Programa de Pós-Graduação em Direito - PPGD/ICJ

URI Permanente desta comunidadehttps://repositorio.ufpa.br/handle/2011/3417

O Programa de Pós-Graduação em Direito (PPGD) iniciou suas atividades em 1984 e integra o Instituto de Ciências Jurídicas (ICJ) da Universidade Federal do Pará (UFPA), que, por sua vez, se originou da Faculdade Livre de Direito do Pará, uma das mais antigas do país, fundada em 1902.

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Agora exibindo 1 - 20 de 20

Acesso aberto (Open Access)
As ações afirmativas como instrumento de inclusão social: uma análise à luz da teoria da igualdade de recursos de Ronald Dworkin
(Universidade Federal do Pará, 2012) VALENTE, Karla Rafaelli Ribeiro; BRITO FILHO, José Cláudio Monteiro de; http://lattes.cnpq.br/7823839335142794
This study intends to discuss affirmative action as able instruments to promote the social inclusion of vulnerable groups, specifically black people. We try to justify the use of affirmative actions by the State from the perspective of distributive justice, from the conception of the theory of “equality of resources”, developed by c. To justify the use of these measures, we set from the Dworkin's liberal political theory, trying to analyze the values that comprise it, whice are: liberty, equality and community. Inside this discussion of the justification for affirmative action, we established that they should be guided by the criteria of justice, adequacy and efficiency, under penalty of being unconstitutional and innocuous. We understand that this discussion fits perfectly to the Brazilian reality, which is marked by profound social exclusion. Furthermore, any analysis of the substantive content of equality needs take place in the context of a “normative political theory”. That’s why we choose to study this question from Dworkin's theory, which is consistent with the precepts contained in CRFB/1988. After forming this fundamental basis, we start to analyze the case in Brazil, taking as a paradigm the policy adopted by UFPA through Resolution nº. 3.361/2005/CONSEP, investigating whether the measure adopts the minimum retro-mentioned criteria.
Acesso aberto (Open Access)
Ativismo judicial na saúde: uma contribuição para solucionar a moratória ilimitada da sociedade de controle na concretização dos direitos fundamentais
(Universidade Federal do Pará, 2016-03-24) SILVA, Jaime Santana Orro; BRITO FILHO, José Cláudio Monteiro de; http://lattes.cnpq.br/7823839335142794
The judicial activism phenomenon or legalization policy has been growing year after year in our paternal land, so that the performance of the judiciary has raised doubts and questions. Thus, in our research we will seek to understand how the judicial activism or legalization of politics in Health can help to solve the so-called unlimited moratorium control society on the implementation of fundamental human rights. Thus, we will analyze the judicial activism or legalization policy in Health, as well as its contribution to resolution of unlimited moratorium on Social Rights, taking into account the company's control, where nothing is implemented effectively. Therefore, we will examine the fundamental rights, the emergence of social protection, and we will try to understand the unlimited moratorium within the context of the control society. About these issues we will try to find a theory that serves as a foundation for the judicial activism or legalization policy as a tool for the implementation of Fundamental Rights. The research will be defined in relation to the fundamental right to health and their effective implementation, such as consolidating democracy, human dignity. Moreover, without intent to exhaust the topic, analyze the society of control and unlimited moratorium, as well as the judicial activism or political legalization based on the ideal of liberal principles or egalitarian liberal developed by Rawls and perfected by Dworkin, checking can contribute to resolving the unlimited moratorium on implementation of Fundamental rights of health, allowing the individual to have access to full health, taking into account their particularities.
