As medidas estruturantes como ferramenta de implementação do acesso à justiça: a efetividade das decisões em sede de tutela de direitos transindividuais e pluri-individuais

Abstract

In this doctoral dissertation we seek to face the judicial effectiveness that can be perceived throughout the application of the structural injunctions when it comes to trans-individuals and pluri-individual s rights. To do so, the dissertation begins with a historical analysis of the institute and its origins, its characteristics and the leading cases where the institute was applied. After that we inserted the institute in a more important premise namely the equitable judicial order and emphasized that the great objective of the contemporary jurisdiction is its effectiveness. Still analyzing this perspective, we studied the forever increasing number of law suits in the Judicial Courts and the importance of the proactive role of the judges and the compatibility of this behavior with the fundamental premises of the procedural garantism. Thus, we conceptualized the institute to highlight the flexibilization s relevance of many other institutes in the classical procedural general theory to fit the needs of the polycentric quarrels. Moreover, we sustained the realization of public hearings and the fortification of the amicus curiae in these law suits where the structural injunctions will be applied to give the widest democratic character possible. Therefore, when dealing directly with the application of the structural injunctions in litigation's that deal with trans-individual and pluri-individual rights we established the distinction between these species of rights and approached the procedural timing when the structural injunctions can be deferred by the judge. Then, we measured the criticisms and benefits of the institute and concluded that it is indeed convenient its application. Finally, in the last chapter, we analyzed characteristics which are cornerstones to the structural injunction s good operation in the Brazilian legal system, namely: limits of the institute; parameters in which the judge can act; who are legitimated to inspect its execution and how someone who feels violated by the execution of a structural injunction can act. We wrote specifically of the intervention as structural injunction and analyzed the cases in which it occurred in the Brazilian legal system. So, we concluded that it is necessary to build a new procedural model in which the perfect application of the structural injunctions and the optimization of its results will necessarily go through the reanalysis of many of the classical procedural institutes. In a nutshell, that is our main contribution the the Brazilian procedural system improvement