A tendência de flexibilização da imunidade de jurisdição frente a graves violações de direitos humanos

O enfoque do presente Trabalho de Conclusão de Curso repousa sobre tendência de flexibilização da Imunidade de Jurisdição Estatal em casos de graves violações a Direitos Humanos, tendo em vista o teor das decisões de cortes nacionais e internacionais. A problemática reside no fato de que, em algumas situações, a Imunidade de Jurisdição Estatal, norma utilizada para preservação da soberania estatal, contrapõe-se a direitos fundamentais do cidadão, sujeito de Direito Internacional Público. Nesse sentido, o presente trabalho traz à baila a discussão sobre a tendência de flexibilização dessas normas consoante a observância de normas imperativas relativas à proteção de graves violações de Direitos Humanos. A hipótese do presente trabalho consiste em averiguar a tendência de flexibilização da Imunidade de Jurisdição Estatal quando contraposta a graves violações de Direitos Humanos. Observar-se-á, para tanto, o comportamento das cortes nacionais e internacionais, amparados pelos ensinamentos jurídico-doutrinários a respeito da normatização dos direitos em conflito. O intuito dessa explanação consiste não só em um (i) argumento de hierarquia, o qual enseja o questionamento da supremacia jurídica das normas de jus cogens sobre as demais, não se limitando ao Direito dos Tratados, mas também a (ii) no argumento de que a própria imunidade de jurisdição que nasceu de um costume internacional, i.e., prática reiterada uniforme e constante, pode estar-se diante de nova tendência de flexibilização da norma porquanto o surgimento de novo costume internacional, qual seja, a proteção legítima de graves violações de Direitos Humanos.

Tribunal do Júri e Soberania Popular

The present work has for object the Jury under the democratic optics, looking for to demonstrate its democratic validation. The purpose of this work was to revisit the institution, in order to bring its importance while instrument of popular participation. The work presents, first, a systematic and chronological approach of the institution of the Jury and its evolution inside of Brazilian constitutional history, objectifying, with this, to approach the narrow entailing of the Jury with the constitutional postulates. After that, the constitutional principles of the Jury had been examined, looking for to establish the popular identity of the institution and its approach with the human rights system of the Brazilian Federal Constitution. More ahead, had been examined the direct participation of the society in the Jury, going deep the questions related with the election of the jurors and the jury nullification on the American Jury. Finally, had been dedicated the study of the current conjuncture of the Brazilian Jury, its problems and the possible solutions, beyond the study of the limitation's mechanisms in the constitutional principle of the popular supremacy and the reform's projects suggested for legislators and jurists. In this way, had been looked elaborate a constitutional construction of the Jury, defending its permanence in the Brasil law system, for being a fundamental guarantee to protect the freedom, moreover for being essential to validate the Democratic State of Right, for to be the materialization of the democratic principle. For opportune, it's necessary to allege that this work had been directed to the constitutional analysis of the Jury, its legitimacy and its democratic vocation, using themselves as ideological north the American Jury System and as philosophical base the social contract theory, understanding the Jury as an instrument of protection of the society front to the state supremacy and its hierarchy structure of the power

Ordem econômica e política nacional de recursos hídricos: hermenêutica constitucional para o desenvolvimento sustentável

This research proposes a study about the interpretative techniques application that are compatible with the national legal system under the principles for Sustainable Development characterized in Brazilian Constitution. It verifies the actual possibility of reconciliation between national development and environment protection, with reflections under the water legal protection. It was proposed, therefore, to point subsidies for jurisdictional decisions involving development and the environmental goods, protected as constitutionally guaranteed principles. It was assumed that, both development and environment protection represents basic rights that are eventually placed in conflict situations, considering the many legitimate economic activities within the Brazilian State. A representative case analysis was elected within the current national scene, detailing the judicial and political conflict involving the Transboundery water Project from the São Francisco River Basin to another Northeastern river basin in Brazil. The implementation of several constitutional principles with elements from legal hermeneutics provides subsidies for the legal analysis about the conflict between development and environmental protection. It was assumed that the main discussion item about rights due to development today is the institutions influence and their results, among them the rules, laws and interpretative elements for the constitutional text objectivity, as the institutions credibility and the Supreme Courts interpretations. The use of interpretative resources for specific conflict situations about constitutional principles by Superior Courts, on the search, would bring a contributory factor for decision safety, related to sustainable development principles, elimination of inequalities and regional protecting for the environment. Specific aspects of Law No. 9.433/97 that introduced the National Water Resources Policy were examined, with its instruments, in order to specifically contextualize aspects of the Brazilian water resources management politics