Acesso aberto (Open Access)
O controle judicial do orçamento da saúde no Brasil
(Universidade Federal do Pará, 2009-08-28) NOLETO, Maria Clara Barros; MAUÉS, Antonio Gomes Moreira; http://lattes.cnpq.br/5100632338260364
The right to health is a basic right established in the Brazilian Constitution and responsibility of the Public Authorities. However, the implementation of the health policies is often precarious leaving many Brazilians without access to health care. Because of this there is a growing search for the judiciary to solve eventual conflicts. The legal decisions often bring monetary impacts because of the arrest of resources implemented. This dissertation will analyze the reasons associated with this problem. The fundaments of the judges´ decisions are evaluated and it is found that they use a retributive justice perspective which brings a mismatch between the nature of the conflict and the solution given. Further investigation shows the budget as a fundamental point to the comprehension and solution of the problem, and I discuss the finality, the control and the constitutional principles related to this. In the discussion it becomes clear the importance of public expenditure and the respect to what is established in the budgetary law, reinforcing the discussion of the nature of the Brazilian Budget. I analyze the public expenditure control as well as the mechanisms available to the justice to intervene when the public administrator does not follow the law. Finally it is shown that it is possible to implicate even the head of the Executive for the measures adopted by the State which are not in agreement with the Public Budget.
Acesso aberto (Open Access)
Critérios para a justiciabilidade dos direitos sociais: fundamentos, exequibilidade e universalidade
(Universidade Federal do Pará, 2011) MARECO, Gabriella Dinelly Rabelo; MAUÉS, Antonio Gomes Moreira; http://lattes.cnpq.br/5100632338260364
From the assumption that all constitutional provisions present normative character, this study intends to identify the standards that can be used by interpreters in the solution of lawsuits involving constitutional social rights. The interpretive method of classical positivism, based on the idea that the legal content of a standard can be discovered with the use of semantic parameters, combined with an individualistic understanding of the demands that deal with social rights, has leaded, in Brazil, to many problems and distortions in the allocation of public resources. In this context, this dissertation presents standards capable of providing the interpreter and the judge an more appropriate way to guide the legal argumentation. Such standards will be formulated as questions and do not lend themselves to indicate the final court decision. These questions allow the judge to take into account many relevant matters, covering mainly aspects related to the legal basis of the demand, the possibility of real satisfaction of the claim and the compliance to the right of equal access to public goods. Finally, from the interpretation of some central theses of the works of Ronald Dworkin and Robert Alexy, we can observe how two different theoretical frameworks engender very distinct practical outcomes. The comparative approach, based on the review of major works of these authors, leads to the conclusion that the ideas defended by Dworkin are more satisfactory when applied to Brazilian constitutional model, as long as the necessary adjustments are made to ensure the theory´s adequacy to its particularities.
Acesso aberto (Open Access)
Danos em massa e os punitive damages
(Universidade Federal do Pará, 2015-03-04) BONNA, Alexandre Pereira; LEAL, Pastora do Socorro Teixeira; http://lattes.cnpq.br/3244282344643324
A rereading of the punitive damages institute is proposed from the perspective of its interface situated between the collective action and the mass damages. It is examined whether the indemnity that arises out of the punitive damage should be handled in a context of collective or individual actions, aiming to satisfactorily answer which of the aforementioned ways is the most suitable, by taking an analysis based on the comparative method, sustained by two factors: the right to proof of the relevant facts to characterize the punitive damages and measuring the degree of reprehensibility of the conduct and the economic theory of punitive damages on the discouragement, based on the theory Polinsky and Shavell. A research is performed assuming that the punitive damages has a place is Brazilian’s legal system based on the theory of law as integrity from Ronald Dworkin, nevertheless, the outline of the punitive damages are searched in the North American Juridical experience as a theoretic base for the comparison made with eyes turned to the Brazilian case. An analysis of the precedents of the Supreme Court of the United States is performed and the relevant facts for the punitive damage are adopted based on the interpretation of such Court. The application profile of the punitive damages in the United States and in Brazil are traced, intending to identify the weak elements in the national legal practice. The requisite of the superiority of the collective actions seen in the North-American experience is brought to Brazilian Law from the perspective of the interest to act and the effectiveness of the process. The meaning of the superiority test is deepened based on the test that exists in the North-American experience with the class actions, which is used in the task to determine if the rights at stake are able of being collectively judged in the context of the class action for individual damages, in other words, the superiority is a requisite for the processing of a class action, implying that the magistrate must evaluate whether the class action is superior to other available proceedings, in terms of justice and efficiency of the decision. Examines the superiority of collective protection for the right proof of the relevant facts to the impact of punitive damages and assessing the degree of reprehensibility of conduct. Assesses the superiority of collective protection under the paper disincentive situated in economic fundamentals of punitive damages. The conceptualization of mass damages is adopted, allocated in the scope of procedural law. It is concluded that when facing individual mass damages produced in a large scale, the most suitable way of obtaining an adequate level of dissuasion and reprehend the behavior of the offender is to make use of the collective action, the same way that the collective actions have proved to be superior because of the legitimacy that lies on the right to evidence of the relevant facts in order to characterize the incidence of the punitive damages and assess the degree of reprehensibility of the conduct.
