Análise da constitucionalidade, sob a ótima da isonomia, da limitação remuneratória dos Procuradores Estaduais e Municipais a 90,25% do subsídio mensal dos Ministros do Supremo Tribunal Federal

Abstract

The Constitution of the Federative Republic of Brazil - CRFB/1988 had its wording changed by the Constitutional Amendment nº 41/2003, on its art. 37, XI. That amendment fixed a differentiated remuneration called “sub-ceiling” for judges of courts of justice, consisting on a maximum of 90.25% of the monthly allowance compared to the Justices of the Supreme Court. This rule states this same limit to members of state public ministries (attorney generals), state and municipal prosecutors and state public attorneys. However, the Supreme Court, in the ADI 3854/DF, declared the unconstitutionality of such limitation regarding state, on the central basis that the magistracy is a single career, so that there could be no distinction between the ceiling of federal judges – limited to the full allowance of the Supreme Court members – and the one applicable to state magistrates. In this judgment, however, there was no direct confrontation regarding the constitutionality of the incidence of the sub-ceiling - which, in practice, does not exist for the state judiciary - to the careers of the state and municipal prosecutors' offices, being the objective of this work to analyze if, from the perspective of the principle of isonomy, such Direito constitucional |x Emendas distinction is legally valid. Specifically regarding municipal prosecutors, the work will also assess whether the decision under RE nº 663.696/MG (Theme 510) is already sufficient to validate the analyzed remuneration limitation. The theoretical framework will be the concept of isonomy brought by Celso Antônio Bandeira de Mello, which main aspect is that the granting of different normative treatment for factually equivalent situations is not allowed. The hypothesis to be verified is the unconstitutionality, as an offense to equality, of the submission of members of state and municipal prosecutors to the subceiling of 90.25% of the monthly subsidy of the Supreme Court ministers. The research will be classified as legal-dogmatic, since it will focus on the abstract analysis of legal norms, especially regarding the constitutionality of adopting a different interpretation in favor of the judiciary, when compared with the remuneration limit imposed to other legal careers of State. Also, the legal-propositional model is chosen for the generic type of research, since the constitutionality of the remuneration sub-ceiling in question will be questioned and its inapplicability will be proposed for the aforementioned state careers. Secondary data will be used for the development of the research, which are bibliographic research and jurisprudential analysis, appropriate sources for understanding the controversy. The research will be qualitative and will follow the discourse analysis strategy.