Navegando por Assunto "Direito fundamental"

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Uma análise das múltiplas violações das garantias fundamentais pela negativa do Registro Civil
(Centro Universitário do Estado do Pará, 2019-06-03) Brito, Patrícia Araújo de; Fadel, Anna Laura Maneschy; http://lattes.cnpq.br/6679138259126229; Mello Neto, Ridivan Clairefont de Souza; http://lattes.cnpq.br/2238109792714388
This project aims to analyze the violated rights of eight indigenous Waraos, born in Belém, due to the denial in the making of the birth registration, by the Brazilian authorities. This occurs due the lack of efficacy given to the refugee protocol as a valid document to identify the refugee and to assure the right of registration. The research shows that the legal documents allows the regularization of the Venezuelan immigrant in the Brazilian territory, showing that the refugee protocol is a provisional document to identify taw refugee, according to the “Resolução Normativa CONARE nº 18” from 30/04/2014, Lei nº 9.474/97, Law nº 13445/17, as well as the Presidential Decree nº 9277/2018. Besides, this article aims to show, by studying the right to citizenship and criteria used by Brazil to grant this right, that those children are considered as Brazilians, but they don’t have these right granted, once the right is given by the registration act, which is important for the national data base of the citizens. Therefore, it’s argued that those individuals are in a condition of statelessness, which is the understanding utilized by international documents, the Inter-American Human Rights Court in their decisions and the High Commissioner of the United Nations for Refugees in its Resolutions. In conclusion, the right of registration is a basic human rights that allows the efficacy of other rights. For that matter, the registration act is a obligatory document, as can be seen in the Law of Public Registration, nº 6.015/73, International Covenant on Civil and Political Rights (1966) and the Convention on the Rights of the Child (1989), and so the denial in elaborate the document violated several rights, such as the right to personality, to citizenship, to the name and other social rights.
O caso Olga Benário sob a Fórmula de Radbruch: uma análise jurídica
(Centro Universitário do Estado do Pará, 2019-06-04) Todde, Monique Melo; Nascimento, Yúdice Randol Andrade; http://lattes.cnpq.br/2711805209472107; Alves, Verena Holanda de Mendonça; http://lattes.cnpq.br/6473788796313910
The present case study deals with various themes, all of them linked in a philosophical concept corresponding to a main theoretical reference. The main idea came from the knowledge and acess to the full content of the Habeas Corpus n° 26.155/1936 – Case Olga Benário, in diligences next to the File Section of Coordination of Document Management and Institutional Memory of Federal Supreme Court, wich is attached to this work. The work was, in essence, directed to the letter that corresponds to “Five Minutes of Legal Philosophy”, a circular that Gustav Radbruch addressed to the Heidelberg University academics, published in the edition of september 12, 1945. The effective concept of justice is discussed, the historical background linked to the theoretical reference and if the case was judge correctly back them, or whether it could be done otherwise. The concept of Access to Justice in a context of clear regime of exception in the face of the historical aspects that guided the trial and its due circumstances, is a striking feature of this extremely controversial theme for his time, mainly due to the jurisdictional burden conferred by the STF. For finish, the question will be respond by the premise that unjust law is not law. The goverment of Getúlio Vargas complied the law, treating the judgment of Olga Benario as unilateral, so that it will be argued that justice did not occur in this trial.
Desoneração fiscal sobre os medicamentos e as propostas de emenda constitucional em trâmite no congresso nacional: uma análise em prol da consolidação do direito fundamental à saúde no Brasil
(Centro Universitário do Estado do Pará, 2019-06-03) Ayres, Yasmin Corrêa; Pamplona, Karla Marques; http://lattes.cnpq.br/5228348047968891; Silveira, Alexandre Coutinho da; http://lattes.cnpq.br/7902423151331560
According to the Federal Constitution and the National Tax Code, taxes are compulsory payments made by the taxpayer of a tax obligation, which are totally linked to the human being's need to live in society, since they finance that the human being lives. It turns out that Brazil has one of the highest tax burdens on products, services and other factors, such as medicines. This should be repaired or controlled, with the purpose of preserving the right of access to health of the Brazilian population, given the global nature of the health problems they face, as well as ensuring the existential minimum of each family that uses private health, due to quality of public health. Faced with the constitutional guarantee, both of taxation and the right of access to health, there must be a balance between them, when a fundamental guarantee is violated. In this scenario, it is worth highlighting the actions of the Proposed Amendments to the Federal Constitution that will be cited throughout this monograph, which are being structured so as to include, in the fight against the infamous tax burden on medicines, as well as the guarantee of access to health in Brazil. The research investigates the limits of the tax incidence in the country, to develop forms of relief on essential goods aimed at the achievement of good public and private health management and the global guarantee of access to health.
