Advocacia pública na solução consensual de conflitos: tutela dos direitos fundamentais por vias alternativas à jurisdição

Abstract

This dissertation aims to analyze the forms of legal protection of fundamental rights by the Public Attornment, especially when exercising it in consensual solutions of conflicts. The obstacles for the State to reach a consensus are investigated, reviewing a traditional analysis of the apparently impeditive arguments, such as the principle of legality and the unavailability of the public interest and its supremacy over the private. The so-called alternatives to the jurisdiction are studied, notably mediation and conciliation, to include their respective procedures and the participation of the State in such mechanisms of consensual solution. It is based on the premise that the exercise of jurisdiction should not always be the chosen way of composition, especially in view of the high cost of the state machine, its intrusive delays, as well as the possible legal fragility of the argument to be defended in court by the Public Administration. Likewise, a critical institutional analysis must be carried out, namely that Public Attornment should approach State Attornment, not simply Government Attornment, always through a framework structured by career members, able to guarantee respect for principles of the Federal Constitution and, thereby, provide greater protection to the primary or collective public interest, instead of the sole and exclusive defense of the secundary or economic public interest of the legal entity presented. It is based on the premise that Public Advocacy, as an essential function of justice, can contribute in various ways to the promotion of fundamental rights, as well as in the development of public policies of the most diverse types, not limiting its action to the verification of legal analysis - formal in accordance with the rules of order, but through an active participation in the processes of formulation, decision, implementation and evaluation of those. The methodology used in this work focuses primarily on bibliographical research, considering the eminently theoretical nature, consisting mainly of reading and examining the referenced works.