Dir eito Public Order
Introduction to the Study of Law. Constitutional Law. Constitution: the supremacy of the Constitution, constitutional principles and their involvement in the Brazilian political structure, fundamental principles, individual and collective obligations, guarantees and social rights and citizenship. Public order and safety and protection of democratic institutions. Administrative Law: public administration and administrative structure of the state. Concepts, principles in public administration. Public policy and public safety: principles and precepts derived from the Constitution, law and order. Public policy, public security and social control. Role of institutional structures of public safety: new paradigms in security.
Promoting reflection on the science of law and understand the legal disciplines that support the activities of public security agents, with special emphasis on the role of the police and the sources and forms of organization of the action oriented policy of the institution, allowing the construction a critical knowledge about the interaction between the social and legal standards.
• Present historical aspects of the construction of the rights of peoples and their way of social and political organization, seeking to reflect and understand the changes occurring.
· Understand the political / legal system in force and the role of ideologies and forms of organization of the state in its consolidation.
· Understand the main offices of Constitutional Law and Administrative Law, its principles and rules applicable to members of the public security system in Brazil.
· Perceive changes and social needs and situations of conflict, reflecting on how the adequacy of the public safety to meet the new demands and promote social harmony.
• Apply lessons learned in the activities of public safety.
The legislature should not forget that laws are made for men, not men for laws, which should be adapted to the character, habits, the situation of the people for which they are made, which must be sober news in legislation, because, if possible, a new institution, to quantify the benefits that the theory gives us, is not familiar with all the disadvantages that only practice can discover.
PORTALES, Discours préliminaire prononcé lors de la présentation du projet du Code Civil.
Throughout the study day will have the opportunity to discuss a range of issues that directly or indirectly, have much to do with the daily routine of the police action.
Given the legislative inflation with which we face daily, it becomes imperative to understand the extent of the law affect the activities of public security, without which we will navigate towards a world without legal increasingly complex and contradictory, which often created in a number of pitfalls that must be avoided or disarmed.
The manipulation of public security officer facing new challenges of contemporary society is embraced by the seizure of knowledge that will enable a new perspective on society, on conflict and on the different ways to solve them. Something, in Freire's conception, to release and give it autonomy and security and to do the day-to-day policing.
This is a modest proposal of this course: to prepare the police as an agent of mediation and promotion of citizenship rights and social peace. For this, this course part of an initial approach on the right, its principles and ethics and social reason for its existence. The basic concepts and principles of law are treated, so that you have a view of the whole and realize the importance of their knowledge on the growth of the relativity of justice. This knowledge which will serve as a basis for the application of the rules themselves.
Below, we present some reflections on the constitutional law, its basis and fundamentals and the guarantees that he presents to society and citizens.
The Administrative Law is dealt with soon after, so that you understand the extent of governmental actions towards political and administrative goals and understand some concepts and principles of public administration, administrative powers and duties of public administrator.
Finally, after that the conceptual basis of the law, deal with public order and public security, studying the main conceptual, operational and legal police, especially police in maintaining public order and police of the military.
In view of discussions which take place on public safety in the country, where the measures being taken have served to contain the violence and crime, particularly in large cities, the search for solutions running through changes in the limited understanding about public safety and the action of agents that, in common sense, is that the police is to arrest criminal.
This conceptual reductionism ideological background has limited the potential of the police in achieving its historic vocation, which is, or should be, the protection and defense of the citizen.
This course seeks to reconcile the formal aspect, that guide and regulate the activities of public security structures and their agents which have the Administrative Law and Constitutional Law as a basis, with a new philosophical and attitudinal environment that is conducive to police social citizen, with emphasis on the democratic dialogue rather than discourse of fear, panic and terror law.
- Lesson 1 Introduction to the Study of Law <http://www.catolicavirtual.br/conteudos/graduacao/cursos/tec_seguranca_publica/html/1o_semestre/direito_ordem_publica/aula_01/pagina_01.php>
· 1.1 Cultures and its Normative Aspects <http://www.catolicavirtual.br/conteudos/graduacao/cursos/tec_seguranca_publica/html/1o_semestre/direito_ordem_publica/aula_01/pagina_01.php>
- Classroom 2 The Right <http://www.catolicavirtual.br/conteudos/graduacao/cursos/tec_seguranca_publica/html/1o_semestre/direito_ordem_publica/aula_02/pagina_01.php>
· 2.1 Concept of Law <http://www.catolicavirtual.br/conteudos/graduacao/cursos/tec_seguranca_publica/html/1o_semestre/direito_ordem_publica/aula_02/pagina_01.php>
2.2 Understanding · About Political and Social <http://www.catolicavirtual.br/conteudos/graduacao/cursos/tec_seguranca_publica/html/1o_semestre/direito_ordem_publica/aula_02/pagina_02.php>
· 2.3 Sources of law <http://www.catolicavirtual.br/conteudos/graduacao/cursos/tec_seguranca_publica/html/1o_semestre/direito_ordem_publica/aula_02/pagina_04.php>
· 2.4 Principles of Law <http://www.catolicavirtual.br/conteudos/graduacao/cursos/tec_seguranca_publica/html/1o_semestre/direito_ordem_publica/aula_02/pagina_07.php>
- Class 3 Administrative Law <http://www.catolicavirtual.br/conteudos/graduacao/cursos/tec_seguranca_publica/html/1o_semestre/direito_ordem_publica/aula_03/pagina_01.php>
· 3.1 Concept of Administrative Law <http://www.catolicavirtual.br/conteudos/graduacao/cursos/tec_seguranca_publica/html/1o_semestre/direito_ordem_publica/aula_03/pagina_01.php>
· 3.2 Objectives of the Administrative Law <http://www.catolicavirtual.br/conteudos/graduacao/cursos/tec_seguranca_publica/html/1o_semestre/direito_ordem_publica/aula_03/pagina_02.php>
· 3.3 Content of the Administrative Law <http://www.catolicavirtual.br/conteudos/graduacao/cursos/tec_seguranca_publica/html/1o_semestre/direito_ordem_publica/aula_03/pagina_04.php>
3.4 Power · Police <http://www.catolicavirtual.br/conteudos/graduacao/cursos/tec_seguranca_publica/html/1o_semestre/direito_ordem_publica/aula_03/pagina_07.php>