O direito ao esquecimento enquanto direito fundamental e sua aplicação no ambiente virtual
(Centro Universitário do Estado do Pará, 2019-06-18) Carvalho, Caio Matheus de Santana; Freitas, Juliana Rodrigues; Bastos, Elísio Augusto Velloso
The present study have as goal analyze the form which the Right to be Forget has developed inside the doctrine, as well as show how your application was formulated in the digital environment, and how the idea of informal self-determination could help to minimize the inherent risks of the internet, and provide a major data control by individuals. Therefore, will be analyzed the jurisprudence, in particular, the google spain case; and the normative devices related. The relevance of this academic research is to foment the academic debate about the Right to Be Forget in digital environment, owing to it’s aplication has already been recognized by the superior courts, however, in face of legislative omission, there are no discretion for it’s application.
A indústria pornográfica e a subjugação da mulher: uma crítica ao pensamento liberal como perpetuador da dominação masculina
(Centro Universitário do Estado do Pará, 2019-06-03) Maribondo, Rebeca Lopes; Fadel, Anna Laura Maneschy; http://lattes.cnpq.br/6679138259126229; Azevedo, Thiago Augusto Galeão de; http://lattes.cnpq.br/5496674400879290
This present work will analyze the question of female subjugation related to the pornographic industry, influenced by the liberal theory in perpetuating the restriction of women’s rights with regard to freedom and human dignity. It is intended to verify the results of pornography in the lives of women, whether pornographers or not, in the sense that free movement of pornographic product brings determinant social visions about the sexual relation and the way in which the woman reacts to it, being an irreversible factor in the increase of sexual violence against the female sex. For this, the liberal theory will be analyzed in order to develop the idea of the negative influence of the contract with respect to the false perception that women fully exercise their freedom, which generates the imaginary of them being responsible for the acts of third parties against their dignity. It will be defended the position that the pornographic industry, widely authorized through the contract of liberal theory, is a fundamental instrument in the perpetuation of patriarchy and, consequently, in the curtailment of fundamental human rights of women. This study is primarily theoretical, with critical analyzes of doctrines from books and scientific articles, with statistics analyzing the consequences of consumptions of the pornographic product. The main objective will be to see how patriarchy, liberal theory and the pornographic industry relate to continuing the male domination over the female sex in such an intense proportion as to irreversibly violate women’s fundamental rights.
Os limites do aborto no ordenamento jurídico brasileiro
(Centro Universitário do Estado do Pará, 2019-06-26) Medeiros, Elizabeth Parente e Silva de; Brito Filho, José Claudio Monteiro de; http://lattes.cnpq.br/7823839335142794; Souza, Luciana Correa
The present monography that concludes the Bachelor's degree in law aims to give an overview on the matter of abortion in Brazil, it's modalities and evolution, offering some insight on its implications on the legal order. The goal is to demonstrate the necessary path towards the decriminalization of abortion as the only possible path possible, because it is necessary to the full realization of women's fundamental rights. In this sense, the discussion raised in this research is subsidized by a methodology of a basic nature, based on theoretical and bibliographic explorations that make possible the understanding of the theme and justify it's social, academic and professional relevance. The paper is structured in three chapter’s, in the first chapter we examine the main concepts of abortion and its legal treatment; in the second, We analyze the theses raised by Ronald Dworkin in his work the domain of life, as well as pass through liberal and conservative conceptions regarding the abortion theme; in the third chapter, an analysis is made of the jurisprudence of the country and of the Ação de Descumprimento Fundamental (ADPF) n° 442, which may culminate in the decriminalization of voluntary abortion until the 12th week, ending with a brief estimate of the judgment that has not yet occurred.
