masterThesis
Litigância de interesse público: adequação e efetividade da tutela jurisdicional no âmbito do controle judicial de políticas públicas
Fecha
2016-06-17Registro en:
CASTRO, Guglielmo Marconi Soares de. Litigância de interesse público: adequação e efetividade da tutela jurisdicional no âmbito do controle judicial de políticas públicas. 2016. 225f. Dissertação (Mestrado em Direito) - Centro de Ciências Sociais Aplicadas, Universidade Federal do Rio Grande do Norte, Natal, 2016.
Autor
Castro, Guglielmo Marconi Soares de
Resumen
The enunciation of social, economic and cultural rights in constitutional texts gave rise to the
emergence of a new type of subjective public rights which must be mandatorily provided by
the State. The implementation of those rights demands, also, setting goals and programs,
planning and the development of actions by the government. Although these tasks are
conducted primarily through political activity, they continue to be necessarily guided by
constitutional law and shall be subject to the possibility of jurisdictional control. The analysis
of the compliance of public policies with the constitutional and legal dictates, by the Judiciary
Branch, is also subject to limits and standards setted by the legal order. The enforceability of
social rights whose implementation is a government responsability, before the Public
Administration, therefore, it is a necessary result of the admissibility of the control exercised
by the constitutional jurisdiction organs on the state action and its omissions in the fulfillment
of those rights. Therefore, the existence of appropriate legal remedies to satisfy, with
effectiveness, the object of the claims, in order to obtain materials installments from the State
can´t be dispensed. In order to comply the specific characteristics of the procedural discussion
about the public policy, it is urgent to design a judicial protection model of the public interest,
type of litigation tactics that has different structure compared to the traditional process. It is
necessary, therefore, that means are provided to render viable the garnering of technical, social,
budgetary and financial data, that are necessary to form the conviction of the judge in the
cognitive stage, as well as to enable the construction, along the parts and with the collaboration
of civil society, of the solution to the public law litigation and the way in which the decision
should be complied by the government. In this sense, it is proposed that the actions aimed at
implementing public policies are performed, preferably, through negotiated schedules of
voluntary compliance. It is required that the process results, in any case, in the effectiveness in
the judicial implementation of those providences, prioritizing consensual ways to achieving its
satisfaction by the public administration, without neglecting the forced use of the executive
means whose adoption will come to be recommended. To this end, the subrogatory actions,
coercive and punitive, aimed at ensuring the authority of the judicial measures, should be
implemented in a different approach and should be appropriate to the specific characteristics of
public law litigation and to procedural prerogatives of the exchequer, including reaching, when
appropriate and necessary, the public agent responsible for the execution of public policy. The
principle of proportionality plays a prominent role in the selection of adequate and sufficient
executives means for concrete hypothesis. In complex cases of disputes marked by structural
failure, in which the situation of fundamental rights violation is rooted in the functioning of the
service or state agency, the judge must make use of appropriate methodology, and should
national law seek subsidies in consolidated experience in other legal orders. The establishment
of a specific procedure to actions focused on judicial control of public policies can contribute
greatly to giving to the matter a adequate and effective protection. Study of exploratory and
descriptive nature, based on bibliographical, case law and legislation research.