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

A ação civil pública como meio de concretização do direito à saúde na Constituição de 1988

The work presented here is about aspects of the constitutional extension in which is the public civil action with the objective of verifying its aptitute in tutelaging subjective situations derived from fundamental rights, especially right to health assistance. Thus, it offers a clear analysis of the practical functioning of most aspects of the public civil action (lawsuit), with philosophical foundation and necessary doctrinaire to your comphehension. How it once was (history), how it could be (reform suggestion), how it is (current interpretation of the law) and how it should be (critic analysis of the microsystem of collective tutelaging of rights, its perspectives, as well as the efficacy of the public cilvil action about accomplishment of the right to health as supraindividual right). The objective is to analyse the main version of the theme (for instance: the impacts caused to the dissociation of the Procurations theory), so that it can be extracted the philosophy and the general theory, of the public civil action and collective tutelaging in general, pragmatically applicable to study purposes. With this theorical fountain, the reader will be in a more solid position, not only being able to understand the subtilities of the public civil action, but mainly being able to recognize its faults and present solid reform proposals and improvement. It is know that the Juridical Power (Procuration) does not allow any more inactivity about negating accession to health in its collective dimension (lato sensu: spread, collective stricto sensu and homogeneous individuals), being imputed to it novel usage that consolidates in the assumption of the role instrument set aside to be used by all with organized instancy of solution to collective conflicts in large sense. This happens, overall, because of the current justice politization, understood as juridical activism, connected to the struggle between the groups defending their interests and the acceptance of the constitution about solidifying the public politics of quality health

Normas tributárias indutoras na concretização do princípio constitucional da redução das desigualdades sociais e regionais

The Federal Constitution states that the reduction of social and regional inequalities is one of the goals to be achieved by the Brasilian State. The economic constitution states that the national economy must be developed so as to achieve, amongst other objectives, the reduction of those inequalities. In this paper, we aim to demonstrate the duty, imposed by the Constitution to the State, of acting in the national economy so as to promote the achievement of the constitutional goals, among wich we highlight the reduction of inequalities. One of the instruments that can be used by the State to achieve this objective is its fiscal policy. It is also an aim in this paper to demonstrate that inducing tax norms can be used by the State, because it can encourage the economic agents to bring about the reduction of social and regional inequalities. Therefore, after bibliographic and jurisprudential research, we conclude that the duty, imposed to the State, of acting in the national economy so as to promote the achievement of the constitutional goals exists. We also conclude that this acting must be planed and constant, because the consequences are slow and that, within the limits of the constitution, the inducing tax norms can be an instrument for the State in order to reduct the social and regional inequalities

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 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.

Direito fundamental ao tempo razoável do processo judicial: limites e possibilidades de concretização no ordenamento jurídico pátrio

This dissertation aims to address the limits and possibilities of realizing the fundamental right to reasonable time of the Brazilian legal system process. From this perspective, we analyze a reasonable time concept for the process, consistent with the civil homeland process; the relationship between efficiency, effectiveness, legal security and reasonable time of adjudication; a formal recognition of the fundamental right to reasonable time of the procedure in the Constitution of 1988; and the immediate applicability of this fundamental right. As indicated, the crisis of the Judiciary and procedural delay are problems directly related to the limits and possibilities of realization of the fundamental right under study. Moreover, we also present some mechanisms that can be used to overcome these problems. The subject was developed based on constitutional interpretation of fundamental rights, an approach that will always have this concern to be based on a methodology which includes the normative and empirical-dogmatic fields, realizing the fundamental right to reasonable time of the process. We adopted as methodological approach the study of this issue in judicial aspect, more specifically in the field of civil procedure. Finally, we weave through a critical and analytical view, our conclusions, which demonstrate the possibilities of overcoming the limits imposed to immediate implementation of the fundamental right to reasonable time of the process in our legal system

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

Acesso à justiça enquanto direito fundamental: efetivação pela defensoria pública

