Tutela coletiva de urgência: da individual à coletiva - uma proposta de sistematização

AUTOR(ES)
DATA DE PUBLICAÇÃO

2009

RESUMO

Time directly reflect in the quality of the installment of the jurisdictional, individual or collective tutelage. It has been essential to its accomplishment, for the full achievement of its values, particularly the Security, and it is highly harmful to its effectiveness. If there is a health Time, there is a pathological one as well. Neutralizing these evils without affecting secular guarantees of Democratic Rule of law is imperious not only to give rights to whom it is deserved, in the suitable time and place, but also so that the State completely fulfills the mission that It called for itself, which is to state the right in the occurring cases and thus to carry Justice through. The urgency tutelages appear, in this context, as a manner for the Democratic Rule of Law to accomplish its objectives previously established constitutionally, as that integrates the roll of jurisdictional tutelages meant to take care of the necessities of the material rights, with the objective of neutralizing those evils from Time. These tutelages will be so or more efficient as they are better systematized in a proper, unified and harmonic legal regimen, in which the urgency receives a treatment capable of effectively moving away the risks from damage to a right, individual or collective, to a jurisdictional tutelage corresponding to the yearnings of the Democratic Rule of Law. This systematization will be possible as the urgency tutelages, conservative and satisfactive, exhibit the same structure, supported by the urgent situation, allowing the affirmation that essentially they do not differ. Either in the individual dimension or in the collective one, the urgent situation, thus placed, displays an substantial, dynamic and changeable element, which consists of periculum and fumus, and a static and formal element, constituted of the procedural structure of these measures, in any provisionality and instrumentality, beyond a finalistic or teleological element: the prevention. From a collective perspective, the urgent situation does not modify itself, but its elements gain connotation if not diverse at least informed by diverse constitutional values. Although conceptually urgency does not manifest differently in the individual and collective grounds, unquestionably the urgency that marks the trans-individuals category of rights or interests presents high social repercussion, not only because it involves a great number of people but also for the nature of the right or interest in question. Dealing with the collective urgency situation, the jurisdictional body must consider an intrinsic urgency in the collective rights, for its dimension and constitutional value. In the same way one should considerate that they will face evident molecular conflicts that involve rights only understandable collectively, demanding from the Judge a proactive position and not simply reactive, besides the unusable and extra-patrimonial character of the meta-individual rights, mainly when facing essentially collective rights. Notwithstanding, the management of collective urgency situations handles itself in a similar way to the individual ones, through the conservative and satisfactive tutelages. The jurisdiction, as the capacity to carry through the values of the Democratic Rule of Law, constitutionally predisposed, must be equipped with adequate and sufficient ways to neutralize harms created by Time that defy its capacity to carry its self-imposed objectives through: to give the right to whom it is effectively due, in the precise time and place, either in the individual or in the collective dimension. This phenomenon that currently occurs before the Civil Procedural Law, demanding at least a better enunciation with the material right, for a optimum nearing, so that its instruments and institutes are able to fulfill their desideratum, in order to reach an equal and fair process, which is conciliated with the needs of the material right and is apt to provide the best and faster concretion of the right for the ones it is due

ASSUNTO(S)

tutela de urgência urgency tutelage tutela coletiva tutela jurisdicional -- brasil acoes coletivas (processo civil) -- brasil tutela antecipada -- brasil collective tutelage direito processual civil

ACESSO AO ARTIGO

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