexões a partir dos "caminhos de fé" no semi-árido potiguar

This study analyzes the event of the Feast of Our Lady of Grace, located in the municipality of Florania / RN as a tourism product, inserted in a process of transformation of a sacred place, in principle determined by religious motives, in a destination "tourist-religious". We seek to understand to what extent state intervention, with policies aimed at boosting the tourism sector as well as the interactions among key actors in the space, are able to modify and streamline the city of Florania, particularly Feast of Our Lady of Grace. The methodology also includes the review of the literature using the deductive method the application of questionnaires to the pilgrims, tourists and pilgrims totaling 150 questionnaires. Along with the economic agents of the municipality, 36 questionnaires were administered according to the model adopted by REDESIST. Complement this research interviews with key Officials of the Municipal Government and the Church. Despite the recognition by the actors of the importance of tourism to the economy of the city of Florania, encouraging the development of the sector is still lagging, some worked and policies / programs listed actually pass by the "Paths of Faith" of Florania. Concerning the Feast of Our Lady of Grace, the bottlenecks reported by researchers and economic agents are very partially affected by the policies / programs and when this occurs, the effort seems to be only reactive, resulting from the pressures experienced by the municipal government (mayor)

Poder poluente de águas residuárias de suinocultura após utilização de um tratamento integrado

Em experimento de campo, avaliou-se o potencial de impacto ambiental de águas residuárias de suinocultura, acondicionadas em um tanque de estocagem, com distintos tempos de retenção hidráulica e aplicadas, posteriormente, em lisímetros preenchidos com solos arenosos, argilosos e de texturas médias. Para tal, foram determinados os valores de pH nos solos e as quantificações das concentrações de zinco e cobre na água residuária in natura e, após os quatro tempos de retenção hidráulica do tanque de estocagem, nos percolados dos lisímetros e nos solos. Os resultados mostram que a estocagem não foi eficiente na redução, aos níveis exigidos pela legislação, das concentrações de zinco e cobre nos efluentes do tanque de estocagem. A aplicação no solo gerou reduções eficientes nas concentrações de zinco e cobre. Por fim, enfocando a contribuição fertilizante destas águas residuárias, o solo argiloso foi o mais beneficiado com este sistema integrado de tratamento, contribuindo para a redução das concentrações de zinco e cobre para valores abaixo dos permitidos pelas legislações, o que protegeria o lençol freático da contaminação por esses dois metais pesados.

Beleza e poder na Ginástica Rítmica: reflexões para a educação física

La beauté dans la Gymnastique Rythmique (GR) s est esquissée comme condition de son existence. Pour son analyse, nous avons eu recourt au discours sur le pouvoir de Foucault (1971, 1979, 1987, 1988, 1997, 2003) et à sa relation avec la production de savoirs. Basés sur cette compréhension, nous avons réfléchi sur les relations de pouvoir dans la GR qui se sont établies et consolidées grâce à la réglementation de sa pratique, dans lequel le Code de Pointage a un rôle prépondérant. Ainsi, la GR a construit sa beauté à travers les temps au moyen de jeux de force où la gestualité de corps performatiques, à travers la discipline, a été prépondérant. Cette dernière a configuré des sens attelés à la coercition-résistence des corps: la production de discours. C est en pensant à une beauté comme ume trame de discours construits par ces relations de pouvoir-savoir des investissements du corps dans la Gymanstique Rythmique que nous nous posons les questions: Comment le Code de Pointage réglemente la gymanstique rythmique et sportive au sujet de la construction de la beauté ? Quelle est la relation entre les pouvoirs et les savoirs impliqués dans cette réglementation ? Nous avons donc pour objectifs de rechercher la beauté dans la Gymnastique Rythmique comme savoir produit à partir des relations du pouvoir circonscrites dans les règles de la modalité et de discuter la beauté à partir de la relation pouvoir/savoir comme réflexion pour le milieu de l éducation physique. Nous avons utilisé comme méthodologie la technique de l analyse de contenu (Bardin, 1977) afin d analyser le Code de Pointage de la GR dans sa version 2005-2008. Nous avons également fait usage des images de gymnastes comme moyen analogique pour amplifier le sens des discussions. La lecture fluctuante nous a permis de sélectionner des unités significatives et d organiser nos discussions en trois axes thématiques qui composent le premier chapitre intitulé « La beauté réglementée ». Dans ce chapitre, nous discutons les spécificités de la GR, la prescription de l utilisation du temps et de l espace et la configuration du geste technique à partir de l analyse de son code de ponctuation. Dans le deuxième chapitre, « Le corps beau transcende la règle », nous réalisons quelques réflexions destinées à l éducation physique à partir de la discussion du chapitre antérieur en prenant pour cible trois sujets : Pouvoirs et Savoirs, Technique et Style, Beauté et Éducation. Nous avons ainsi constaté que la beauté de la Gymnastique Rythmique contemporaine est entourée par sa réglementation, mais a été et continue à être dessinée par des mécanismes de pouvoir-savoir tout au long de sa trajectoire historique. Malgré l existence de conditions pour la beauté dans le Code de Pointage de la GR, il existe la possibilité de la création du propre style par la gymnaste, par la possibilité de vivre l improvisé et l imprévu, de sensibiliser le public, parce que le pouvoir crée des savoirs et le corps, qui se dépasse, créera toujours de nouvelles formes d être beau. La constatation que le Code de Pointage produit une beauté et que la gymnaste la reconstruit continuellement en en réactualisant les règles est une réflexion importante pour l éducation physique: elle réaffirme que le corps n est jamais seulement soumis, que même dans la soumission il est capable de produir du savoir, d être beau et de créer de nouveaux sens pour la Culture de Mouvements

