A Constituição e os direitos fundamentais : do acesso à justiça e suas limitações no Brasil

AUTOR(ES)
DATA DE PUBLICAÇÃO

2006

RESUMO

This work was developed with the use of the description-deductive method, not missing the adoption of the inductive method in relation to some of its parts. The subject is not new, but is still up to date to the present time, being the study object as a way to give some contribution for improving the access to justice. One still investigates the past so that it can explain, even partially, the current conditions of the system for litigation resolution, its deficiencies and its causes, as well as for the formularization of improvement perspectives. A constitutional reading for the characterization of the access to the basic justice as the right of an individual was adopted, endowed with dignity and first reason for all constitutional order. The results of the research indicate that the process reforms taken in the two last decades and the recent constitutional amendments aiming modification in the Judiciary Power demonstrate the concern of the society and the legislator with the improvement of the jurisdictional guardianship, to make it more effective, economical and fast. Most of the criticism we have heard and known about the Brazilian Judiciary regarding its efficiency for the solution of conflicts is deserved, exceptions made. The results also show that the biggest problems in respect to the cost of the demand related to the expectation and its result and, still, to the quickness and effectiveness of the process, as well as the excess of demands submitted to the appreciation of the judiciary power, is in part caused by the existence of anachronism and incompatible laws with the current society. There is a need to modify the focus of the discussions, predominantly economic nowadays, prioritizing the human being. The solution of the conflicts must be most as complete as possible. The expenses of the State with the jurisdictional activity must not generate too much concern with its consequences in the economy, it must be seen as an investment in an essential activity for the social pacification and the maintenance of the normality in the institutions. One must keep in mind that the Judiciary Power does not exist to increase the profits and the competitiveness of companies and investors, as some it is proclaimed between the lines, not being one of its functions. The right and the justice of the decisions must be preserved, thus understood the solutions compromised to the accomplishment of the elected values for the society in the Constitution. Only the procedural and structural reforms and the increase of magistrates and servers do not solve all the aspects of the problem. It is necessary to stimulate alternative methods, for example the arbitration, and techniques that aim the consensual solution for the litigations, like the mediation and the conciliation. The prevention of the litigations is of utmost relevance, reducing the litigations in the public power. The jurisprudence must be respected by the public administration and the private parties. The ones who make the laws cannot be the first ones to disrespect them, but on the contrary, must set an example to the society on how to respect them.

ASSUNTO(S)

direito constitucional direitos civis tutela jurisdição constitutional law civil rights jurisdiction

ACESSO AO ARTIGO

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