O mandado de injunção e o reenvio prejudicial : mecanismos de fiscalização da constitucionalidade a serviço da democracia?

Abstract

The present work will seek to investigate the injunction and the reference for a preliminary ruling as mechanisms that (may act) as operatives of a constitutional control and which may have the potential to allow greater democratic participation in the Brazilian and European Union jurisdictional context. The research is related to the concentration area of the PPGD of UNISC, in the line of Contemporary Constitutionalism of the program, as well as the research carried out at Uminho in the European Union Law Master, more specifically in the Research in Studies in European Union law. The research extends to an analysis of how the two factors contribute, or contribute, to the increase and defense of democracy, in its material dimension, with the realization of fundamental rights in each context. Thus, the research problem focuses on the following questions: 1) Do the injunction and the reference for a preliminary ruling function effectively as mechanisms for reviewing constitutionality? Likewise, they may laboring materially as guarantors of fundamental rights proclaimed in each of the jurisdictions called into play? 2) Do these mechanisms serve as instruments to deepen the democratic exercise? The hypothesis to be worked on in this research is based on the idea that, while preliminary ruling acts as an essential mechanism for the exercise of some constitutionality control at Union level, namely in terms of concrete, incidental and diffuse supervision through of validity that makes it possible, contributing to the establishment of a judicial review sui generis, the injunction, especially for the way it was treated by the legislature and the positions adopted by the Courts, goes in the opposite direction, or at least it achieved the same success as the preliminary reference. Similarly, it will seek to outline the contours that both institutions have in their legal systems, in order to demonstrate the ability they have, or could have, as enablers of democratic participation by seeking the enforcement of rights and guarantees brought by the respective constitutional texts that are in the two latitudes under consideration. To answer the questions outlined in this research, the hypothetical-deductive method will be used, as well as the method of monographic procedure, because it is thoroughly discussed about the chosen theme. Finally, we use the technique of bibliographical research through indirect documentation, which seeks elements for the investigation of the theme in specialized books, scientific articles in legal journals and in the national and European regulations. The results indicate that the injunction has not served the originally intended purposes, as well as has not helped the Brazilians in the search and implementation of fundamental rights and in the broadening of democratic participation, while the preliminary references, even with some strings attached and within. Some limitations have served well as a mechanism for abstract control of constitutionality and have enabled, albeit indirectly, European citizens to participate in the democratic game at Union level.