Litigância climática e desmatamento na Amazônia
(Centro Universitário do Estado do Pará, 2023-03-16) Carvalho, Emerson Benjamim Pereira de; Fonseca, Luciana Costa da; http://lattes.cnpq.br/3383269305393137; Benatti, José Heder; http://lattes.cnpq.br/6884704999022918; Reymão, Ana Elizabeth Neirão; http://lattes.cnpq.br/7523845838580356
This master's thesis proposes a study regarding the reasoning behind the decisions of the Federal Supreme Court and the Superior Court of Justice, issued in civil proceedings, related to litigation about deforestation in the Amazon, in order to find out what are the parameters and criteria adopted by them Courts to identify and judge these conflicts, examining whether they have an argument from the point of view of anthropogenic climate change. The issue is relevant, as the STF and STJ are the country's courts in charge, respectively, of interpreting the Federal Constitution at the highest level of jurisdiction and standardizing the exegesis of federal legislation; the themes of degradation of the Amazon Forest, the greenhouse effect, global warming and anthropogenic changes in the climate are of concern to the entire world, in view of the risks to climate integrity and species survival; and because deforestation in the Amazon is the factor that most contributes to the emission of greenhouse gases in Brazil and consequent national global warming. The objective of the investigation is to know if the STF and the STJ perceive these conflicts as a climate dispute and what are the legal arguments that make up the reasoning of the decisions. The methodology used made use of the deductive method, a qualitative approach for the discussion of the subject, based on a bibliographical review with the obtaining of doctrine in scientific articles, books, analysis of data and documents, legislation, jurisprudence and research on the websites of the STF and STJ. The research revealed that most of the decisions of the STF and STJ do not bring a climate justification, as they do not address whether or not the judged conflict is a climate dispute and, when they are faced with a case of climate change, they do not mention whether it is of the direct or indirect type and do not discuss the legal climate regime. Therefore, it is important that the STF and the STJ judge these disputes, using a climate basis, given the obligations to justify judicial decisions, to act in enviromental education and to act in public awareness for the preservation of the environment, to play a prominent role in climate governance, to provide effective and efficient judicial protection, to act in a qualified manner in the climate emergency and protection of the Amazon Forest, enabling the continuity of all forms of life on planet Earth.
A negação do direito à moradia aos núcleos urbanos informais: os despejos forçados à luz da jurisprudência do Tribunal de Justiça do Estado do Pará
(Centro Universitário do Estado do Pará, 2019-06-03) Figueiredo, Renata de Cássia Brito; Lima, Luciana Albuquerque; http://lattes.cnpq.br/3927152172709201; Faro, Liandro Moreira da Cunha; http://lattes.cnpq.br/4901845729722660
This paper aims to demonstrate how the right of housing, a social right recognized in the Constitution and in the Internacional Covenant on Economic, Social and Cultural Rights, is applied in the jurisprudence of the Court of justice on the State of Pará, when dealing with lawsuits that implicate on forced evictions of a amount group of pleople. It was a monograph, coming from a bibliographical research of description of the doctrinal and jurisprudential positions on the proposed subject. In order to fulfill its purpose, other sources of information were used, emphasizing books, scientific articles and national and international legislation. However, this paper pays more attention in the analyzes of the decisions on lawsuits cases in the paraense court of justice. In this investigation, was analysed how the right of housing is recognized in the national legislation, included in constitution by the constitucional amendment number 26/2000, and its international protectional, especially in the Internacional Covenant on Economic, Social, and Cultural Right, with its the General Comments numbers 04 and 07. In the same way, was analyzed what is an forced eviction, and how it is prima facie incompatible with human rights. Lastly, was analyzed some decisions of the Court of Justice of Pará, about forced eviction on an amout group of people, using the directions predicted on the general Comment number 07. As result, the conclusion was that the Court of Justice of Pará don’t use the directions found in the Covenant on Economic, Social, and Cultural Rights and in its General Comments nº 04 and 07.