Acesso aberto (Open Access)
De direito indigenista a direitos indígenas: desdobramento da arte do enfrentamento
(Universidade Federal do Pará, 2009) MACHADO, Almires Martins; BELTRÃO, Jane Felipe; http://lattes.cnpq.br/6647582671406048; BENATTI, José Heder; http://lattes.cnpq.br/6884704999022918
This paper addresses the right Guarani, with its principles, nuances in conversation and subsumption of community issues. How to resolve conflicts in various fields of law, in a society Guarani. Discusses the importance that traditional religion has for the native law, which stems from the holistic mind. Discusses the principles of law Guarani: solidarity, reciprocity and prevalence of the collective interest of the individual. While dealing with indigenous law, the focus is on the right to hold property Guarani. The value is the theoretical framework of legal pluralism, to sustain it as a legal system, although thought and legislated differently than national law. In the end, enters on the adverse outcomes of external intervention, without due care anthropological necessary to such actions, departing in this case who is in charge of defending the legal right and interest indigenous. Explains the difficulty that has to work with right of indigenous peoples, to the limited literature that deals with it and because each indigenous people has its own ways of thinking and applying the law.
Acesso aberto (Open Access)
Diálogo entre cortes: a recepção da jurisprudência da corte interamericana de direitos humanos no Brasil: uma análise das decisões dos Tribunais Regionais Federais e do Superior Tribunal de Justiça
(Universidade Federal do Pará, 2015-06-16) ALBUQUERQUE, Lígia Chiari Mendes; MAUÉS, Antonio Gomes Moreira; http://lattes.cnpq.br/5100632338260364
The present work analyzes the judicial dialogue between the Inter-American Court of Human Rights (IACHR), the Brazilian Federal Regional Courts and The Superior Court of Justice. It is understood that Brazil is inserted in a context of legal pluralism, since it is subjected to more than one human rights protection order. To reconcile these orders is necessary to seek a non-hierarchical solution, being the judicial dialogue one of them. The work analyzes the types of dialogue, the ways in which the courts can relate to and the position of national judges in relation to the regional law on human rights. We, then, searched the websites of the Brazilian Courts objects of this study to identify decisions that used the jurisprudence of the Inter-American Court as a reasoning for deciding the cases. From these results it was concluded that the judicial dialogue between these courts is still in it’s early point, depending in many times on the personal initiative of certain magistrates, although we have found some significant results qualitatively, that shows that the dialogue is possible and would be positive as in protecting human rights.
