A legitimidade democrática do Supremo Tribunal Federal: contribuições para a prática do ativismo judicial

Pós-graduação em Direito - FCHS

Interpretação conforme a constituição e declaração de inconstitucionalidade sem redução de texto: problemas da aplicação judicial do direito constitucional

O texto apresenta as principais características e controvérsias jurídicas sobre a declaração de inconstitucionalidade sem redução de texto e a interpretação conforme a Constituição. São analisadas as hipóteses de cabimento, seus efeitos processuais, assim como casos de sua aplicação jurisprudencial. Em paralelo, são analisadas criticamente divergências doutrinárias sobre a natureza desses institutos e seus efeitos processuais. O texto apresenta esclarecimentos conceituais acerca dos limites impostos na aplicação dessas técnicas e indica sua relevância para o exercício do controle judicial de constitucionalidade.

Evaluation of the relationship between education and sustainability in peasant movements: The experience of the National Education Program in Agrarian Reform

Brazil is one of the largest agricultural producers in the world. However, its agrarian composition is based on two markedly different production models, particularly in relation to sustainability: a peasant family agriculture, which plays an important role in food production for domestic consumption and advocates agro-ecological practises; and agribusiness, the politically and economically hegemonic model that produces commodities for export based on monoculture and intensive use of pesticides. Therefore, in order to create the means to develop peasant lands, social movements and peasants have engaged themselves politically and defended an education model grounded in sustainable practises of production and social organisation. Taking this into account, the main purpose of this paper is to analyse and assess the Brazilian experience of integration between education and sustainability, in the National Education Program in Agrarian Reform (PRONERA). To accomplish this aim, a survey with a semi-structured questionnaire was carried out among teachers, students, monitors, and coordinators of the course offered by PRONERA. The surveys showed that the courses are promoting the concepts of sustainability among peasants. However, many adjustments need to be taken into consideration during the planning process for the next courses offered by PRONERA.

Electroconvulsive Therapy in Brazil After the "Psychiatric Reform" A Public Health Problem-Example From a University Service

Objectives: The Brazilian public health system does not provide electroconvulsive therapy (ECT), which is limited to a few academic services. National mental health policies are against ECT. Our objectives were to analyze critically the public policies toward ECT and present the current situation using statistics from the Institute of Psychiatry of the University of Sao Paulo (IPq-HCFMUSP) and summary data from the other 13 ECT services identified in the country. Methods: Data regarding ECT treatment at the IPq-HCFMUSP were collected from January 2009 to June 2010 (demographical, number of sessions, and diagnoses). All the data were analyzed using SPSS 19, Epic Info 2000, and Excel. Results: During this period, 331 patients were treated at IPq-HCFMUSP: 221 (67%) were from Sao Paulo city, 50 (15.2%) from Sao Paulo's metropolitan area, 39 (11.8%) from Sao Paulo's countryside, and 20 (6.1%) from other states; 7352 ECT treatments were delivered-63.0% (4629) devoted entirely via the public health system (although not funded by the federal government); the main diagnoses were a mood disorder in 86.4% and schizophrenia in 7.3% of the cases. Conclusions: There is an important lack of public assistance for ECT, affecting mainly the poor and severely ill patients. The university services are overcrowded and cannot handle all the referrals. The authors press for changes in the mental health policies.

As súmulas vinculantes no Brasil e a necessidade de limites ao ativismo judicial

O Autor aborda que, a partir do fortalecimento da jurisdição constitucional, Constituição/1988, novas técnicas interpretativas serão permitidas, no intuito de ampliar a atuação jurisdicional em assuntos tradicionalmente de alçada dos Poderes Legislativo e Executivo.