· 3.5 Administrative Acts <http://www.catolicavirtual.br/conteudos/graduacao/cursos/tec_seguranca_publica/html/1o_semestre/direito_ordem_publica/aula_03/pagina_09.php>
- Class 4 Constitutional Law <http://www.catolicavirtual.br/conteudos/graduacao/cursos/tec_seguranca_publica/html/1o_semestre/direito_ordem_publica/aula_04/pagina_01.php>
· 4.1 Concepts of Constitutional Law <http://www.catolicavirtual.br/conteudos/graduacao/cursos/tec_seguranca_publica/html/1o_semestre/direito_ordem_publica/aula_04/pagina_01.php>
· 4.2 The Constitutional Principles and their Implication in Brazilian politics <http://www.catolicavirtual.br/conteudos/graduacao/cursos/tec_seguranca_publica/html/1o_semestre/direito_ordem_publica/aula_04/pagina_02.php> Structure
- Lesson 5 Rights and Duties of Individual and Collective <http://www.catolicavirtual.br/conteudos/graduacao/cursos/tec_seguranca_publica/html/1o_semestre/direito_ordem_publica/aula_05/pagina_01.php>
Incisions · 5.1 of the Constitution dealing with the Rights and Duties of Individual and Collective <http://www.catolicavirtual.br/conteudos/graduacao/cursos/tec_seguranca_publica/html/1o_semestre/direito_ordem_publica/aula_05/pagina_01.php>
- Lecture 6 Public Order and Public Security: Principles and Precepts of the Federal derivatives <http://www.catolicavirtual.br/conteudos/graduacao/cursos/tec_seguranca_publica/html/1o_semestre/direito_ordem_publica/aula_06/pagina_01.php>
· 6.1 Public Security and its agencies responsible
· 6.2 Public Order and Policing
- Lesson 7 Public Order and Security from the control Social <http://www.catolicavirtual.br/conteudos/graduacao/cursos/tec_seguranca_publica/html/1o_semestre/direito_ordem_publica/aula_07/pagina_01.php>
· 7.1 Order and Security: New Meanings
· 7.2 Power of police and Police Power
- Lesson 8 Role of Institutional Structure of Public Security in Combating Violence and Crime <http://www.catolicavirtual.br/conteudos/graduacao/cursos/tec_seguranca_publica/html/1o_semestre/direito_ordem_publica/aula_08/pagina_01.php>
· 8.1 Factors Social Transformation and Perception of Violence
· 8.2 New Approaches
Lesson 01 - Introduction to the Study of Law
The world we live in is guided by legal rules which impose a set of constraints, duties and obligations and certain rights. This set of rules did not emerge overnight, was being designed along the historical and social process, culminating in what we know by law.
And it is about this law that we deal with this first class. We will study its origins, his early legal institutions and their evolution.
Have you ever imagined a society without rights?
Since the society organizes itself as it emerges the need for a set of rules to govern the actions of men in order to search for a peaceful coexistence.
The man, when leaving the stage of animality, is to maintain a series of links with their peers, who ends up consolidating in a series of duties and obligations. From this comes the need for an instrument to resolve differences, conflicts, appearing as the right means for its resolution, capable of making a peaceful life among the people.
Therefore, the law appears as a set of rules that co-forces people to respect certain mode of behavior, on pain of suffering a penalty or reprimand.
1.1 Arable and their Regulatory Issues
For Professor Anthony WOLKMER
Every culture has a normative aspect, leaving it to define the existentialism of standards, rules and values that institutionalizes models. Each company strives to provide a certain social order, manipulating key regulatory approvals, which can act as effective system social control, material element to prevent, remedy and punish deviations from the prescribed rules. The law expresses the presence of a right ordered tradition and customary practices that maintain the cohesion and social group. (WOLKMER <http://www.catolicavirtual.br/conteudos/graduacao/cursos/tec_seguranca_publica/html/1o_semestre/direito_ordem_publica/referencias.php>, 1996, p. 1) (emphasis added)
There is no denying that the processes of training and applying the law, though not derived from a pure state, such as natural law, for example, are and have been in the past, today and always, tied to the ideological premises, which ended giving support.
Thus do we see a great division of legal ideologies, and, on the other hand, the so-called positive law and the other, the law understood as a fair, called the natural law.
Positive law includes a system of mandatory norms applicable institutionalized by government coercively taking the form of laws, customs or treated (GUSMÃO <http://www.catolicavirtual.br/conteudos/graduacao/cursos/tec_seguranca_publica/html / 1o_semestre/direito_ordem_publica/referencias.php>, 2001, p. 54). Since the natural law which is independent of any legislature, intended to satisfy the natural man, for example, equality and freedom (Gusmao, 2001, p. 55).
The work Antigone, Sophocles, poet and playwright Greek writer of tragedies, and portrays this historical duality that occurs between the positive law and natural law. Part of the text of Sophocles and caricature this issue. In Aristotelian conception also in the work Nicomachean Ethics, Sophocles asserts that the Court goes beyond the writing.
Simone Goyard-Fabre (2002) illustrates this:
Creon, the king is outraged by the disobedience of Antigone that, despite its prohibition, gave grave for his brother. Antigone replies: I disobeyed the law because your did not Zeus who proclaimed, is not justice ... is not the law that the gods had set for men, and did not think your bans were powerful enough to allow a mortal to depreciate other laws, the unwritten laws, immovable, of the gods. These laws do not date either today or yesterday, and no one knows the day they appeared.The divine laws are, therefore, eternal, and have been universal and, for them, no one is marginalized or excluded. Have absolute value. No one can abrogate them or modify them. Obey them, as does Antigone, is to choose the eternal to the temporal, the absolute to relative to changing the unchangeable. In Sophocles, it is clear that the preference given to the unwritten law of God must be understood as a deeply religious attitude. But it also has a moral sense, which involves reference both to the customs or usages as the ethical. (GOYARD-FABRE <http://www.catolicavirtual.br/conteudos/graduacao/cursos/tec_seguranca_publica/html/1o_semestre/direito_ordem_publica/referencias.php>, 2002, p.11)
Note that since the early days there was a troubled relationship between the written law laid down and codified, and the unwritten law. Therefore, between natural law and positive law, or justice between the transcendent and the positive law (GOYARD-FABRE, 2002, p. 12).
Antigone and the body of Polynices <http://www.mainlesson.com/display.php?author=church&book=tragedians&story=antigone&PHPSESSID=d3d7825a277de500ad8bde99ed755a9f>
Another point that has been placed over time is the distinction between law and morality.
For many people of antiquity, like the Egyptians, the Babylonians, the Chinese and the Greeks themselves, there was no distinction between law and morality. The law ended up being confused with the rules and social customs.
Although the moral could provide the basis for the right, legally, it does not concern us, because its violation does not sanction, while violation of the law implies a duty, subjecting the violator to a penalty or coercion.