Acesso aberto (Open Access)
Direito à intimidade do empregado e o poder de direção do empregador: abrangência e limites
(Universidade Federal do Pará, 2012) LIMA, Vanessa Diniz Alcântara Fonteles de; NASSAR, Rosita de Nazaré Sidrim; http://lattes.cnpq.br/2092928958819725
The research developed in the context of the employment relations and deals with the limits and scope of the right to intimacy and privacy of the employee and the employer’s power of direction. That as a fundamental right guaranteed by the Brazilian Constitution to all citizens, and this as a mechanism essential for the development of management activities under a contract of employment, such as hiring, supervising, establish regulations, punish, among others. The first features based on the art. 5, X of the Constitution of 1988-CF/1988, and second, in art 2 of the Consolidation of Labor Laws – CLT. The subject is relevant, mainly by finding limits to the employer’s direction, imposed by duty to respect the fundamental rights to employee. Another sort, this also has limitations on the existence of such rights in the course of their work activities due to the character of subordination inherent in the employment contract. The present study makes an analysis of principles and fundamentals of the rights in question, with the final guidelines on the composition of possible conflicts concerning the proposed topic.
Acesso aberto (Open Access)
Direitos humanos dos indígenas crianças: perspectivas para a construção da doutrina da proteção plural
(Universidade Federal do Pará, 2012) OLIVEIRA, Assis da Costa; BELTRÃO, Jane Felipe; http://lattes.cnpq.br/6647582671406048
This study discusses the possibilities of inclusion the indigenous children in the juridical field of Human Rights. From the criticism of the way in which the childhood is constituted in the West and the perception of different conditions of social construction of the person, body and childhood among indigenous peoples, it produces indicative of problematization of the agenda of intercultural human rights in order to signal the relevance of the category person as the functional equivalent in intercultural dialogue to support of axiological inversion of indigenous children for children indigenous and possible repercussions of their rights. Afterwards, analysis of the political philosophies that ground the administration and the rights of children, with special highlight to the questioning of the limits of the Doctrine of Integral Protection regarding the treatment of cultural diversity, and propose complementary political philosophy called Doctrine of Plural Protection, founded on the principle of self-determination of the indigenous peoples and the values of equality, difference and protagonism. Discuss the trajectory of insertion of the debate about indigenous children in the Child and Adolescent Statutes (Law No. 8.069/1990), with specific considerations for Draft Bill No 295/2009, which seek to reflect on critical themes little discussed in the perspective of indigenous peoples and expansion necessary for children from the traditional peoples and communities.
Acesso aberto (Open Access)
Direitos humanos, tráfico de pessoas e exploração sexual de mulheres, em Belém-Pará-Brasil
(Universidade Federal do Pará, 2010-12-20) SMITH, Andreza do Socorro Pantoja de Oliveira; BELTRÃO, Jane Felipe; http://lattes.cnpq.br/6647582671406048
The trafficking in persons is a contemporary form of freedom constraint and intensively affects lives of women, as victims of this crime of human rights violation. To address this problem the international community adopted the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime. The Master’ degree thesis works with several trafficking in persons’ concept in international and national standards, giving evidence to their underlying concerns. It establishes a comparative study to verify the compliance of the first to the second standard, analyzing the domestic law and the international protocol. It is presented the relevant links between migration and trafficking in persons indicating the several form of traffickers´ action in different places of the world and, particularly in Belém – Pará – Brazil, where as pest the trafficking infests the gardens in which the path of trafficked women (known as flowers) report their experiences that reveal violation of human rights to freedom, since they were victims of trafficking for sexual exploitation. It indicates possible directions to combat the trafficking of women for sexual exploitation, since its analysis noted that the domestic law is insufficient to punish the mentioned crime. It testifies that the combating of trafficking in persons in Amazon Region will be effective if it is established under a domestic law in accordance to international Protocol and, especially, under public policies that guarantee human rights for women.