O poder judiciário como indutor de políticas públicas de saúde
(Centro Universitário do Estado do Pará, 2017) Barros, Elaine Cristina Lopes; Dias, Jean Carlos; Brito Filho, José Claudio Monteiro de
This master’s thesis proposes a study about the Judiciary’s role in the creation, formation and implementation of public health policies. It demonstrates that the Public Power through public policies must guarantee the health to all citizens, and that, from the transforming role of the Judiciary, as part of a democratic-participatory State, if the State, by means of other Powers, refuses to provide this constitutional right, the population has the possibility to avail itself of the jurisdictional safeguards apt for the defense of the right to health for the realization of its Right, so that the means necessary for its dignity are guaranteed. In these terms, this Power has been led to adjust by means of decisions that oblige the Executive Power to attend to the litigant's claim, either by providing him with medicines or by offering the opportunity to perform exams, surgeries and treatments. It is known, however, that such participation runs against various interests resulting from the principle of separation of powers, from administrative discretion, as well as from obstacles to its implementation by economic and financial claims, as well as from non-recognition of individual ownership of this right, and these arguments are usually managed to prevent or reduce said participation. It is evident in the study that none of these arguments is sufficient to limit the interference of the Judiciary in matters related to the right to health, so that such participation becomes necessary for this fundamental right to be fully guaranteed, according to several decisions made by the Federal Court of Justice. It is also evident that, although recently this Court has recognized the general repercussion in two extraordinary appeals that deal with the supply of high-cost drugs not available in the Unified Health System (SUS) list and drugs not registered in the National Agency of (ANVISA), where the votes cast by Ministers Barroso and Fachin have put in check all this expansion of the limits of the Judiciary, which is exactly in the need of protection of fundamental rights, is believed in a final judgment capable of allowing, by means of the arguments set out here and the decisions made previously by the STF, that this extension is not deprecated, since the achievement of the individual as a human being is the first objective of the State, which is why it must be fully and effectively guaranteed. Considering that the aforementioned extension should not be unrestricted, given the limits imposed by the rules themselves and in order to avoid any abuse of power, criteria capable of guiding judgments handed down by magistrates will be demonstrated.
Política pública de educação para adolescentes infratores do estado do Pará e a realização do projeto de vida
(Centro Universitário do Estado do Pará, 2017) Silva, Gláucia Kelly Cuesta da; Brito Filho, José Claudio Monteiro de
The present study analyzes whether the public education policies aimed at professionalization aimed at adolescents who are responsible for infractions in the State of Pará, who comply with the socio-international measure, contribute to the achievement of their life project. To do so, it was necessary to tackle the problem from four thematic axes: education, understood as a means of emancipation and transformation of the human being; Socio-educational measure as a response of the public power to the transgression of the law; Existing public education policy for the recovery of socio-descendants and their reintegration into social life; And, finally, the project of life, determined in childhood and adolescence. Likewise, the information obtained from the socio-educators of the Centro Socioeducativo Feminino do Pará (CESEF) was used to establish the relationship between the vocational training received at the hospitalization unit and their life plans for post-compliance with the socio-educational measure. In order to achieve this goal, an initial analysis was made of the protection granted to the adolescent offender under the Brazilian legal system, with special emphasis on the socio-educational measure of hospitalization, given the empirical research conducted at CESEF. Secondly, education was analyzed as a mechanism of transformation and emancipation of the human being, in the light of Rawls's theory of equity, as a guarantee of the reach of the project of life and indispensable for the achievement of the objectives of socio-educational measures. From these subsidies, the analysis of the public policies of education for adolescent perpetrators of infractions of the state of Pará that carry out socio-educational measure of hospitalization, being emphasized the education with professional aims. In sequence, an analysis was made around the project of life and the way it gained importance in the study of law as a human good. Finally, it was sought to establish whether the provided professional education allows or not the achievement of the life project of these adolescents, leading to personal and professional achievement.