This issue is well translated by Paul Golden Gusmão:
The moral duty is not payable by one, reducing the duty of consciousness, you will, as a legal duty to be performed or face the debtor the effects of organized sanctions, applied by specialized agencies of society. Thus, the right, duty is payable, as in morals, no. However, it is only because, as the law is heteronomous, being tax or guaranteed by the competent authority, even against the wishes of the recipients, the moral is autonomous because it is imposed by the consciousness of man. Thus, we can say that the law is not complied with voluntarily can do so by the intervention from the police and judiciary, which does not occur with morality, which requires compliance with spontaneous, voluntary, its precepts. (Gusmao, 2001, p. 71)
But to understand the law, we must know its history. And it is informative message H. Page:
The history of law is often treated with condescending disdain for those who understand to address only the right thing. The lawyers who are interested in it, often at the expense of investigations very long and very laborious, are often accused of pedantry ... An appreciation of this kind does not benefit those who give. The deeper we go into civil law, it found that history, far more than logic or theory, is the only one able to explain what our institutions are those and why are those that exist. (Apud <http://www.catolicavirtual.br/conteudos/graduacao/cursos/tec_seguranca_publica/html/1o_semestre/direito_ordem_publica/referencias.php><http://www.catolicavirtual.br/conteudos/graduacao/cursos/tec_seguranca_publica/html/1o_semestre/direito_ordem_publica/referencias.php> Gilissen, 2001, p. 13)
The historical aspects of demonstration and training of the right have their importance because of the plurality of legal systems that have formed over time and who have, and still exert influences in our legal culture.
Among the rights that influenced us, played a role in the legal systems of today are called papists, the common law, the basic socialist, and very different from those other European rights, including rights Hindu, Chinese, Japanese, Muslim and African .
According Gilissen (2008, p. 13), the system of common law was born in England, especially by actions of the royal courts in the Middle Ages (Saudação XIII to XV). It is a amde law judge, that is, a law drafted by the judges, the main source of law is there, in case law and legal precedent.
The temple of Saturn, the Roman Forum <http://www.catolicavirtual.br/conteudos/graduacao/cursos/tec_seguranca_publica/html/1o_semestre/direito_ordem_publica/aula_01/>, near the Arch of Septimius Severus <http://www. catolicavirtual.br/conteudos/graduacao/cursos/tec_seguranca_publica/html/1o_semestre/direito_ordem_publica/aula_01 /> (left).
We can not forget the religion and canon law, who had exercised and still exercise, influences the legal constructions of people, even in the secularized as Brazil. Just look at the preamble of our Constitution of the Federative Republic of Brazil in 1988, which reads as follows:
We, representatives of the Brazilian people, meeting in the National Constituent Assembly to establish a democratic state, to ensure the enjoyment of social rights and individual freedom, safety, welfare, development, equality and justice as supreme values of a fraternal, pluralistic and unprejudiced society, founded on social harmony and committed, in the domestic and international, to the peaceful settlement of disputes, promulgate, under the protection of God, this CONSTITUTION OF THE REPUBLIC OF BRAZIL. (BRAZIL <http://www.catolicavirtual.br/conteudos/graduacao/cursos/tec_seguranca_publica/html/1o_semestre/direito_ordem_publica/referencias.php>, 1998)
The invocation of God shows how much influence religion has on our right. The recent discussion on the use of stem cells in research in Brazil depicts the areas where it occurs, and this question come to our court more.
It should be noted that Roman law was the most strongly universes legal constructions of the peoples of the West, with many institutes and principles that have built and continue to serve as exegetical basis for the modern legal world.
If the Greeks were brilliant in the construction of a philosophical basis for understanding the ideologies of justice, its thinkers like Socrates, Plato, Aristotle, the Romans knew how to translate this body of ideas in systematizing the law.
The Latin legal tradition has been heavily influenced by Roman law that, since the so-called Twelve Tables to theCorpus Juris Civilis of Emperor Justinian, built important legal institutions to civilizations.
The Twelve Tables appear in the 450 BC in a context of dissatisfaction from the mob, which called for their rights and a set of rules that were less susceptible to uncertainties, which was characterized by the application of custom as a source of law at the time. This legislation ended up being the source of all public and private law and its Roman character is visible in the body of law, reflecting the primitive trace, practical, concrete, immediate and violent of the Roman people.
Since the Corpus juris civilis arises at the time of Emperor Justinian century. IV, at which time the law was legal sources as the imperial constitutions. That category included the meeting of the imperial constitutions, in four sections called:
· Digest or Pandectas: compilation of the writings of jurists.
· Code: new legal requirements.
· Institutions: geared toward the didactic Roman private law.
· Novels: A set of new imperial constitutions designed to meet the new cases that arose. (CRETELLA JR <http://www.catolicavirtual.br/conteudos/graduacao/cursos/tec_seguranca_publica/html/1o_semestre/direito_ordem_publica/referencias.php>, 1987, p. 71-73)
In the thirteen centuries of history, about the Roman law not only left behind in a series of legal institutions, but mainly contributed to the construction of a legal science.
Paulo Dourado Gusmao is accurate to say that:
Rome had the legal vocation. Distinguished the right of Morals and Religion. Say, writes Declareuil (Roma y la organización del derecho, trans.) Rome held that the right not only means that had large number of laws. The amount in legislative output is not a sign of perfection, and often the opposite. Other people had more laws earlier than the Romans, and others who came later. If one considers only the number of laws, Rome is late to play the role of initiator. It is not, continues the author claimed, for having had laws or the laws that Rome gained supremacy in the field of law, but by having created a science and art of law. (Gusmao, 2001, p. 297)
Among the contributions of the Romans include: ideas about subjects of rights in general, legal persons, the right to freedom, citizenship status, the institution of the family and its protection, definitions of property rights (over things: ownership, possession and protection), dividend, inheritance and also issues relating to legal proceedings.
All people have a way, even if rudimentary, of law, which makes up a system of social control to prevent, remedy and punish deviations from the prescribed rules. These rules passed by tradition are meant primarily to maintain cohesion and social peace.
Important distinction must be made between positive law and natural law. The first comprises a system of mandatory norms applicable institutionalized by government coercively taking the form of laws, customs or processed and natural law that is independent of any legislature, to satisfy man's natural, such as equality and freedom.
Although many people have contributed to the Western legal culture, it was the Romans who left the greatest legacy, still present in many of our legal institutions.
In the next lesson, we will see some of the concepts, principles and classifications of law and its distinction from moral and cultural aspects of society and in our tradition and legal training.
Lesson 02 - The Right
Right along the historical and social process had the scope to materialize a set of rules for the common good and social harmony, able to give people security and justice.