Desenvolvimento como acesso às políticas públicas: a reforma do estado e a concretização dos direitos prestacionais

The state s evolution, after its liberal and the social stages, arrives at the post-social state, also regarded as regulatory state, which, in order to accomplish the state s aims, employs indirect interventions in the economy. The new model of administration adapts principles and concepts form the private sector such as the quest for efficience and tangible results, also striving for the decentralization of state s power to improve effectiveness before the new paradigm of handling of affairs of public interest. Present state derives its legitimacy from the efficiency principle, the legitimacy of the public administration cannot be limited to an analysis of legality, but the fulfillment of the ends envisaged by the public authority on its policies. These public policies have the objective of satisfying fundamental rights of the citizens. The access to public policies set by states as a way of enjoyment of the aforementioned rights constitute a legal and demandable path of development. The creation of public policies and the access to them must abide to the efficiency principle. This access must be taken unther the principles of legal and material equality, inasmuch as the liberty and real liberty. The access must also be observed as a matter of limited resources to grant, in reality, the access and enjoyment of these rights. The demandable nature of the access to public policies binds the public authority into broadening the range of these policies to every one who needs them. Thus, in this spectrum, the role of the Regulatory State, as the legal instruments for access of public policies as a legal path to development, is analyzed in the present work

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

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 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.

A concretização do princípio da igualdade em matéria tributária por meio de sentenças aditivas

This work aims to study the additive decisions, a type of juridical interpretation developed in foreign legal systems and which are known in Italy as adittive sentences. Thefore, this dissertation is based on theorical studies developed around the subject in Italy and Brazil. Considering the fact that the fundamental rights face a problem of implementation, being decreased its normative force when there are legislative partial omissions lacking constitutional justification creating privileges to certain individuals or social/economical groups over others, the method of additive interpretation according to the Constitution can be used in order to realize the principle of equality. In tax matters the subject is even more relevant in the way that it represents an important role in the economy. Partial legislative omissions can generate inequalities, favoring certain taxpayers in relation to others in similar legal situation. In these cases the privilege may have a negative impact on economic order restricting values related to the basis of market competition. On those occasions, Brazilian Judges and Courts must exercise their constitutional jurisdiction in order to expand the effects of the legislative omissions, based on the principle of equality by extending the standard to equal tax situations in order to maintain neutrality in taxation

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

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

Guerra contra as drogas: uma análise sob a perspectiva do princípio da proporcionalidade

As substâncias entorpecentes acompanham a humanidade desde o início da civilização. No entanto, várias delas foram consideradas proscritas ao longo do tempo. Seu combate foi inaugurado na comunidade internacional a partir do começo do século XX. No início, tinha o condão eminentemente moral, porquanto a proibição encerrava, por princípio, a proteção da ética ameaçada pelo padrão desviado do consumo de estupefacientes. Na década de 1970, a guerra contra as drogas, expressão cunhada nesse período, evoluiu para se tornar o meio pelo qual o consumo seria mitigado. Dez anos mais tarde, ante à impossibilidade de sucumbir o narcotráfico, passou a ser um fim em si mesma o novo argumento para os esforços militares dos Estados Unidos da América. A criminalização das substâncias entorpecentes consideradas ilícitas é fundamento jurídico da guerra contra as drogas. Esse modelo proibicionista encontra argumento no direito penal do inimigo, segundo o qual o Estado pode, em situações que exponham a coletividade a grave perigo, negar à determinada categoria de criminosos (os inimigos) as garantias inerentes ao direito penal, cabendo-lhes apenas a coação estatal. Mesmo tendo consumido trilhões de dólares, encarcerado aos milhões e custado a vida de milhares de pessoas, pode-se dizer que a guerra contra as drogas não reduziu a oferta e o consumo de substâncias entorpecentes consideradas ilícitas, nem mitigou os danos delas decorrentes pelo contrário, tornou-se um problema de segurança pública. Assim, impõe-se a verificação da constitucionalidade da norma penal que fundamenta a guerra contra as drogas, sob ponderação do princípio da proporcionalidade. Referido postulado cobra que a norma seja adequada, cumprindo a finalidade pretendida, necessária, não havendo meio menos gravoso à obtenção do mesmo fim, e proporcional, estrito senso, que a sanção imposta ao indivíduo seja equivalente ao dano que se quis prevenir. Em matéria penal há de se incluir um outro elemento, a ponderar se as consequências da proibição em matéria penal, por si só, são mais graves que os consectários dos fatos que se pretendem proibir - exige-se que a lei seja socialmente menos ofensiva. A norma penal que fundamenta a guerra contra as drogas não se mostrou hábil a mitigar os danos sociais delas decorrentes sendo, por isso, inadequada. Existem meios alternativos à criminalização mais eficientes à esse objetivo, pelo que se faz desnecessária. Na medida em que estupefacientes mais nocivos à coletividade são considerados lícitos, a criminalização de drogas menos danosas se mostra desproporcional. E, uma vez que dela resultam graves danos à sociedade, não atende ao critério da menor ofensividade social. É, portanto, inconstitucional