Acesso aberto (Open Access)
Educação jurídica indígena: superando a dicotomia pluralismo versus monismo
(Universidade Federal do Pará, 2015) ALBUQUERQUE FILHO, Armando do Lago; RODRIGUES, Saulo Tarso; http://lattes.cnpq.br/8585243462003260
The curriculum structure of legal education has been built from a monistic approach, opposing the pluralistic perspective of law. This research promotes a theoretical effort to overcome the dichotomy between the two theories, aiming to contribute with the initial elements and values for the development of an indigenous legal education founded both in the monism and in the pluralism as well. In order to fulfill this goal we used the deductive method and literature review to analyze the meanings of law from the state as opposed to the legal pluralism. It determined itself the categories of general analysis to perform the duties of a position in an application of the specific native legal education.
Acesso aberto (Open Access)
A eficácia das decisões de controle concentrado de constitucionalidade nos sistemas italiano e espanhol
(Universidade Federal do Pará, 2010) FREITAS, Juliana Rodrigues; MAUÉS, Antonio Gomes Moreira; http://lattes.cnpq.br/5100632338260364
The Italian´s and Spanish´s systems of concentrated control of constitutionality have features that distance them from the pure kelsen´s model and, at the same time, allow us to identify them with the North American´s model of constitutionality control. The assignment of binding effect, in horizontal and vertical planes, to the constitutional decisions, even if it is not an element used to identify, so immediately, the constitutional jurisdiction of the European countries, is, undoubtedly, one of its characteristic elements, and gives rise, in this context, to the figure of the previous binding. So for these precedents may be adopted in regard to the principle of equality in law enforcement, it is essential that requirements are defined in a reasonable and objective way, due to the Constitutional Courts gives effect binding to its decisions.
Acesso aberto (Open Access)
Jurisdição constitucional e precedentes vinculantes no Brasil
(Universidade Federal do Pará, 2011) MAGALHÃES, Breno Baía; MAUÉS, Antonio Gomes Moreira; http://lattes.cnpq.br/5100632338260364
The work provides some discussion regarding the binding effect, which aim to reconcile such institute within the practice of Brazilian judicial review, pointing out the importance of the constitutional interpretation made by the Supreme Court and the protection of fundamental rights. In said work, precedents are binding principles, which have gravitational force justified by the principle of equality in applying the law and the constitutional complaint is considered an important instrument for the interpretation of the binding precedent, capable of keeping the ways open for further distinguishing or reconsideration of prior decisions. Thus, the category that imposes the formal binding is the decision norm, which is a legal proposition able to sustain the ruling of the court on the (un) constitutionality of the act. We conclude that the refusal to give a broader transcendent binding effect indicates a strengthening of the diffuse control, allowing the interpretation and development of the precedents. Ronald Dworkin´s theory of law was chosen to support the conclusions of the study.
Acesso aberto (Open Access)
O liberalismo de princípios aplicado à judicialização dos direitos sociais fundamentais: uma proposta para a superação de limites de atuação do poder judiciário
(Universidade Federal do Pará, 2015-12-18) PAES, Carolina Bastos Lima; BRITO FILHO, José Cláudio Monteiro de; http://lattes.cnpq.br/7823839335142794
The 1988 Constitution of the Federative Republic of Brazil has enshrined the dignity of the human person as one of its fundamentals, and has brought forth a vast amount of fundamental rights and guarantees to be applied and implemented by the State, with maximum priority, as instruments for the fostering of this fundamental principle. Among the constitutionally guaranteed rights to the individual, are the fundamental social rights, which aim to provide basic material conditions to all individuals in order for them to draw up and pursue, in a free and conscious way, their individual life plan. However, the practical implementation of those economical and social rights has not sufficiently met the demands set by the human dignity principle, neither through legislative and administrative means nor in judicial seat. This happens because, more often than not, the existence of the social rights, if not their enjoyment, remain conditioned to the availability of enough public resources to cover the costs of its implementation. Starting from this problem, the current dissertation aims to improve the actions of the Judiciary in the exercise of its goal of guaranteeing solidity to the constitutional norms that define the fundamental social rights. Towards this end, theoretical support is found in the liberalism of principles, more specifically, in the theory of justice as equity, by John Rawls, with complement offered by the equality of resources, by Ronald Dworkin, and by equality of capabilities, by Amartya Sen, instead of the utilitarianism that guides not only the elaboration and execution of social policies, but also the judicial intervention in these policies, in the manner in which it often comes forward. The goal is to allow the diversion of the attention of the judicial authorities, until now focused on the collective well-being, towards the individual, in a way in which the limits of action of the Judiciary can be overcome, for, then, at least in this extraordinary way, the State cabe made to answer, in adequate levels, the basic needs of all individuals, in trune accomplishment of its constitutional duties.