2.1 Concept of Law
Obviously, convenience historical or political or ideological issues, they often have the right to depart the ideologies of justice, as in some totalitarian state, Nazism, genocide occurred recently in some countries of Eastern Europe and Africa. Finally, the processes of exclusion of minorities by-pass a law acting on behalf of the symbolic order and social security.
For this reason, it is now thought of Roberto Lyra Filho on the design of Law:
An accurate conception of law can not ignore these aspects of the historical process in which the circle of legality is not the same without more, with the legitimacy, as noted, among other things, including the great bourgeois lawyer Hermann Heller. We would say that even if the law is reduced to pure legality, as is the illegitimate domination by virtue of that assumed identity, and this law does not pass, then the state standards, castrated, dead and embalmed, to the morgue of a pseudoscience that legal conservatives, not by chance, call dogmatic. A true science, however, can not be based on dogma, which deify the state standards, these practices become pseudo task in boys of imperialism and domination and degrade the search of knowledge in a litany of thugs unconscious or smart. (LYRA FILHO <http://www.catolicavirtual.br/conteudos/graduacao/cursos/tec_seguranca_publica/html/1o_semestre/direito_ordem_publica/referencias.php>, 1982, p. 12)
The history of our prisons can also serve as an example of the gap that often occurs between what is laid, the case law, and justice. That is, we have a criminal justice system that has a symbolic role to prevent violence, but that has only served to play it, because just seeing who is detained and under what conditions are treated our prisoners.
On the question of the criminal justice system, the teacher Vera Regina Pereira de Andrade is instructive:
Strengthening the discourse and techniques of the war on crime and public safety (cleaning of public space and back streets of the citizens), the global control law radicalized the symbolic function of criminal law through a legislative hyperinflation, or the promise and the illusion of solving diverse social problems through the criminal at the time in rediscovering, alongside the traditional, new enemies (evil) against which to wage war (terrorists, drug dealers, homeless, landless, etc.). not saving, even symbolically, the national bourgeoisie (evaders, environmental plunderers, corrupt drivers, vehicles, etc..) which also becomes vulnerable to the power of global capital. (ANDRADE <http://www.catolicavirtual.br/conteudos/graduacao/cursos/tec_seguranca_publica/html/1o_semestre/direito_ordem_publica/referencias.php>, 2003, p.12)
That's when it comes to the fore the debate: what then is the role of law in our society?
The saying that societas ubi, ubi ius - where there is society, there will be a right - which should serve as a formal reference to the manifestation of justice, resolving conflicts and promoting social peace, even with coercion, with the use of strength, but without being reduced to this or that to become an instrument of oppression and domination.
For this reason, inflated legal speeds contemporary societies, it is important to understand what is the law under the design point, which may have initially three meanings or meanings:
Right Goal: set of rules imposed on all and that compliance is mandatory.
Subjective Right: college people have to rely on the right.
Science of Law: Legal system of knowledge (GUSMÃO <http://www.catolicavirtual.br/conteudos/graduacao/cursos/tec_seguranca_publica/html/1o_semestre/direito_ordem_publica/referencias.php>, 2001, p. 49)
But what about where they come from these principles and rules?
This is where you should make a brief digression on social and political organization.
2.2 Notions About Social and Political Organization
The need to live politically, to interact with others and to organize in pursuit of a collective welfare has been one of the assumptions of life in polities.
The man was organized socially and politically driven not only by factors resulting from the search of better living conditions, but also by the need for peaceful coexistence between people.
From the moment that people are now part of certain communities, bound by blood or by historical, cultural, solidarity, and submitting to a common order, unity among its members coalesced and formed a community of interests, projects , needs and problems, requiring a higher power capable of standing up to their development.
Since the so-called rights archaic or primitive, so-called rights of peoples without writing, companies attempting to organize and monopolize its coercive power, founded on a law that expresses the will and justice on their behalf. This law is expressed by the member state which is legally considered an organization for the power for providing, in a given territory, order, social peace, security and development of the people attached to it (GUSMÃO <http://www.catolicavirtual.br / conteudos/graduacao/cursos/tec_seguranca_publica/html/1o_semestre/direito_ordem_publica/referencias.php>, 2001, p. 351).
Indian Village Crowned
In the words of Engels:
At first marriage remained in groups. A group of men married with a group of women and children only the mother had known. Then she went on to marry several men or a man with several women. Then, men and women began to form a pair, a couple more or less consistently, for more or less time. Finally, it states that each man marries one woman. This may seem roadmap d romance, but according to Engels, these were the various stages of family formation. In the early mother-right prevails or the matriarchal family, being replaced gradually by father-right or the patriarchal family.In this evolutionary process is the structuring of the wider society that goes beyond the primitive family groups, emerging EU agriculture, trade, arts and crafts, the division of common land on private property. Finally appears the state as monitor all activities and the holder of power. It is the emergence of modern society in which man exploits man. It is the story of man as a social rather than live in a harmonious and cohesive group, prefers to invent a pluralistic society where, as Machiavelli, the servants will always be faithful servants and good men will always be poor. (ENGELS <http://www.catolicavirtual.br/conteudos/graduacao/cursos/tec_seguranca_publica/html/1o_semestre/direito_ordem_publica/referencias.php>, s / d)
The family has been - since it left the stage of animality - historically considered on the whole society, progress and adjusting to new forms and models of society, even though the patriarchate has been called the hegemonic model.
To Fustel de Coulanges (2002, p. 45), one of the decisive components for the formation of a family entity and their marriage was something more powerful than the birth, feeling or physical strength. It was power and that power is in the religion of the home and the ancestors. Religion has caused the family to form one body and that in another life.
It is worth noting in this context that the strengthening of family bonds implies the strengthening of the state itself, which is why the countries have had this concern. In our legal system to its protection was erected on the constitutional level:
Article 226. The family basis of society, has special protection from the state.
(...) § 3 For purposes of protection of the state, is recognized as a stable union between a man and a woman as a family entity, and the law to facilitate their conversion into marriage.
§ 4 It is understood also as a family entity formed by any community of parents and their descendants.
(...) § 8 The State shall ensure assistance the family in person at one of the members, creating mechanisms to curb the violence in their relationships. (BRAZIL <http://www.catolicavirtual.br/conteudos/graduacao/cursos/tec_seguranca_publica/html/1o_semestre/direito_ordem_publica/referencias.php>, 1988)
In addition to protection in the constitutional level, has also protection in the civil and criminal, with a separate chapter in the Penal Code which deals with crimes against the family.
