Independência funcional do advogado público federal na constituição da república federativa do Brasil em uma advocacia de estado atenta aos direitos dos cidadãos

Abstract

This dissertation has as its theme the Functional Independence of the Federal Public Attorney in the Constitution of the Federative Republic of Brazil in a Advocacy of the State Attentive to the Rights of Citizens. The Federal Constitution gives the Public Advocacy status of Essential Function to justice. The activity is regulated in arts. 131 and 132 of the Federal Constitution. At the federal level, the Public Advocacy is exercised by the Advocacy General of the Union, composed by the careers of the Union Attorney, Attorney of the National Treasury, Federal Attorney and Attorney of the Central Bank. Meets the Public Attorney conduct the defense of the state and legally enable the implementation of public policies. It is necessary, however, to see how one can reconcile the defense task of state interests without denying rights to citizens. Thus, it has as general objective to analyze the existence or not of functional independence for the public attorney to develop his/her tasks, because the Constitution does not highlight this prerogative expressly, as it did in relation to the Public Ministry and the Public Defender's Office. Specific objectives will be sought to verify how the functional independence of the Public Attorney could contribute to the reduction of state litigation; analyze the inconsistencies of the current paradigm of a Government Advocacy and shape aspects of the ideal paradigm of an Advocacy of the State. It is adopt the deductive methodology, starting from the general knowledge to a specific one, with the theme of the approach proposed from the perspective of the literature technique, seeking elements in legislation, national and foreign doctrine and the country law and internal rules of the Advocacy General of the Union. It is realized an exemplary approach to demonstrate how the paradigm of Public Advocacy is focused on a Government Advocacy and what could be expected from an Advocacy of the State in a republican model attentive to the rights of citizens. The republican way of government the state action should be directed to meet the interests and basic needs of society, always seeking to promote the common good. The role of the Public Attorney should then be feet in the thin thread between defending the state, enabling the implementation of public policies and at the same time plays an important preventive role for the observance of the law by state bodies. It is concluded that the functional independence of the Public Attorney is implicit constitutional principle to the exercise of legal activity deriving from the constitutional endowment. In a Republican and Democratic State of Law that has the foundation to build a just society (CF, art. 3, I) the principle of functional independence of the Public Attorney is extracted from examination of art. 131 in conjunction with art. 37, caput, of the Federal Constitution, and the observance of fundamental principles and rights. However, given the reality of the current paradigm of a Government Advocacy the principle of functional independence of the Federal Public Attorney has being unobserved in empirical reality, being one of the causes for the excess state litigation and the difficulty of recognition of rights belonging to citizens.