Mediação como instrumento de desjudicialização das questões familiares: constitucionalização do Direito de Família

The Liberal Constitutionalism emerged from the late eighteenth century, a period of major revolutions (French and American), fruit of the struggle for libertarian rights. Although the time of the first written constitutions, these were linked to mere political letters, did not provide for fundamental human rights, as it is, so only on the state organization, structure of powers, division of powers of the state and some relations between state and individuals. There was a clear division between the civil codes and constitutions, those governing private relations and acted as barriers to non-state intervention. After the Second World War, the constitutions are no longer Letters political order to establish how the human person, in order to enshrine the fundamental rights, the primacy of constitutional principles and take their normative function against ordinary legislator. Constitutional evolution gave the name of contemporary constitutionalism, based on repersonalization or despatrimonialização of Private Law, ceasing the separation of legislative civil codes and constitutions, in favor of the protection of fundamental rights of the human person. And this tendency to the Brazilian Federal Constitution of 1988 brought higher ground the dignity of the human person, the epicenter axiological legal to govern private relations, including family law. The constitutionalization of family law motivates the adoption of desjudicialização family issues, so as to respect the direio intimacy, privacy, private autonomy and access to justice. Conflictual family relationships require special treatment, given the diversity and dynamism of their new compositions. The break in the family relationship is guided in varied feelings among its members in order to hinder an end harmonic. Thus, the judiciary, through performances impositive, not to honor the power of decision of the parties, as also on the structural problems faced to operate on these cases, the environment is not the most appropriate to offer answers to the end of family quarrels. Situation that causes future demands on the dissatisfaction of the parties with the result. Before the development of the Family Law comes the need to adopt legal institutions, which monitor the socio-cultural, and that promote an effective assistance to people involved in this kind of conflict. In obedience to the private autonomy, before manifestations of volunteers involved in family mediation, among autocompositivos instruments of conflict resolution, is indicated as the most shaped the treatment of family quarrels. Remaining, then the state a minimal intervention to prevent excessive intrusion into private life and personal privacy

Liberdade de expressão artística: concepções filosóficas, fundamentalidade constitucional e política da pluralidade

The right to artistic expression, freedom granted in the western democratic constitutionalism, is a fundamental right that cyclically, compared to other cohesive rights of expression, has been forgotten and put in an irrelevant juridical-dogmatic position. The first reason for this behaviour that disesteems artistic freedom is the valorisation of rationalism and scientificism in the modern society, subordinating academic researches to utilitarianism, relegating the purpose of feelings and spirituality on men s elocution, therefore, we investigate, guided by philosophy, the attribution of art on human formation, due to its capacity in harmonising reason and emotion. After that, we affirm the fundamental right to artistic expression s autonomy in the 1988 valid constitutional order, after a comparative explanation of freedom in the Fundamental Laws of United States, Portugal, Spain and Germany; and the construction historic-constitutional of the same right in the Brazilian Constitutions. In this desiderate, the theoric mark chosen is the Liberal Theory of the fundamental rights, guiding the exam through jusfundamental dimensions: juridical-subjective and juridical-objective. Whilst the first, classical function of resistance, delimitates the protection area of the artistic expression right from its specific content, titularity and its constitutional and subconstitutional limits, the other one establishes it as cultural good of the Social Order, defining to the State its rendering duties of protection, formation and cultural promotion. We do not admit artistic communication, granted without legal reserve, to be transposed of restrictions that belong to other fundamental rights and, when its exercise collides with another fundamental right or juridical-constitutional good, the justification to a possible state intervention that tangentiates its protection area goes, necessarily, through the perquisition of the artist s animus, the used method, the many viable interpretations and, at last, the correct application of the proportionality criteria. The cultural public politics analysis, nevertheless, observes the pluralism principle of democratic substratum, developer of the cultural dialogue and opposed to patterns determined by the mass cultural industry. All powers are attached, on the scope of its typical attributions, to materialise public politics that have the cultural artistic good as its aim, due to the constant rule contained in §1, art. 5º of the Federal Constitution. However, the access and the incentive laws to culture must be constantly supervised by the constitutional parameter of fundamental right to equality