In dealing with this protection, in Mirabete clear about their purpose:
Legal and deserves special attention of the criminal legislature is the family foundation of our society. Wanted, education and customs, beyond the law, strengthen the family body, preserving, where possible, the dissolution of the marital and parental societies. (MIRABETE <http://www.catolicavirtual.br/conteudos/graduacao/cursos/tec_seguranca_publica/html/1o_semestre/direito_ordem_publica/referencias.php>, 2005, p. 39)
So it is important to understand that all forms of social and political organization is rooted in family ties and relationships, the mechanisms and needs boosted principles and foundations for the formation of the state.
The sources of law, therefore, are inextricably linked to forms of social and political organization of people that come to deal with.
2.3 Sources of Law
It is understood the source of the right set of elements and factors that contribute to the formation of so-called legal rules that make possible or peaceful life in society.
To <http://www.catolicavirtual.br/conteudos/graduacao/cursos/tec_seguranca_publica/html/1o_semestre/direito_ordem_publica/referencias.php> Gilissen (2001, p. 25), the term sources of law can have three meanings: historical actual and formal. This author thus defines:
Historical 1.Fontes right: They are all elements that contributed over the centuries, to the formation of positive law currently in force in a given country.
2.Fontes real right: These are the factors that contribute to the formation of law; answer the question: where does the rule of law? The sources will vary according to religious or philosophical conception of man: supernatural, mystical, divine notions of justice, equity, social welfare, social, economic, political, or geographical, etc..
3.Fontes formal law: They are the tools of drafting of a socio-political group in a given time given, are also the modes or ways in which rules of positive law are expressed. (Gilissen <http://www.catolicavirtual.br/conteudos/graduacao/cursos/tec_seguranca_publica/html/1o_semestre/direito_ordem_publica/referencias.php>, 2001, p. 25-26)
Historical sources derive from the evolutionary process of human relationships, which came to be codified and became the legal systems of people. With writing, the advances have been increasingly significant.
Regarding the actual sources of law, have long called the divine laws significantly influence the construction of the law, and only after a very slow evolution, the reason appears to be the basis of law.
Norbert Rouland explains in this regard:
Grotius, Hobbes, Locke, Rousseau, all theologians of the social contract and spend preparing the elimination of God rather than later, other philosophers proclaim his death. Forge a new myth, that of free individuals in the state of nature to better protect their freedom, come together in society and, as the rate, set by a contract laws and freedoms to which all claims, and those who retain title rights subjective. The state of nature to individual rights, the legal universe is rational and has the consistency out of any religious reference. (<http://www.catolicavirtual.br/conteudos/graduacao/cursos/tec_seguranca_publica/html/1o_semestre/direito_ordem_publica/referencias.php> Rouland, 2003, p. 62)
The ordeals, the judgments of God and Wales are examples of metaphysical or divine invocation of that ancient people flocked to resolve their conflicts, either because of legal alternative, or even co-opt and balance of power established by the prophets, kings or guardians of morality of these people.
The ordeals were corporal punishment as the red-hot iron, torture and mutilation. The judgments of God were mainly in duels, in which the survivor was found not guilty. And Wales was the conviction in ancient vessels, where the inmates were subjected to intense physical punishment, paddling the boat with that name.
Since the formal sources of law are mainly expressed by the laws and customs, and the manner in which positive law manifests itself in societies. The distinction between laws and customs is the fact that the first originates from the state and is written. Since customs come from non-state sources, ie, independent of the will of the state and its legislative will.
It can be said that most of our rules are unwritten, based on custom or customary also called, not least because we could not control all the possibilities of human relations which have legal repercussions upon written standards.
On the one hand they have written a coercive power to require airlines and often involves a penalty to those who disobey the other, the standards based on the customs are observed by the universal sense of justice and present them for acceptance to based on the consensus they have. Otherwise the sense of communal life with the virtues of tolerance, cooperation and solidarity, the fear of contempt and disregard by the social group they belong to push people to undergo the customary rules.
Other sources of formal written law, in addition to the written laws are presented as:
· Court: the repeated trial courts on a particular subject or object basis.
· Doctrine: debate made by interpreters, operators and scholars of law in issuing their positions on certain legal matters.
· Conventions: agreement made between parties, such as international treaties or the collective bargaining agreements.
· General principles of law: they relate to social values that underpin the interpretation of the standard.
In the Brazilian legal system the importance of sources of law is consolidated in the Law of Civil Code, which serves as an exegetical basis, or as a resource for interpretation of legal norms that appears in Article 4: When the law is silent, the judge decide the case according to the analogy, customs and general principles of law.
The general principles of law are of fundamental importance in the interpretation and application of legal standards. This is because the laws do not always end up being a consecte ideals of justice, or even be loopholes.
Given these gaps, or contradictions between natural law and positive law, or between positive law and justice, the general principles of law may be invoked to protect the social order and social peace and to avoid injustice.
We can illustrate this reliance by law enforcement officials in case you catch someone stealing an object of little value in a supermarket. In theory, the police have to arrest that person and refer her to a police station or Special Criminal Court and then plow the Detailed term with the commitment of the accused to appear in court. If not do so, would be likely to answer for the crime of prevarication laid down in Article 319 of the Penal Code:
Article 319. Slow or stop practicing improperly any official act or practice it against an express provision of law, to satisfy personal interests or feelings:
Penalty - imprisonment from 3 months to 1 (one) years and a fine.
Really! It is an object of little value, and how much interest to the Society and punish anyone who committed a practice irrelevant, that virtually no damage brought to social life?
In this case, before the stark contradiction between the right post - positive law - and the nature of the legal right allegedly violated, it would be the agent rely on public safety as the principle of insignificanceor trifle, where before the small value of the stolen thing could disregard the formal referral of the matter without criminalizing involved with mediating the conflict to restore the damage caused, for example. Moreover, if the big sonegações tax and tax the defendant pays the amount due shall cease to be penalized, why in cases of crimes of trifle could not give the same referral?
It should be noted that the principles of law, although there are principles common to all the legal world, and that converge with each other, have their peculiarities, as the field of law to which we refer. In the example above, it was a principle of criminal law.
Why should we take the division of law, proposed by Hely Lopes Meirelles, before we proceed in analyzing the principles of law:
The law is divided initially into two main branches: Public Law and Private Law, depending on their destination. The Public Law, in turn, is divided into Internal and External.
