Ius Constitutionale Commune Latino-americano e a construção de um sistema multinível de proteção ao direito à saúde : o diálogo entre a corte Interamericana de Direitos Humanos e os Tribunais Regionais Federais do Brasil.

Abstract

From the perspective of the theme of Latin American Common Constitutional Law (Ius Constitutionale Commune Latino-americano) and the formation of a multi-level system of health rights protection through the construction of a dialogue between the jurisprudence of the Inter-American Court of Human Rights and the Regional Federal Courts of Brazil, the present study aims to analyze and map the decisions issued by the Regional Federal Courts of Brazil in health law matters during the period from 2018 to 2022, observing the existence or absence of a dialogue with the jurisprudence of the Inter-American Court of Human Rights and the aspects that structure this possible dialogue between Courts. Thus, taking as reference the perspective of forming a Latin American Common Constitutional Law, it questions: in the scenario of a multi-level protection of health rights, is there a dialogue between the jurisprudence of the Inter American Court of Human Rights and the Regional Federal Courts regarding the judicialization of health, and in what aspects is this possible dialogue between Courts structured? For this purpose, the study will use the hypothetical-deductive method, analyzing decisions from the Federal Courts of Brazil related to health rights and seeking dialogues with the Inter-American Court of Human Rights. It will use the analytical method to filter rulings from the Regional Federal Courts with the keyword "Inter-American Court of Human Rights," selecting those related to health rights during the period from March 8, 2018 – date of the first judgment by the IDH Court that recognized the justiciability of health rights – to September 20, 2022 – end date of the research. The work is structured in three parts: first, the formation of a multi-level human rights protection system will be addressed; second, the theory of Latin American Common Constitutional Law will be studied; finally, the Brazilian Regional Federal Courts and the dialogue with the jurisprudence of the Inter-American Court of Human Rights in health matters will be observed. In the end, it concludes by the absence of a direct dialogue in health matters between the Regional Federal Courts and the jurisprudence of the Inter-American Court of Human Rights. However, the existence of an indirect dialogue on the theme is evidenced, where the Regional Federal Courts perform a conventionality control, dealing with other matters that radiate in the protection of health rights. This study is linked to the Graduate Program in Law - Master's and Doctorate, with a focus on Social Rights and Public Policies, in the line of research of Contemporary Constitutionalism, which has a direct relationship with the transformative scenario of Latin American Common Constitutional Law. Furthermore, the guidance of this work is justified by the fact that both the advisor, Professor Mônia Clarissa Hennig Leal, and the co-advisor, Professor Rosana Helena Maas, are researchers in the areas of contemporary constitutionalism and themes related to the protection of health rights and Latin American Common Constitutional Law.