Environmental management reform for sustainable farming, fisheries and aquaculture: state of the art review

FOOD-CT-2007-036298: AquAgriS. Project co-funded by the European Commission within the Sixth Framework (2002-2006)

Aspetti processuali del Regolamento n. 1/2003/Ce

The recent reform in European antitrust enforcement is embodied in Regolation n. 1/2003/ Ce and related Communications. Since 2004 when it came into force, some crytical assessments can already be made. The work starts from some technical analysis of the reform, under a procedural perspective, to assess the proceedings’ real impact on parties’ rights and to criticize its limits. Decentralisation has brought about more complicacies, since community procedural systems are not harmonized, neither in their administrative rules, nor in their civil proceedings, which are all involved in the European antitrust network. Therefore, antitrust proceedings end un as being more jurisdictional in their effects than in their guarentees, which is a flaw to be mended by legislators. National laws shoud be harmonized, community law should be clarified and the system should turn more honestly towards a rationalized jurisdiction-cented mechanism. Otherwise, parties defense rights and the overall efficiency are put into doubt. Italy is a good exemple of how many colmlicacies can outburst from national procedures and national decentralised application. An uncertain pattern of judicial control, together with unclear relationships among the institutions to cooperate in the antitrust network can produce more problems than they aim to solve. As to the private enforcement, Regulation n.1 does not even attempt to give precise regulation to this underdeveloped sector. A continual comparison with U.S. system has brought the Commission to become aware both of the risks and of the advanteges of an increased civil antitrust litigation in fronto of national judges. In order to substain a larger development of this parallel and, presently, difficult way of judicial compensation, it is presently ongoing a consultation among states to find suitable incentives to make private enforcement more appealing and effective. The solution to this lack of private litigation is not to be sought in Regulation n. 1 which calls into action national legislators and proceedures to implement further improvements. As a conclusion, Regulation n. 1 is the outpost of an ambitious community design to create an efficient control mechanism over antitrust violations. It focuses on Commission proceedings, powers and sanctions in order to establish deterrence, then it highlights civil litigation perspectives and it involves directly states into antitrust application. It seems that more could be done to technically shape administrative proceedings in a more jurisdictionally oriented form, then to clarify respective roles and coordination mecanisms in order to prevent difficulties easy to forsee. Some of jurisprudential suggestions have been accepted, but much more is left to be done in the future to improve european antitrust enforcement system.

El protocolo judicial en España

Programa de doctorado: Nuevas perspectivas del Derecho Privado

Le politiche giudiziarie inglesi degli anni 2000: mutamento di paradigma e rafforzamento dell'incisività politica dei giudici

The Ph.D. dissertation analyses the reasons for which political actors (governments, legislatures and political parties) decide consciously to give away a source of power by increasing the political significance of the courts. It focuses on a single case of particular significance: the passage of the Constitutional Reform Act 2005 in the United Kingdom. This Act has deeply changed the governance and the organization of the English judicial system, has provided a much clearer separation of powers and a stronger independence of the judiciary from the executive and the legislative. What’s more, this strengthening of the judicial independence has been decided in a period in which the political role of the English judges was evidently increasing. I argue that the reform can be interpreted as a «paradigm shift» (Hall 1993), that has changed the way in which the judicial power is considered. The most diffused conceptions in the sub-system of the English judicial policies are shifted, and a new paradigm has become dominant. The new paradigm includes: (i) stronger separation of powers, (ii) collective (as well as individual) conception of the independence of the judiciary, (iii) reduction of the political accountability of the judges, (iv) formalization of the guarantees of judicial independence, (v) principle-driven (instead of pragmatic) approach to the reforms, and (vi) transformation of a non-codified constitution in a codified one. Judicialization through political decisions represent an important, but not fully explored, field of research. The literature, in particular, has focused on factors unable to explain the English case: the competitiveness of the party system (Ramseyer 1994), the political uncertainty at the time of constitutional design (Ginsburg 2003), the cultural divisions within the polity (Hirschl 2004), federal institutions and division of powers (Shapiro 2002). All these contributes link the decision to enhance the political relevance of the judges to some kind of diffusion of political power. In the contemporary England, characterized by a relative high concentration of power in the government, the reasons for such a reform should be located elsewhere. I argue that the Constitutional Reform Act 2005 can be interpreted as a result of three different kinds of reasons: (i) the social and demographical transformations of the English judiciary, which have made inefficient most of the precedent mechanism of governance, (ii) the role played by the judges in the policy process and (iii) the cognitive and normative influences originated from the European context, as a consequence of the membership of the United Kingdom to the European Union and the Council of Europe. My thesis is that only a full analysis of all these three aspects can explain the decision to reform the judicial system and the content of the Constitutional Reform Act 2005. Only the cultural influences come from the European legal complex, above all, can explain the paradigm shift previously described.