Banca de DEFESA: RITHYELLE MEDEIROS BISSI DO NASCIMENTO

Uma banca de DEFESA de MESTRADO foi cadastrada pelo programa.
STUDENT : RITHYELLE MEDEIROS BISSI DO NASCIMENTO
DATE: 30/12/2024
TIME: 14:00
LOCAL: Google Meet
TITLE:

Reserve of the Possible: a mistaken principle limiting the right to health of those assisted by the Public Defender's Office of the State of Rondonia.

KEY WORDS:

Right to health. Judicialization. Public policies. Public budget. Reserve of the Possible.

PAGES: 100
BIG AREA: Outra
AREA: Multidisciplinar
SUMMARY:

The term “Reserve of the Possible” (“Vorbehalt des Moglichen”) originated in foreign law, first addressed in the judgment of two specific cases, BVerfGE 33, 303 (Numerus clausus), brought by the Administrative Courts of Hamburg and Bavaria, Germany, on July 18, 1972. The cases concerned the (insufficient) number of places on the Higher Education Medical Course at local universities and the reasonableness of requiring the State to provide a non-existent spot for a student interested in that course. In Brazil, the term was used 32 years later, in 2004, in a decision by the Supreme Federal Court. Since then, it has become common to reference and indiscriminately apply the term, especially as a justification to dismiss the effectiveness of constitutional norms in various judicial decisions, becoming a real obstacle to the realization of fundamental social rights enshrined in the Federal Constitution of 1988. Considering this, this research proposes to investigate the “Reserve of the Possible” and its negative impact on human rights in Brazil when used indiscriminately as a rationale for not regularly enforcing constitutional fundamental guarantees through judicial decisions, particularly in cases where the State does not voluntarily provide positive obligations. As for the methodology, the research is applied and qualitative in nature, using a hypothetical-deductive method with exploration and explanatory objectives. The procedures include legal-dogmatic and empirical research, based on bibliographic and case law research techniques, with theoretical foundations drawn from the theory of fundamental rights, relying, among others, on Robert Alexy, Justice Gilmar Ferreira Mendes, Joaquim Jose Gomes Canotilho, Paulo Bonavides, Jurgen Schwabe, Andreas J. Krell, and Ana Carolina Lopes Olsen. The relevance of this research is justified by the large number of judicial decisions that rely on the "Reserve of the Possible" to limit the guarantee of fundamental human rights, instead of requiring the State to fulfill its positive obligations when it fails to voluntarily satisfy basic rights through budgetary planning and proper management of public resources. In the context of comparative law, it becomes evident that judicial control over public policies cannot be trivialized in a way that allows the Public Authorities to remain in a comfort zone, where the mere claim of insufficient resources limits or prevents the realization of fundamental human rights.

COMMITTEE MEMBERS:
Externo à Instituição - JOSE ALBERTO OLIVEIRA DE PAULA MACHADO
Presidente - 1478202 - MARCIO SECCO
Interna - 1718398 - THAIS BERNARDES MAGANHINI