Acesso aberto (Open Access)
Parâmetros para justiciabilidade do direito social à saúde: o caso do estado do Pará
(Universidade Federal do Pará, 2012-06-26) FERREIRA, Gabriela de Cássia Moreira Abreu; LOUREIRO, Violeta Refkalefsky; http://lattes.cnpq.br/3092799127943216
From the health care judicialization debate and their budgetary and public policies planning impacts, the research works on the assumption that the Judiciary should seek rational criteria in this kind of demand, proposing parameters for this task; also seeking to restore the balance between individual and collective aspects of health rights. Therefore, a constitutional and health law approach is presented, under the evidence-based medicine paradigm. The Brazil Federal Supreme Court jurisprudence on health social right is exposed and systematized, emphasizing the Public Hearing held in 2009 in this Court. Seeking to understand how and if this latest debate found echoes in regional and local reality, Pará State Court of Justice cases, tried between 2008 and 2011, were searched and compared with the previous analysed Federal Supreme Court jurisprudence; also exposing the demands’ characteristics from the following criteria: author species, legal representation, disease, applicants’ profile, demand results (and others), as well as the main arguments presented by the authors, defendants and judges. From our survey, specific health right justiciability parameters are proposed, influenced by Ronald Dworkin’s law as integrity theoretical framework, restoring the integration between public subjective right and collective right, as complementary nature to the right to health.
Acesso aberto (Open Access)
Pluralismo constitucional interamericano: a leitura plural da constituição de 1988 e o diálogo entre o supremo tribunal federal e a corte interamericana de direitos humanos
(Universidade Federal do Pará, 2015-10-19) MAGALHÃES, Breno Baía; MAUÉS, Antonio Gomes Moreira; http://lattes.cnpq.br/5100632338260364
The thesis argues for the Constitutional Pluralism as a theory better suited to describe and explain the interactions between the 1988 Federal Constitution and the American Convention on Human Rights. Said interactions present themselves through the precedents of both the Supreme Court and the Inter-American Court of Human Rights. The thesis posits the theoretical fragility and the contextual mismatch of approaches based upon the monism/dualism dichotomy. Constitutional Pluralism, in turn, suggests the heterarchical interaction between constitutional orders through reciprocal influences. The supralegalty of international human rights treaties and the deference to regional constitutional interpretations enables the 1988 Constitution and the American Convention on Human Rights, respectively, to influence the substantive content of the fundamental and human rights through the deliberative dialogue between precedents and by having the construction of the pro homine principle as an ideal interpretive guide shared by both. Although Constitutional Pluralism is to be considered the theory that justifies the plural reading of the Brazilian constitutional provisions, the Supreme Court, despite the citations of the Inter-American Court of Human Rights precedents, does not dialogue with them.
Acesso aberto (Open Access)
A proteção dos direitos indígenas: uma proposta estrutural para a incorporação do etnocídio no ordenamento jurídico nacional
(Universidade Federal do Pará, 2001) BITAR, Murilo do Vale; CASTRO, José Carlos Dias
The ethnocide is one of the biggest and most serious dangers that surrounds indigenous peoples. The Brazilian law, in the constitutional level as well as in the infraconstitutional level, do not protects Indians from that danger. Inquiring this matter in the light of basic necessities and human rights, this thesis proposes the inclusion, in the Brazilian positive law system, of ethnocide as a specific crime type, seeking, in the manner, a better protection to Indians and the cultures they depend upon, physically and spiritually.
