O controle judicial das escolhas orçamentárias como estratégia de efetivação de políticas públicas concretizadoras de direitos sociais prestacionais

Abstract

This dissertation discusses the feasibility and potential of judicial control over public budgetary choices as a strategy to perform public policies that actualize positive social rights. After setting the theoretical foundations of what seems to be a "constitutionally adequate theory of the constitution" to a country whose Constitution settles state´s purposes and objectives and also establish fundamental social rights with a prominent installment function, which limits the action space of the Executive and Legislative Powers, especially regarding the definition and implementation of budgetary choices to accomplish these rights, the dissertation characterizes positive social rights as those which aim the creation of normative and material conditions that enable to overcome the historical inequalities that mark Brazilian society and that, along with other effectiveness contents, have as a main object the creation of public policies capable of passing the offering of public services and developing goods that can be enjoyed by the community and, especially, the most vulnerable groups in both social and economic perspective. Without denying the importance of the subjective dimension of social rights and their individual protection, the dissertation focuses on the objective dimension and collective protection of such rights and demonstrates how the Judiciary reacts in a distinct way when facing these different forms of protection. Once identified that the budget issues play a role in this state of affairs, discusses, with the backdrop of the costs of rights´ theme and the reserve of possible, if the budget is in fact an obstacle to actualize public policies linked to positive social rights. Analyzes the distortion of the legal system and the Brazilian budgetary system, as projects the changing possibilities since the idea of linking the issues of public budget and fundamental rights. Finally, presents the legal strategies to control the budget choices, ranging from controlling the existence of budgetary allocations, the control of the volume of resources for certain public policy and reach the control of budgetary execution (control of the contingency resources); discusses the procedural tools and techniques of supervision more appropriate to these strategies, the effects of judicial decisions and how the monitoring of its performance should be made, and also discusses the advantages of judicial control of the budget and the difficulties in making operational this type of control towards the structural weaknesses of the judiciary, the delay in the proceedings and the lack of familiarity of judges with budget issues. Then, the thesis concludes that is viable the judicial review of budgetary choices as a strategy to achieve the effectiveness of public policies implemented to actualize positive social rights, but with a reduced potential because of difficulties pointed out, and highlights that this strategy should be accompanied by a widening of the political and social debate on the public budget in Brazil.