Análise da possibilidade da aplicação dos efeitos materiais da revelia contra a fazenda pública em matéria do direito fundamental à saúde

Abstract

The existence of procedural prerogatives granted to the Public Treasury in court conditions theinherent conflict in the advocacy of the fundamental rights of those under jurisdiction, in view of the conditions of support of each of the public entities within the federalist and hierarchical models in the financing of actions or health services, which should be offered in a universalized manner by the SUS to the community in an indiscriminate manner. Despite this, principled biases such as the public interest are arguable as legal-material reasons that hinder the positive provision of the State in addressing public policies aimed at the matter. The general objective is to question to what extent the material effects of the default against the Public Treasury in court could be an obstacle to the judicialization of the fundamental right to health, conditioning the mechanisms for addressing the matter by the Judiciary to reduce the disparity of private individuals in relation to the prerogatives granted procedurally to public entities. Furthermore, there are the following specific objectives: (I) the conceptual delimitation of the phenomenon of default, the characterization of the material and procedural effects of the phenomenon, as well as the exceptionalizing hypotheses of occurrence of the material effects; (II) the conception of a concept of Public Treasury based on the norms of substantive law, the application of the principle of equality before private parties in view of the material and procedural prerogatives of the Public Treasury in Court and the delimitation of the main procedural prerogatives conferred to public entities in the CPC; and (III) the contextualization of the right to health with the legal perspectives intertwined with the constitutionalization of said right by the establishment of a decentralized and universalized SUS, the understanding of the phenomenon of judicialization of the matter with the rationalization of the thesis of passive solidarity explained in the judgment of Theme 793 by the STF, as well as the quali-quantification of the data released by the CNJ, between the years 2020 to 2024, on judicialization in public health. The methodology adopts a qualitative approach, with descriptive and exploratory objectives, of a theoretical nature, using case law and documentary research, based on empirical data. In the first stage, the databases of the higher courts are consulted, applying search filters for specific keywords, such as “right to health”, “Public Treasury”and“material effects of default”, to identify precedents, as well as decisions relevant to the topic. In the second stage, documents and statistical data provided by the National Council of Justice are analyzed, mainly extracted from the Statistics Panel of the Judiciary, between the years 2020 and 2024, for actions linked to public health. It is concluded that the conflict is tangible to the obstacles identifiable from an extrajudicial perspective, although the analysis of specific cases demands weighing up different interests by the Judiciary, as well as other conditions in the procedural sphere that hinder the diligent assessment of cases, although it is noted that the context outlined is not necessarily linked to the issue of the inadmissibility of the requests made in the action brought against the Public Treasury in guaranteeing the dignity and rights of those under its jurisdiction.