O direito à igualdade na aplicação da lei e do precedente judicial

• Autor(a) principal: Cavalcanti, João Helder Dantas
• Data de Publicação: 2007
• Tipo de documento: Dissertação
• Idioma: por
• Título da fonte: Biblioteca Digital de Teses e Dissertações do Mackenzie
• Texto Completo: http://dspace.mackenzie.br/handle/10899/23903
• topic: direito à igualdade; lei; precedente judicial; equality principle; law; legal precedent; CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO

This study aims at analyzing the equality's principle incidence in applying the law and of legal precedent, when the same judge or Court and the Tribunals, mainly the Higher Courts because they have the mission of uniformizing the national jurisprudence - they decide similar causes in a different form. This divergence does not agree with the State model, with the Constitution and with the objectives of the Republic, besides violating rights and fundamental warranties. Leibholz and Radbruch formulate concepts of Right, it Executes and Equality. The economical, social, politics and cultural inequalities hinder the access to justice and the fair jurisprudence, leaving the less favored people that are the most needy more exposed to situations that claim for justice. The national development is inclusive and any project towards this end should take into account this characteristic. The legitimacy is essential to the political, social and economical democracy of any nation. The principle of equality is, as well said Radbruch, the core of Justice. When the equality is violated, the Right and the Justice should be reestablished. The judges are committed ethically with their decision. To modify it when one is confronted before another case, however, equal to the appreciated case, you should justify in a well-grounded, reasonable and rational report the reasons for the which you decided to amend your point of view, also demonstrating that such amendment is supported on previous doctrinaire positions and that this new way of thinking will be adopted for all of the future cases, in such a way to not characterize ad personam judgment, violating the principle of equality, natural judgment, impartiality duty, due legal process and other warranties and fundamental rights. Once the violation of that right and the citizen's fundamental warranty has been proved, the citizen may set in motion the Interamerican Court for Human Rights, so that the Brazilian State shall repair the damage that has been caused to the citizen by the non-complied promise. The disrespect to the rules of the game leads to an extremely serious situation, because only the State of Exception that may even come to contradict the idea of Right although in theory, because the Interamerican Court has been already positioned with restrictions to that idea, to suspend the citizen's fundamental rights and warranties. The principle of equality, therefore, inspires the internal jurisprudence and the whole framework of the International Law of Human rights, falling to the State to long lasting zeal for its full application.