A importância do processo estrutural como um canal de efetivação dos direitos fundamentais frente ao neoconstitucionalismo no Brasil: reflexões sobre a ADPF nº 635

Abstract

The importance of the structural process is researched as a method of effecting fundamental rights in view of the characteristics of neoconstitutionalism, with the objective of verifying its implementation effects in the Arguição de Descumprimento de Preceito Fundamental (ADPF) nº 635 in the solution of the public security crisis of the Rio de Janeiro state. In view of this, we seek to know the historical panorama, the emergence and characteristics of neoconstitutionalism in order to understand the current behavior of the Federal Supreme Court (STF), specifically, in its performance in public policies. We study the consequences of this judicial action and the parameters used in an attempt to better fulfill the needs of Brazilian society in the face of the idea of separation of power and legitimacy. Added to this, we sought to understand the historical triggering of the idea of structural process and its characteristics, as well as demonstrating the beginning of the manifestation of this new procedural tool in the Brazilian legal system. Lastly, we seek to understand the behavior of the STF in the creation of the Center for Alternative Litigation Solutions (Cesal) in light of the emerging need to create means capable of facing structural actions such as ADPF nº 635. In this sense, the context is analyzed of the appearance of the argument, as a result of the ineffectiveness of the decision of the Inter-American Court of Human Rights and the ills that plague the population of Rio de Janeiro. Furthermore, the effects of the implementation of ADPF nº 635 and its challenges are analyzed. It is concluded that, aware of the current limitations, the idea of a structural process can effectively collaborate to create spaces for debates and negotiations between those involved in the effort to comply with the constitutional text.