Educação ambiental: mediações sociais e políticas e a indolência do Poder Público à sua inclusão no ensino formal

As a result of the prediction of irreversible changes on necessary conditions to maintain life, including human, on the planet, environmental education got the spotlight in the political scenario, due to social pressure for the development of individual and collective values, knowledge, skills, attitudes and competences towards environmental preservation. In Brazil, only in 1999 the right for environmental education was officially granted to people, having the status of essential and permanent component in the country s education. Since then, it has been Government s duty, in each federal branch, to plan actions to make it happen, in an articulate way in all levels and modalities of the education process, both formally and informally. This work of research has environmental education in the school as subject matter, and aims on analyzing social and political mediations established between this National Environmental Education policy and the contexts associated to the legislative production process, the political nature of the conceptions about environmental education that underlie Law 9.795/99 (Brazil, 2009c) and also Rio Grande do Norte Government s actions and omissions related to the imperative nature of the insertion of environmental education in the schools ran by the state, during the ten years this law has been in force. The investigation of the subject matter was led by a social and historical understanding of the social and environmental phenomena, as well as of the education system as a whole, considering that only through a dialectical view we can see the real world, by destroying the pseudo-concreteness that surrounds the topic. While analyzing, we assumed that in face of the dominance of a social organization in which market regulations rule on environmental ones, by developing individual and collective critical conscience, environmental education can become a threat to dominant economical interests in exploiting natural resources. The results of this research suggest that as an educational practice to be developed in an integrated, continuous and permanent fashion in all levels and modalities of formal education, environmental education has not yet come to pass in the state of Rio Grande do Norte, due to the neglect and disrespect of the government when facing the need of promoting the necessary and legally appointed measures to make it present in the basic education provided by the state. The legislators silence when it comes to approving a regulation on environmental education essential to define policies, rules and criteria to teaching the subject in the state and the omission from the public administration regarding critical actions in order to integrate in public schools the activities related to the National Environmental Education Policy, represent a political decision for not doing anything, despite the legal demand for an active position. This neglecting attitude for the actualizing of strategically concrete actions, urgent and properly planned for the implementation of environmental education in schools in a multidisciplinary way, exposes the lack of interest the predominant classes have in such kind of education being made available, as it could be developed based on a critic political view, becoming a political and educational action against dominance. When analyzing the basic principles and fundamental goals in Law 9.795/99 (Brazil, 2009c) the development of a critic environmental education is really possible and concurs with the National Environmental Education Policy, reflecting the social and political mediations established between this public policy and the contexts associated to its legislative production process, which are responsible for approving a regulation which also represents the mind of the people about environmental protection above anything else

As relações de poder na gestão da Escola Estadual Presidente Kennedy em Natal/RN: as ações decisórias dos órgãos colegiados - o conselho de escola e o caixa escolar