The Public Internal seeks to regulate, primarily, the state interests and social care only reflexively individual behavior. Breaks down in Constitutional Law, Administrative Law, Tax Law, Criminal Law and Criminal Procedural Law and Judiciary (Civil and Criminal), Labor Law, Electoral Law, Municipal Law. This subdivision is not tight, even the emergence of other branches with the evolver of Juridical Science, which gives rise, each day, the specialization of law and the consequent formation of autonomous disciplines and diversified its sister.
The Public External intended to govern relations between sovereign states and individual activities at international level.
The private law protection predominantly individual interests, to ensure the coexistence of people in society and the enjoyment of their property and in relations from individual to individual, and in relations between the individual and the state. Bipartite to the Private Law in Civil and Commercial Law. (Meirelles, 2004)
Regarding the great divide between public law and private law, the Public Law is:
(...) The sector legal framework that regulates the exercise of state power, aimed at achieving common interests. The private law would be defined by exclusion as the set of rules governing relations between private individuals, in defense of their interests. Common interest and private interest appear, therefore, as differentiating criteria. (CRUZ <http://www.catolicavirtual.br/conteudos/graduacao/cursos/tec_seguranca_publica/html/1o_semestre/direito_ordem_publica/referencias.php>, 2002, p. 25)
Other fields of law have emerged and stood before the new requirements for legal protection, including point the Environmental Law, Consumer Law, the Law for Children and Youth, the Law of the Elderly, the Prison Law, the Aviation Law , Maritime Law, not to mention the large amount of legislation sparse - not codified - which aim to protect the social order and public order. This diversity does not imply autonomy, because the various fields of law establish a relationship of synergy between them. The legal world must be understood and interpreted as a harmonious whole.
Here's an example: someone who practices a crime provided for in any criminal law must answer for this. But the legislation that provides for the fact practiced as a crime is enough to propel the action of the state? The so-called jus puniendi- Right to punish? No, we will have to acudir procedural laws - Procedural Law - to take appropriate action if: Term Detailed, Auto Prison in flagrante delicto, the police inquiry, termination, among others.
2.4 Principles of Law
The principles of law may or may not be written in a normative manner, but somehow translate into supreme values and fundamentals dictated by society and / or the state in search of justice and peace.
Here are the most prominent:
§ the humanity
§ the dignity
§ the equality or equity
§ the Freedom
§ the legality
§ the morality
§ the insignificance
§ the prevention
Often, acting on a basic set of principles can safeguard the rights and guarantees of the individual or the rights and interests of collective or diffuse nature, which is why the basic, fundamental propositions that provide an opportunity or as a basis for standards to be applied when there is a risk of human rights violations.
For this reason it is quite instructive to Professor Celso Antônio Bandeira de Mello:
(...) Violating a principle is much more serious than violating a rule. Inattention to the offense implies not only a specific commandment required but the entire system of commands. It is the most serious form of illegality or unconstitutionality as the level reached in principle, because it represents insurgency against the whole system, subversion of the fundamental values unpardonable insults to their logical framework and corrosion of the master structure. (MELLO <http://www.catolicavirtual.br/conteudos/graduacao/cursos/tec_seguranca_publica/html/1o_semestre/direito_ordem_publica/referencias.php>, 2007, p. 300)
In this lesson we saw that the concept of law varies in time and space, as the culture, values and way of social and political organization. The conceptual meanings of right is based on the distinction between objective law, subjective rights and legal science. The right arises and manifests itself inspired by certain sources. When the principles are incorporated into the constitutional requirements, which represent the highest ranking law of the States, it is customary to call them standards set of principles. And it is about constitutional law that we will present below.
Lesson 03 - Administrative Law
The social life involves a series of interactions, relationships, modes of production, institutional bodies, regulation, control, finally, a set of people, aggregate, act with common goals that underlies the hope of satisfying their needs and peaceful coexistence.
To attain these objectives, it is necessary to structure a superior being, which we call the State which is empowered to intervene in the social dynamics for the common good and justice.
3.1 Concept of Administrative Law
The set of actions that must take action to achieve these goals, the state is guided by a field of the legal universe called Administrative Law, which has its own specifications and can be described as the harmonious set of legal principles governing bodies, staff and public activities aimed at achieving concrete, direct and immediately the desired state. (MEIRELLES <http://www.catolicavirtual.br/conteudos/graduacao/cursos/tec_seguranca_publica/html/1o_semestre/direito_ordem_publica/referencias.php>, 2004, p. 29)
It is clear that:
The modern state, to serve its full purpose, acts in three ways - administration, legislation and jurisdiction - and all they ask the advice of Administrative Law, regarding the organization and operation of its services, the administration of his property the regency of his staff and the formalization of their acts of administration. State operation only removes the administrative law in the presence of activities specifically legislative (law making) or characteristically judicial (court decisions typical). (Meirelles, 2004, p. 30)
The conceptual dimension of administrative law is not unique, why bring the translation of some scholars on the field of public law.
To Robertônio Person, the Administrative Law:
is the set of principles and rules that focus on disciplining the administrative activity of the state or who will sometimes make in order to carry out public purposes, within a legal and administrative. (PERSON <http://www.catolicavirtual.br/conteudos/graduacao/cursos/tec_seguranca_publica/html/1o_semestre/direito_ordem_publica/referencias.php>, 2000, p. 49)
Maria Sylvia Zanella Di Pietro said that:
is the branch of public law that aims to organs, agents and corporate administrative part of the public sector, the non-contentious legal activity and those holding property that is used to achieve their goals of a public nature.
To Toshio Mukai,
Administrative Law is a system consisting of rules of public law and rules forms of private law, which governs the government (in the broad sense), informed by principles of public law, and seeks to legitimate public workers. (MUKAI <http://www.catolicavirtual.br/conteudos/graduacao/cursos/tec_seguranca_publica/html/1o_semestre/direito_ordem_publica/referencias.php>, 1999).
Odete Medauar believes that the administrative law:
is the set of rules and principles governing the operation of public administration. Included in the branches of public law, dealing primarily by the organization, means of action, forms and legal relations of public administration, one of the fields of state activity. (Medauar <http://www.catolicavirtual.br/conteudos/graduacao/cursos/tec_seguranca_publica/html/1o_semestre/direito_ordem_publica/referencias.php>, 2002, p. 31)
Álvaro Lazzarini believes that administrative law is a branch of legal science that contains legal abstractions, which differentiate it from other branches that have their own codes or consolidations, which must be observed.
These concepts give us the dimension of the importance of administrative law as a regulator of public aid and administrative functions, especially those relating to the provision of public services, the police power and promotion.
