A conformação jurídico-constitucional da situação de excepcionalidade no Brasil e o controle judicial do Supremo Tribunal Federal frente às medidas de emergência sanitária e à necessária proteção aos direitos fundamentais.

Abstract

The present dissertation has as its theme the judicial control of the Federal Supreme Court against the Provisional Measures edited by the federal government to face the health emergency, proposed based on the crisis, during the duration of the state of calamity related to the Coronavirus pandemic. The central question presented in this work is: how the Federal Supreme Court, during the duration of the state of calamity related to the Coronavirus pandemic, has positioned itself and what arguments it uses in the reasoning of its decisions regarding the Provisional Measures edited by the federal government, proposals based on the crisis, during the duration of the state of calamity, when the possibility of restriction of fundamental rights is at stake? To accomplish this task, the hypothetical-deductive approach method, the analytical procedure method and the bibliographic research technique will be used. In this way, it starts from the hypothesis that the Federal Supreme Court directs its reasoning to the necessary guarantee of fundamental rights, especially those of an individual nature, which makes even more evident the fact that the crisis coping model adopted by the Brazil was not the state of exception, and therefore it is not possible to suspend constitutional guarantees. In this way, it starts from the hypothesis that the Federal Supreme Court directs its reasoning to the necessary guarantee of fundamental rights, especially those of an individual nature, which makes even more evident the fact that the crisis coping model adopted by the Brazil was not the state of exception, and therefore it is not possible to suspend constitutional guarantees. In addition, when fundamental rights in conflict are at stake, the hypothesis presented is that the highest Court in the country makes use of weighting and proportionality, serving as a criterion in the control of exceptional measures. Finally, its performance is based on the duty of state protection (Schutzpflicht) for the realization of rights in times of pandemic crisis. In view of this, it is intended to analyze, having as a reference the Provisional Measures edited by the federal government with the intention of alleviating the health crisis, how the Federal Supreme Court is positioned and what arguments it uses in the reasoning of its decisions when at stake the possibility restriction of fundamental rights, during the duration of the state of calamity related to the Coronavirus pandemic. In the first chapter, the aspects and the legal conformation of the legal-constitutional exceptionality situation experienced in Brazil will be analyzed, due to the state of public calamity related to the Coronavirus pandemic. In the second chapter, the role of constitutional jurisdiction and the role it assumes in the protection and guarantee of the Constitutional State in its form of a Democratic State of Law and fundamental rights will be studied. And in the third and final chapter, the Provisional Measures issued by the federal government and the position of the Federal Supreme Court, during the duration of the state of calamity, will be analyzed in decisions regarding measures that affect fundamental rights. In the end, it was concluded that the arguments of the Federal Supreme Court focus, in fact, on violations of fundamental rights and not on the limits of the Court's performance. In addition, it should be noted that the decisions do not define the possible limits for restrictions on fundamental rights and considerations, with the debate being more focused on the broad protection of rights.