Constitutional Issues in the Brazilian constitutional system between General Repercussion and the protection of fundamental individual rights

• Autor(a) principal: Martins, Leonardo
• Data de Publicação: 2019
• Tipo de documento: Artigo
• Idioma: por
• Título da fonte: Revista Espaço Jurídico/Espaço Jurídico Journal of Law
• Texto Completo: https://periodicos.unoesc.edu.br/espacojuridico/article/view/19953
• topic: Constitutionalization of law; Admissibility of extraordinary appeals; Judicial review and the protection of individual rights; Constitucionalização do direito; Admissibilidade do recurso extraordinário; Vínculo judicial aos direitos fundamentais individuais

Art. 102, §3° of the Brazilian Federal Constitution was enacted by a constitutional amendment in 2004 and established an qualitative filter to be applied by the Supreme Court in a kind of extraordinary judgment concerning the admissibility of Extraordinary Appeals. The purpose is to enable the Court to justify the dismissal of Extraordinary Appeals whose “constitutional issues” do not have “general repercussion” in a move to secure that Court's functional capacity. As such, the aforementioned filter generally applies to cases that do not have social, political, economic or even legal relevance. There is not yet a definition or adequately classification of that concepts. . On the one hand, the specialized discussion has focused on the concept of “general repercussions” whose meaning, nevertheless, has been only unsatisfactorily clarified. On the other hand, there is no study to systematize the role of the concept of “constitutional questions”, which is a presupposition to the provision of “general repercussion”. The present study aims to fill this gap.  The bibliographical sources used span vast comparative literature regarding a related problem in Germany as well as the criticism concerning the legal-scientific investigation of the delimitation between the so-called “specific” constitutional law and infra-constitutional law. The study confirms the hypothesis that, although the content of art. 102, §3° of the Brazilian Constitution, it would be the duty of the competent judge to recognize these issues ex officio. As a result, the study presents criteria of orientation on the conceptual and practical delineation of the “constitutional questions”.