The Federal Constitution of 1988 is recognized for its enlargement in the face of large amount of provisions that make it up, among which many are fundamental rights. The fundamental rules set up the foundation of a democratic state, however, are the necessary legal mechanisms to be effective, its exercise is not enough merely to state them, but to offer ways for them to stop being just written standard on paper, and come to be viewed and exercised day-to-day. In this sense, access to justice presents itself in our times, as a cornerstone for a just society dictates. In this light, access to justice can be seen as the most fundamental of rights, which translates as instruments able to safeguard the fundamental rights not only against the action/omission violating the state but also the very particular. Furthermore, access to justice within the legal country, is not right for everyone, despite the willingness of the Citizen Charter in its article 5, paragraph LXXIV, ensuring that the State shall provide full and free legal assistance to those in need. More than half of the population lives in poverty and can´t afford to pay legal fees or court costs as well as a bump in their own ignorance of their rights. The judiciary, in their primary function, is in charge of trying to correct the violation of the rights, intending to effect a true distributive justice, serving as a paradigm for the promotion of substantive equality of human beings, however, is difficult and tortuous access Justice for those without financial resources. In this vein, we present the Public Defender, as keeper of the masses in its institutional role, defending a disadvantage, in the words, as a mechanism for effective access to justice, ensuring therefore fundamental rights. Public Defenders arise at the time or much discussion highlights the priority of actual access to justice, custody, therefore, intimate bond with the pursuit of fundamental rights, in which, that advance the broad range of rights, without whom could defend them or guardianship them

Desvios de finalidade no Direito Constitucional Tributário brasileiro: aspectos estruturais e teleológicos da tributação na Constituição Federal de 1988

This work deals with considerations regarding common types of tax misuse that are present in the 1988 Brazilian Constitution. Thus, the work aims to unveil dogmatic features present in these practices that are considered illegal and are beset with vices such as power misusage. The research also aims to acknowledge the unconstitutionality issues regarding other guidance on behalf of goods that are responsible for the gradual positive approach realized by the 1988 Brazilian Federal Constitution. Thus, the work systematically used methodological procedures that aim to interpret the logical premises present as in the structure proposed by incidence rule matrix as in Ihering´s correction criteria considered as effective in itself. This is done also considering themes such as the Brazilian Public Tax legal matters. The work also performs a teleological debate of the Brazilian National Tax System as well as other related themes. It is understood that power misusage or any regards increase in aliquots. This can be observed in the quantitative criteria present in central aspects regarding taxes that are described in the constitutional regime either regulatory or induced nature, such as §1º, of the normative information present in article number 153 which is considered predominantly as tax raising such as pointed out in the 1988 Brazilian Constitution. On the other hand, it is seen that the type of misguidance with goods is understood as a practice that deviates as well as cuts connection with (rectius, unattaches) tax resources that are gathered and destined to specific constitutional purposes. At the end, the work deals with issues that aim to identify possible causes that lead to the use of norms and patterns that regulate such deviations. The research emphasizes ratio issues that are present in tax inspection proposals and invalidation that aim to restore the logical compatibility of these normative actions included in the Constitutional Tax Legal matters that was put forth by the 1988 Brazilian Federal Constitution

O direito à saúde e a política nacional de atenção oncológica: uma análise a partir da crescente judicialização dos medicamentos antineoplásicos