With respect to administrative functions, in person Robertônio states:
Or the Administration is providing a public service to the population, such as light, water, telephone, transportation, either directly or through dealers and authorized, or is the order rights and activities, supervising, issuing permits, licenses, permits (police power) or is promoting any particular activity is significant and of public interest (encouraging). Such activities are traditionally governed by administrative law, when about the activities of non-Directors. (PERSON, 2000, p. 48)
3.2 Objectives of the Administrative Law
The Administrative Law regulates the government function, is defined as a state activity that accompanies the political activities of agents and government agencies, organizes the implementation of all the public purposes offered by the institutions and policies summit produces services, goods and utilities for society. (PERSON, 2000)
Thus, the central object of administrative law lies around the government function, being a public duty for those who teach. Behold, all administrative activity should be directed to the common good of the community that is being administered.
Under administrative law, there are two major principles that are the foundations of the system, namely:
· Principle of the supremacy of public over private.
· Principle of unavailability, the Administration, the public interest.
The Constitution of the Federative Republic of Brazil, in turn, other principles enshrined in the public administration, as provided in Article 37:
The government directly and indirectly from any of the powers of the Federal, State, Federal District and municipalities will follow the principles of lawfulness, impersonality, morality, publicity and efficiency (...).
Let each of these principles:
· Legality: the binding act of the administration and the public administrator, to the extent that their actions must be provided by law. Should the practice an act outside the law, beyond the act could become invalid, shall be subject to legal liabilities under administrative, civil and criminal matters.
· Impersonality: aims to prevent misuse of the practice of administrative acts and the promotion of public personnel.
· Morality: Includes the adoption of an ethical standard of behavior in the sense that the administration's actions are carried out fairly and in good faith, without deliberate harm to citizens.
· Advertising: the administration's actions should be made public, the more democratic control by society. The advertising is nothing more than make a public demonstration, which is done through official agencies to disclose, or the availability of papers and public documents for verification by interested parties, such as accounting, tendering procedures, opinions, contracts administration. It is noteworthy that such disclosure is not absolute, as there are acts and documents of interest with the society and the state can remain a degree of confidentiality, breach of which can hold the public official.
· Efficiency: as regards the viability of the act in effect, in fulfilling its purpose and serve the interests of the citizens.
Violation of these principles leads to a misapplication of the act, lawlessness and abuse of power, because, according to Hely Lopes Meirelles,
In public administration there is no freedom or personal will. While the particular administration is right to do everything that the law does not prohibit, in the public is only allowed to do what the law allows. The law for the particular means can do so, for the public official means to do so. (MEIRELLES <http://www.catolicavirtual.br/conteudos/graduacao/cursos/tec_seguranca_publica/html/1o_semestre/direito_ordem_publica/referencias.php>, 2004, p. 83)
Beyond these principles, others form the basis of interpretation and application of the acts of the Administration, among which include:
· Principle of reasonableness;
· Principle of proportionality;
· Principle of motivation;
· Principle of due process and legal defense;
· Principle of State liability for administrative acts;
· Principle of legal certainty.
3.3 Content of Administrative Law
The administrative law, while state public activity, includes a set of legal principles and rules governing the activities of public administration.
All citizens are directly linked to acts of administration which are both stakeholders in the state acts, either by suffering its effects.
The scope of work of the Administrative Law permeates questions concerning how to organize political-administrative government, forms of administration, administrative actions, administrative procedures, contracts, civil servants, police power and control of the administration, among others.
The levels of performance of public administration include the Union, states and municipalities. The typical services provided by the Administration organs, which include ministries and secretariats, as agents are public servants, or persons exercising office, employment or public office.
Therefore, the Government, through the action of its organs and agents, carries out actions for the public interest and welfare. In the objective sense, it carries the civil service, encompassing activities of administrative police, public service, encouraging the private activities of public interest and intervention in the public domain.
The Federal Public Administration is centralized in Brasilia - Distrito Federal.
- Esplanada dos Ministerios Brasilia-DF <http://www.brasil-turismo.com/distrito-federal/imagens/esplanada.htm>
Public administration can be centralized or decentralized. The administration is very centralized when it performs the public service, in this case called the Direct Administration and off-center when services are transferred to third parties perform, in this case by the Government indirect, by contracts of concession, permit or authorization public service, or for management contracts.
To understand better what the Government, let's see how is this structure, which was established by Legislative Decree No 200/1967, which, although it relates to the Federal Administration, serves as the basis for national administrations and municipalities.
Article 4 The Federal Administration includes:
I - Direct Administration, which provides integrated services in the administrative structure of the Presidency and the Ministries.
II - Indirect Administration, which includes the following categories of entities, endowed with legal personality:
c.Sociedades Mixed Economy.
The law itself gives us the concept of entities, along with having separate legal personality of the administration, conduct and practice acts that they are typical. Let then:
· Authority - standalone service, established by law, with legal status, own assets and revenues, to perform activities typical of public administration, requiring, for its better functioning, administrative and financial management decentralized. Example: Central Bank and regulatory agencies: the National Telecommunications Agency (Anatel), the National Petroleum Agency (ANP).
· Public Company - Contracting with a legal personality under private law with its own equity capital and the whole of the Union, established by law for the operation of economic activity that the government is taken to exercise under contingency or administrative convenience and could be of - is one of the forms allowed in law. Example: Caixa Economica Federal (CEF), the Brazilian Post and Telegraph.
The Society of Mixed Economy - Contracting with a legal personality under private law, created by law for the operation of economic activity in the form of a corporation whose shares with voting rights belong mostly to the body or the Government's indirect . Example: Bank of Brazil, Petrobras.
· The Public - Managing legal personality under private law, non-profit organization created by virtue of legislative authorization for the development of activities that do not require implementation by agencies or entities of public law with administrative, assets managed by their own management departments and operations funded by the Union's resources and other sources. Eg the National Indian Foundation and Educational Foundations.
The incorporation of these entities is to establish what type it is.
Robertônio Person (2000) understands that there may be three basic meanings of what would become the public service: large, medium and narrow. In the broad sense, it means that all state activity can qualify as a public service, encompassing, so the legislative and judicial activity. On average, considers the whole public service administrative activity, especially those developed by the Executive. And the restricted, it is more appropriate, where public services are seen as part of an administrative activity, ie those directly related to the provision of utilities or facilities specific to individuals, such as transportation, electricity, water, electricity, telephony, health, education, security, etc.. (PERSON, 2000, p. 295).
In any event, the Government directly or indirectly, is aimed at the achievement of certain services, called public. To Hely Lopes Meirelles, public service is any service rendered by the Administration orby their delegates under state control standards and to meet essential needs or secondary population or convenience of the State (Meirelles, 2004, p. 320).