A proibição da educação domiciliar no Brasil e o consequente prejuízo à liberdade de ensino
(Centro Universitário do Estado do Pará, 2019-06-25) Silva, Ana Carolina Rodrigues da; Bastos, Elísio Augusto Velloso; Sá Junior, Adalberto Fernandes
This study aims to analyze how the prohibition of homeschooling violates the parents’ right of having freedom to decide about the form of education to be provided to their children. Through the analysis of the legislative and constitutional history in the Brazilian context about the subject, it was possible to notice that homeschooling was not always considered exceptional and was constantly permitted by the legal system, as well as it represented a form of teaching constantly used by the wealthiest families. It was found that there is an international tendency to permit the practice, by analyzing the international law and how the other countries deal with the situation. In another moment, brazilian cases of families that chose homeschooling were presented, demonstrating the legal insecurity caused by the lack of specific provisions in Constitution about the practice, emphasizing the judgment of the Supreme Court about the extraordinary appeal n° 888815, which determined the constitutionality of the activity, establishing the need of its regulation, demonstrating the inclination to permit the activity also at the national level. Finally, the topography of the conflict was analyzed considering the rights involved in the situation, taking into account the aspects of the right to education of minors, the freedom of parents' to choose the best way to teach their children, as well as the role of the State as guarantor of the minor's social rights. It was possible to conclude, therefore, that utilitarian homeschooling, in which parents do homeschooling with the state supervision, is configured with the best way of guaranteeing all rights present in the context.
O uso dos precedentes judiciais no brasil: uma análise crítica a partir da teoria do direito e da argumentação jurídica
(Centro Universitário do Estado do Pará, 2014) Lima Filho, Eduardo Neves; Dias, Jean Carlos; http://lattes.cnpq.br/3343295176890460
Gradually, we see the closeness between the legal systems of common law tradition and the civil law tradition, a true fusion occurring between these traditions. In other words, increasingly we see continental law working with judicial precedents and common law allocating matters to be regulated by laws or codes. The Brazil, despite unquestionably being a country of civil law tradition, each day begins to give more importance to judicial precedents, however, apparently without concern for the consolidation of institutions and mechanisms underlying a theory of judicial precedent. In this context and based on the democratic rule of law and concern for the protection and enforcement of fundamental rights of the democratic state and the containment of state arbitrariness, especially the arbitrariness in the Judiciary, we will seek to answer the question of whether the incorporation of a theory of judicial precedents in the Brazilian legal system corresponds to mere procedural technique, which may or may not be present in the legal system, aiming, among others, to speed up the judicial or corresponds to democratic requirement in the rule of law and has significant role in the system legal, independently of legal theory adopted, considering that these always relate to a theory of legal argument, which is anchored to some degree on a theory of judicial precedent. To do this, this paper will be the bibliographic research, among which the analysis of the works of Ronald Dworkin and Neil MacCormick, especially with regard to their contributions to the development of legal arguments in the context of judicial precedent.
A utilização do material genético descartado como prova no processo penal e a não autoincriminação
(Centro Universitário do Estado do Pará, 2019-05-30) Souza, Sabrina Brenda de Oliveira; Lima Filho, Eduardo Neves; http://lattes.cnpq.br/6648186048235225; Nogueira, Rafael Fecury; http://lattes.cnpq.br/7341684103082113
This work aims to emphasize the figure of the accused within the criminal field, regarding the principle of non-self-incrimination, also known as Nemo Tenetur se Detegere, a development of the right to freedom against the force and punitive power of the State. This principle will be applied to the means of obtaining evidence, and in specific, DNA expert evidence. Thus, this study sheds light on the defendant's right to oppose the criminal justice system, in accordance with the principles of Human Dignity and the Federal Constitution of 1988. The debate specifies the circumstances of the DNA test even with the refusal of the passive subject to collaborate. The objective is to discuss the motivation and consequence of the relativization of the right to non-self-incrimination, in an attempt to find a solution that better reflects justice in the concrete case, without unreasonably authorizing unlimited state action, or impunity. In this sense, the work was done from the bibliographical analysis, from the doctrines of the criminal field, and from Brazilian jurisprudential review.