The 1988 Federal Constitution of Brazil by presenting the catalog of fundamental rights and guarantees (Title II) provides expressly that such rights reach the social, economic and cultural rights (art. 6 of CF/88) as a means not only to ratify the civil and political rights, but also to make them effective and practical in the life of the Brazilian people, particularly in the prediction of immediate application of those rights and guarantees. In this sense, health goes through condition of universal right and duty of the State, which should be guaranteed by social and economic policies aimed at reducing the risk of disease and other hazards, in addition to ensuring universal and equal access to actions and services for its promotion, protection and recovery (Article 196 by CF/88). Achieving the purposes aimed by the constituent to the area of health is the great challenge that requires the Health System and its managers. To this end, several policies have been structured in an attempt to establish actions and services for the promotion, protection and rehabilitation of diseases and disorders to health. In the mid-90s, in order to meet the guidelines and principles established by the SUS, it was established the Política Nacional de Atenção Oncológica PNAO, in an attempt to sketch out a public policy that sought to achieve maximum efficiency and to be able to give answers integral to effective care for patients with cancer, with emphasis on prevention, early detection, diagnosis, treatment, rehabilitation and palliative care. However, many lawsuits have been proposed with applications for anticancer drugs. These actions have become very complex, both in the procedural aspects and in all material ones, especially due to the highcost drugs more requested these demands, as well as need to be buoyed by the scientific evidence of these drugs in relation to proposed treatments. The jurisprudence in this area, although the orientations as outlined by the Parliament of Supreme Court is still in the process of construction, this study is thus placed in the perspective of contributing to the effective and efficient adjudication in these actions, with focus on achieving the fundamental social rights. Given this scenario and using research explanatory literature and documents were examined 108 lawsuits pending in the Federal Court in Rio Grande do Norte, trying to identify the organs of the Judiciary behave in the face of lawsuits that seeking oncology drugs (or antineoplastic), seeking to reconcile the principles and constitutional laws and infra constitutional involving the theme in an attempt to contribute to a rationalization of this judicial practice. Finally, considering the Rational Use of health demands and the idea of belonging to the Brazilian people SUS, it is concluded that the judicial power requires ballast parameters of their decisions on evidence-based medicine, aligning these decisions housing constitutional principles that the right to health and the scientific conclusions of efficacy, effectiveness and efficiency in oncology drugs, when compared to the treatments offered by SUS

A responsabilização criminal no estado democrático de direito: o equilíbrio entre a efetividade e os limites da pretensão punitiva da sociedade

This paper analyzes the relationship between fundamental rights and the exercise of the claim punitive society in a democratic state. It starts with the premise that there are fundamental rights that limit and determine the validity of all forms of manifestation of the claim punitive society (legislating, investigative, adjudicative or ministerial) and there are others that require the state the right exercise, fast and effective of these activities. Travels to history in order to see that the first meaning of these rights was built between the seventeenth and eighteenth centuries, after all a history of abuses committed by state agents in the exercise of criminal justice, and positively valued in the declarations of human rights and proclaimed in the constitutions after the American and French Revolutions, while the second meaning has been assigned between the nineteenth and twentieth centuries, when, because of the serious social problems generated largely by absenteeism state, it was noted that in addition to subjective rights the individual against the state, fundamental rights are also objective values, which trigger an order directed the state to protect them against the action of the offending individuals themselves (duty to protect), the mission of which the State seeks to discharge, among other means, through the issue of legal rules typifying the behavior detrimental to such rights, subject to penalties, and the concrete actions of public institutions created by the Constitution to operate penal law. Under this double bias, it is argued that the rule violates the Constitution in the exercise of the claim punitive society as much as by excess malfere fundamental rights that limit, as when it allows facts wrong by offending fundamental rights, remain unpunished either by inaction or by insufficient measures taken abstractly or concretely provided

A Servidão Administrativa e o Estado Regulador: Compatibilidade com o Princípio Constitucional da Legalidade e a Limitação ao Direito Real de Propriedade

The economic changes occurred in the 90s, with the restructuring and privatization of various sectors of the economy have led to a redefinition of the State role, assuming a position of regulator and supervisor of public services in place to direct its role as straight intervenor. It is through the regulatory agencies, autarchies with special legal personality under public law, that the Regulator State will act. In this context, the first objective of this research is to analyze the legality of easements imposed by entities of the Direct Administration and Regulatory Agencies, whose execution is delegated to legal persons of private law, being those public service companies or mixed-economy societies. This examination in question the limits of servitude as a restrictive institute of property rights, observing the principles of function, supremacy of the public interests over the private ones, legality and the separation of powers. Defend the property rights like a fundamental right and your insurance as determining factor of economic development and social justice. Use the procedure in use will be the historiccomparative procedure, in order to demonstrate the legality of the public act as a maximum attempt to preserve the balance between the expansion of public services in various sectors of the economy, and the preservation of property rights, through regulation

