Efeito erga omnes e vinculante no controle de constitucionalidade aplicado pelo STF: a incoerência da concentração do controle difuso por meio da teoria da mutação constitucional

Abstract

Within the scope of this Course Completion Work, an investigation was carried out focusing on the analysis of the application of Article 52, X, of the Federal Constitution by the Federal Supreme Court (STF). The focus was on interpretations that seek to confer erga omnes efficacy and binding effect on decisions of unconstitutionality handed down by the Court in the control of repressive constitutionality through diffuse means, without the need for the promulgation of a resolution by the Federal Senate, similar to what occurs in repressive control. through technical means. To this end, the foundations of constitutionality control in Brazil were presented in an elucidative manner, with a detailed analysis of the foreign models that supported the diffuse and concentrated system, in order to outline a historical overview of each model, highlighting the moment of its introduction into the Brazilian legal system. Furthermore, the hybrid model adopted in the country was discussed, which combines elements of the European concentrated system of Kelsenian inspiration with the American system of "judicial review". Furthermore, the transformation in the functionality of the Federal Supreme Court was explored, highlighting the appropriation of constitutional prerogatives of the Federal Senate under the justification of the theory of constitutional mutation. An analysis of the contemporary paradigm was undertaken, unveiling the foundations and motivations that led the STF to adopt this position. This approach included a critical analysis of detailed doctrinal opinions, followed by an evaluation of criticisms of the abstraction of diffuse control, with special emphasis on the dissenting expressions of STF ministers in the judgment of Constitutional Complaint No. 4,335/AC. In the end, the incongruity intrinsic to the STF's current paradigm in attributing erga omnes effectiveness and binding effect to its decisions in repressive control through diffuse means was detailed. Arguments developed against the theory of constitutional mutation were developed, in addition to exposing what would be the appropriate constitutional methods to overcome the unconstitutionality underlying the STF's position, including the discussion on the binding precedent and the possibility of a constitutional amendment to modify the art. 52, The clarity of Article 52, X stands out, which does not allow interpretations that deviate from its original intention. The suggestion is that the STF use means such as the binding summary or refer decisions to the Federal Senate, in accordance with the Constitution, to guarantee the desired effects, avoiding the current legal uncertainty and transgression of the principle of separation of powers.