The present study examined the relations of power in the management of the Escola Estadual Presidente Kennedy, including the deliberate decisions on the School Council and School Fund, which guided the organization of the school. We sought to understand the management models that influenced the school organization, promoting contradictions in the decision making process. The school management is intensely marked by management models from the business logics as in the case of managerialism of bureaucracy. The formulation of educational policies based on managerialism has proposed a school-centered management with intense accountability of the school community in planning and monitoring the public services. The influences of these models subsidize hierarchical power relations that undermine the actions of decision-making of the collegiate bodies for the democratization of school management. To develop a research on the power, the investigation was based on studies of Bourdieu and Foucault. These authors understand the power in a relational system in a double sense, both in terms of discipline and the possibility of resistance. A theoreticalmethodological matrix was developed focusing on literature review, document analysis, structured interviews with twelve representatives of the segments belonging to the School Council and School Fund, as well as observations in meetings with the production of field notes. It was found that power relations experienced in the organization and activities of the school boards are marked by changes in public management over the years, promoting the contradictions between the concepts of corporate management originated in the business logics and the perspective of democratic management subsidized by official legislative documents at the national and state levels. The observations in meetings and analysis of the records showed that representatives related to management (president and manager of the school) have a privileged position with regard to exposure of their propositions, and are more likely to take a position in the political game of the collegiate bodies of work. It was also seen that the irregularity of meetings, particularly of the School Fund meetings, limits the experience of operation of the representatives in discussions concerning the planning and monitoring the actions of school management. Reports from representatives of the School Council showed that certain segments related to the management recognize their power of decision, however others have little interfere in the decision-making process in order to expound the desires of those who are represented by them. In the School Fund, the analysis of the records and interviews showed restricted moments of the meeting of representatives, and these only being aimed at choice or approval of the implementation plan prepared by the school management. The results showed no indications of moments of reflection to study the best chance for applicability of resources. This collegiate body (School Fund) has a questionable action when planning and monitoring the applicability of the financial resources of the School. To sum up, it was found that the Escola Estadual Presidente Kennedy still lives hierarchical power relations that undermine the institutionalization of democratic management in the various representative segments may take place in the game of political decision-making processes necessary for the organization of the school

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

A eficácia na execução do planejamento estratégico no poder judiciário do Rio Grande do Norte

This paper presents an analysis of the current strategic plan of the Judiciary of Rio Grande do Norte emphasizing the evaluation of strategic indicators verifying the effectiveness in implementation, since the implementation of the Balanced Scorecard as a tool for performance evaluation of strategic management. The research presents the strategy map and the evaluation indices of strategic performance reporting on the effectiveness. After literature review and documentary, is making the measurement of indicators that are treated from the standpoint of an exploratory and descriptive in strategic planning used by the judiciary Potiguar. The problem was evaluated qualitatively and quantitatively using statistical techniques for data analysis comparing them between Judiciaries of Brazilian States. With respect to data collection was used performance indicators extracted from the data of Justice in Numbers provided by CNJ the period from 2004 to 2011, and the information sought in the Sector Strategic Planning TJ / RN. The main results of this study are as follows: Acquisition of insight into what level is the strategic planning of the judiciary of Rio Grande do Norte and the evolution of its performance indicators comparing them with the states of RS, CE, SE and the National Judiciary

Municipalização da saúde no Brasil: diferenças regionais, poder do voto e estratégias de governo

Conselho Nacional de Desenvolvimento Científico e Tecnológico (CNPq)

Geografia do poder em goffman: vigilância e resistência, dominação e produção de subjetividade no hospital psiquiátrico

Neste artigo, estamos procurando recuperar alguns estudos de Goffman, lidos a partir das discussões atuais da análise institucional, das contribuições de Michel Foucault relativas à microfísica do poder e das investigações de alguns pesquisadores quanto à produção de subjetividade nas instituições de Saúde Coletiva. Goffman, apesar de não estar munido dos recursos teóricos de tais pesquisadores, já era capaz de explicitar em suas análises muito mais do que provavelmente imaginava articular. Acreditamos que Goffman já produz acuradas cartografias do dispositivo manicomial, descrevendo toda uma geografia do poder na instituição total, atento aos detalhes da rotina cotidiana. Suas investigações da dimensão intrainstitucional desses dispositivos continuam atuais e eficazes para a compreensão da produção da subjetividade no contexto institucional. Também encontramos muitas ressonâncias notáveis entre Goffman e Foucault.