Análise econômica da expansão do direito penal

Aborda a evolução histórica das liberdades individuais, a partir de apontamentos pertinentes ao constitucionalismo liberal, à formação do Estado de Direito e ao advento dos regimes democráticos amparados em direitos fundamentais. Pretende, quanto aos direitos fundamentais, mostrar diversas classificações, funções, critérios e conceitos, além da sistematização de gerações ou dimensões de direitos. Discorre acerca da teoria dos limites aos limites, ao lado de teorias correlatas em profícua confrontação doutrinária, tudo com fins a estruturar os conceitos basilares de direitos de liberdade, que orientam o restante da obra. Trata do cenário histórico-jurídico do surgimento da Análise Econômica do Direito (AED), consistente, sobretudo, no jusrealismo norte-americano, abordado, em paralelo, com o realismo jurídico escandinavo. Aplica conceitos e premissas de microeconomia ao Direito Penal, com ênfase para a investigação do comportamento criminoso empreendida pela Economia do Crime. Avança não apenas restrito à perspectiva teórica, trazendo dados empíricos e implicações concretas da teoria econômica dos delitos e das penas, que serão reconhecidos na evolução e redução da criminalidade, nas políticas de desarmamento, na estruturação empresarial do narcotráfico, bem como na otimização da administração penitenciária brasileira a fim de concretizar o preconizado pela legislação de execução penal. Desenvolve estudo a partir da leitura histórica do Direito Penal, passando pelos conceitos de sociedade complexa e de riscos. Analisa, após fixados tais pressupostos, algumas causas do processo de expansão do Direito Penal com vistas a identificar propostas alternativas ao hiperpunitivismo hodierno, preservando-se, assim, os direitos de liberdade que sustentam o Estado Democrático de Direito. Propõe uma desconstrução do conceito jurídico do princípio da eficiência administrativa, demonstrando como seu conteúdo normativo foi demasiadamente mitigado pela recepção precária dos respectivos elementos econômicos por parte da doutrina e da jurisprudência pátria. Ressalta a importância jurídica da eficiência econômica, devidamente harmonizada com os demais princípios constitucionais, por força do instrumental analítico da AED Positiva. Investiga criticamente algumas teorias sociológicas tendentes ao funcionalismo penal, sob referenciais de eficiência e de direitos de liberdade. Almeja, ao final, propor a AED como alternativa à expansão funcionalista e irracional dos tipos e sanções criminais, de modo que a aproximação entre Economia do Crime, eficiência econômica e Direito Penal contribua para blindar os direitos de liberdade das vicissitudes típicas da sociedade contemporânea

O princípio da vedação ao retrocesso social e o papel dos poderes públicos na efetivação dos direitos fundamentais sociais

The purpose of this dissertation is to analyze the role of Public Powers in the enforcement of fundamental social rights, according to the principle of prohibition to social regression. The Federal Constitution of Brazil, situated in a position normative hierarchical superior, disciplines the legal and political process of the country, determining how Public Powers (Legislative, Executive and Judiciary) should act to enforce fundamental rights (social). Thus, features a cast of fundamental rights that aim to ensure social justice, highlighting the concern to ensure social values aimed at reducing social inequalities. The will of the state should be prevented by controlling the constitutionality of measures which restrict fundamental social rights, assuming the principle of human dignity, pillar of Social and Democratic State of Right, a dual role in the brazilian legal system, acting as the presupposition of jurisdictional control of the constitutionality of restrictive acts and as supervisory of omission or insufficient action of the State in the fulfillment of their fundamental duties. The constitutional determinations remove from the legislator the option to create or not the law that prints effectiveness to the social rights, as well as from the Executive the option of to execute or not rules directed at realization of the constitutional parameters, and Judiciary to behave or not in accordance with the Constitution, being given to the Powers only the arbitrariness of "how" to do, so that all functions performed by public actors to use the Constitution as a repository of the foundational values of the collectivity. Any situation that does not conform the principle of proportionality in relation to the enforcement of fundamental rights, especially the social, represents an unacceptable social regression unconstitutional. The constitutional rules and principles postulated by the realization of the rights, freedoms and guarantees of the human person, acting the principle of prohibition to social regression to regulate a concrete situation, whenever it is intended to change, reducing or deleting, the content of a social right. This paper of limit of state action serves to provide to the society legal security and protection of trust, ensuring the core of every social right. This should be effected to be sheltered the existential minimum, as a guarantee of the inviolability of human life, respecting the constitutional will, not falling into social regression