Litigância de interesse público: adequação e efetividade da tutela jurisdicional no âmbito do controle judicial de políticas públicas

Abstract

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.