Acesso aberto (Open Access)
Renúncia fiscal heterônoma de ICMS na exportação no estado do Pará
(Universidade Federal do Pará, 2012) SOUZA, Victor Renato Silva de; KZAM NETO, Calilo Jorge; http://lattes.cnpq.br/0615330668721075
O presente trabalho faz análise, sob a égide do federalismo, da renúncia fiscal heterônoma do Imposto de Circulação de Mercadorias e Serviços (ICMS) para exportação introduzida pela Lei Federal Complementar n.º 87 de 13 de Setembro de 1996, Lei Kandir, posteriormente posta pela Emenda à Constituição de n.º 42/2003. Aborda aspectos da autonomia federativa dos Estados Membros, detentores da competência tributária de ICMS, e procura esclarecer os conceitos de imunidade e isenção tributária, competência e autonomia para verificar a possibilidade de violação à autonomia dos Estado mediante usurpação de competência tributária, bem como verificar as perdas fiscais decorrentes da referida renúncia fiscal no Estado do Pará.
Acesso aberto (Open Access)
A responsabilidade civil objetiva como dever fundamental e sua incidência nas relações privadas
(Universidade Federal do Pará, 2012) SILVA, Adelvan Oliverio; LEAL, Pastora do Socorro Teixeira; http://lattes.cnpq.br/3244282344643324
The work examines sociological and philosophical foundations of objective liability, specifically the responsibility by the "risk". it assumes that the way most of the civilian doctrine analyzes the institution mitigates the potential for strict liability to be understood as an element of organization of functionally differentiated, characterized by excessive complexity and the radical contingency that permeate the communication made between social systems, among humans and between these and those. it concludes that the risk is an unsurpassed feature of complex societies, and analyzing the consequences of that for the formation of the human been who can commit to a political life, it proposes, based mainly on the philosophical studies of Paul Ricoeur and dogmatic constitutional robert alexy, that liability is objectively high level legal and moral duty of the fundamental subjects of law, primarily in the bulge between the relations among individuals.
Acesso aberto (Open Access)
A tutela coletiva extraprocessual: o diálogo institucional como instrumento de atuação do ministério público para a concretização dos direitos sociais
(Universidade Federal do Pará, 2015-08-14) SILVA, Sandoval Alves da; MAUÉS, Antonio Gomes Moreira; http://lattes.cnpq.br/5100632338260364
The thesis argues for the progressive implementation of the human rights (gradualist reasoning) via institutional dialogue conducted by the public prosecution service that impacts directly on the „separation of powers” dogma through interaction between the branches of the government. To this end, it resorts to practical examples, theories and normative arguments. The thesis demonstrates the nature of the public prosecution service as a public power with constitutional autonomy and political-bureaucratic capability (democratic and moral legitimacy) to engage in procedural rounds to protect public interest and social demands aiming to fulfill the social rights via political accords that serve as a temporary last word about social conflicts. In order to carry out this task, the institution counts on procedural instruments such as notification, request, recommendation, accords of implementation, etc. Such instruments allow the institution to provoke, initiate, coordinate, conduct and carry out a dialog with the other branches of the government in order to reach a political accord that can fulfill the social rights. This action takes place when the state violates human rights either because it is involved in an excessive activity or because it is in a state of latency due to lack of the necessary specification of the social rights for extrajudicial enforceability and judicial enforceability. Thus, dialogue is integral in cases of default by either violation due to excess or omission of material benefits that are essential to cater for the human needs under the state responsibility in order to meet the immediate continuous and gradual obligation of providing definition, organization, proceduralization, specification and implementation of social rights to ultimately fulfill the distributive justice through the defense of the common, indivisible or collective goods and their individual appropriation scheme.