A atuação do Amicus Curiae na judicialização da saúde : uma análise na jurisprudência do STF envolvendo grupos em situação de vulnerabilidade.

Abstract

The figure of the amicus curiae, traditionally called "friend of the court", has experienced significant evolution in the Brazilian legal context, particularly with regard to its procedural function. Originally conceived as an impartial tool to assist the judiciary – as its nomenclature suggests –, the institute has consolidated itself as a mechanism that pluralizes and legitimizes debate, partially, but, above all, with an underlying public interest. In Brazil, the insertion and progress of amicus curiae in the legal system also has its peculiarities, notably after the approval of the Laws that govern the concentrated control of constitutionality, a point which changed the scenario of amicus curiae on Brazilian soil, as well as through of its prediction in the current civil diploma. Considering this and the need to debate new protection strategies for vulnerable groups in the context of health judicialization, which raise questions about their effectiveness and representativeness, this study proposes research that involves these two themes. In this way, this work analyzes the role of the amicus curiae institute in the jurisprudence of the Federal Supreme Court as an instrument for protecting the fundamental and social right to health for groups in vulnerable situations, based on research into actions involving the judicialization of health between the period 2009 and 2022. With this objective, the problem consists of verifying: which amici curiae intervened (groups, entities, associations, individuals, etc.), what was the nature of their interventions (information from the court or legal arguments), whether their manifestations ( written or oral) were they expressly used as elements in decisions? To address these questions, the approach method is adopted, complemented by jurisprudential and doctrinal research, this being the research technique. The investigation, in general terms, is based on the following procedural methods: historical, bibliographic and jurisprudential. Furthermore, it is important to highlight that this investigation is closely aligned with the line of research on Contemporary Constitutionalism of the Postgraduate Program in Law at the University of Santa Cruz do Sul, since the work focuses on analyzing the dynamism of 21st century law, presenting, in a way, an instrument of democratic participation capable of bringing the reality of a highly plural society into the judiciary, complying with the precepts established by Peter Häberle in his work. In addition, he is inclined to the line of research of the advisor Professor Post-Dr. Rosana Helena Maas, recognized for her substantial academic contributions on the topic of amicus curiae, the judicialization of health and the effectiveness of fundamental social rights. Furthermore, she is the coordinator of the research project entitled “The judicialization of health and its impact on the protection of groups in vulnerable situations: analysis of aspects related to vulnerability in guaranteeing the social right to health in the decisions of the STF and the IDH Court”, funded by FAPERGS (Recent Doctoral Grant – ARD – Notice 10/2020 – Grant Term 21/2551-0000637-4). The research is extremely important in the current legal scenario, since the contemporary conception of law no longer allows the interpretation of fundamental precepts, listed in the constitutional text, to be restricted to a select group of individuals. This axiological multiplicity, characteristic of Brazilian society, encompasses a diversity of concepts and protections that must encompass all those under the aegis of the constitutional text. In other words, it is important that the conception of democracy is read in an expanded way, allowing everyone to contribute to the construction and interpretation of this text. For this reason, in this context, it was decided to analyze the role of the amicus curiae at the jurisdictional level, given its unique ability to integrate society in the STF's discussions on the main constitutional issues. When delving into the topic, it is clear that the amicus curiae is, in fact, an indispensable figure in this field. However, its participation is still limited within the jurisdictional scope. Even when included in discussions, their contributions are sometimes insufficiently valued in judicial decisions.