For the concept of delegated administration or public official, acudimo us Julius Fabrini Mirabete:
For the purely administrative, civil servant was defined under Article 2 of the Statute of the former Civil Servants Union (Law No. 1711 of 28-10-1952) as a person lawfully invested in public office and public office as created by law, with denomination in right number and paid the coffers of the Union (MIRABETE <http://www.catolicavirtual.br/conteudos/graduacao/cursos/tec_seguranca_publica/html/1o_semestre/direito_ordem_publica/referencias.php>, 2005, p.?)
According to the author, in order to avoid disagreements and arguments concerning the concept of public official, and protect more effectively the Government, the Criminal Code as provided:
Place on parchment
Article 327. It is considered a public official, for the purposes of criminal law, who, although temporarily or without pay, holds a position, employment or public office.
§ 1 as equivalent to a civil servant who holds a position, job or function in parastatal entity, and those working for companies contracted service provider or outsourced to the implementation of activity typical of Public Administration.
The provision adopted by the Penal Code has a broader sense possible, corresponding to the doctrinal concept of public official (MIRABETE <http://www.catolicavirtual.br/conteudos/graduacao/cursos/tec_seguranca_publica/html/1o_semestre/direito_ordem_publica/referencias.php >, 2005).
3.4 Police Power
To achieve its purposes, the state needs some attributes and powers, of which the highlight is the police power, which, according to Celso Antônio Bandeira de Mello, is:
(...) The activity of public administration expressed in the normative or practical, to affect the ground in general and its supremacy to the law, liberty and property of individuals, sometimes through supervisory action, either preventive and sometimes repressive coercively imposing on individuals a duty of abstention (injunction) to conform their behavior to the social interests embodied in the regulatory system. (MELLO <http://www.catolicavirtual.br/conteudos/graduacao/cursos/tec_seguranca_publica/html/1o_semestre/direito_ordem_publica/referencias.php>, 2007, p. 675)
The National Tax Code - Law No. 5172 of 25/10/1966 - sets the Power of Police precisely:
Article 78. It is able to police the activity of public administration that limiting or disciplining right or liberty interest, governs the performance of an act or failure to fact, because of public interest concerning safety, hygiene, order, morals, the discipline of production and market, the pursuit of economic activities dependent on a license or authorization of the Government, the public peace or respect for property and individual rights and collective.
Sole Paragraph. Considered to regulate the exercise of police power when played by the competent body within the limits of applicable law, in compliance with the legal processand, in the case of activity that the law has the discretion, without abuse or misuse of power.
Thus, the prohibition of a building with no security against fire, the seizure of a vehicle with illegal documents, the sealing of a company that did not meet environmental laws, actions are guided by the power of police under the jurisdiction of public the exercise of their functions.
However, we must not forget that the police power is not unlimited, but based on law and the requirements laid down in Article 78 of the CTN:
· Advir of authority and the competent body.
Have · legal support.
· Compliance with the legal process.
· Practiced without abuse or misuse of power.
Luiz Henrique Cademartori Urquhart said the Police Power:
(...) Is on limitations imposed by the Government to liberty and property of the citizens, within the limits of the law, which in turn regulates the rights and fundamental guarantees (Articles 5 to 17 of the Federal Constitution ). All this comes as a result of police action of his administration. This, in turn, not be confused with the judicial police, or civilian police (federal or state) that are legally subject to the Criminal Code and whose work is investigative in nature and ostensibly about people, individually or in general. Also not to be confused with the so-called police to maintain public order (military police) that are legally subject to a Military Penal Code, also acts prominently on people. (CADEMARTORI <http://www.catolicavirtual.br/conteudos/graduacao/cursos/tec_seguranca_publica/html/1o_semestre/direito_ordem_publica/referencias.php>, 1999, p. 55)
Other kinds of powers of the Public Administration are:
Discretion: It is what the law gives the administration explicitly or implicitly to the practice of administrative acts with freedom to choose your convenience, timeliness and content.
Binding power, it is that the law empowers the government to commit acts of jurisdiction, determining the elements and requirements for its formalization.
Hierarchical power: the degree of competence. We work with the idea of subordination of administrative activities.
Disciplinary power: the power to punish violations internally functional servers and other persons subject to the discipline of bodies and the administrative services. (Meirelles, 2004, pp. 115-122)
The administrative powers are inherent to the activities of government and seek support for the interests of the community can be realized. They are instrumental nature, ie should be able, requiring the agents and the public actions attached to public demands upon him to attend.
It should be noted that any act performed in excess or abuse of power can blame the staff and the public by ensuring that affected the right to appeal, which is guaranteed by the Constitution of the Federative Republic of Brazil in 1988, in its Article 5:
XXXIV - are guaranteed to all, regardless of the payment of fees:
a) the right to petition the Government in defense of rights or against illegal acts or abuse of power;
b) the obtaining of certificates from government offices, to defend rights and clarify situations of personal interest; (...)
LXIX - will be an injunction to protect a clear legal right is not protected by habeas corpus or habeas data, while responsible for the illegality or abuse of power is a public official or a legal entity in the exercise of public power .
Habeas corpus is a legal instrument that may be worth the run, where one experiences or if you feel threatened by violence or coercion in their freedom of movement due to unfairness or abuse of power by an agent of the government.
The habeas data seeks to ensure knowledge of information contained in records or databases of government or public character. It is also used for the correction of data, when not prefer to use the process of the secretive nature of judicial or administrative character.
An example of pertinence of habeas corpus in the case of a prison that does not comply with the legal formalities and without apparent motivation, as someone who does not hold documents, but that did not refuse to identify themselves.
As an example of habeas data, there is the case of someone who, having been acquitted of a crime, continue to see his name registered in INFOSEG (Information System for Public Security), which may then seek an administrative or judicial review, to his name no longer recorded in respect of alleged culprits.
3.5 Administrative Acts
Public Administration externalize their wills and actions by administrative acts, which aim to acquire, preserve, transfer, modify, terminate or declare rights or impose obligations to citizens and public officials (MUKAI, 1999, p. 210) .
The prevailing doctrine believes that there should be five requirements for the administrative act is of the necessary effectiveness and validity, which are:
· Competency should be practiced public officer clothed with power to such action.
· Objective: The administrative act must comply with public purposes specified or provided by law.
· Object: refers to what appears in the act, its content. When the act is provided by law, it is called an act bound, or when it is the responsibility of choice for the public servant, he is called a discretionary act.
· Form: is the way the act is externalized. Failure to observe the way the act can suggest is invalid. Hely Lopes Meirelles notes that:
The normal form of the act of administration is written, although there are acts embodied in verbal orders, and even in conventional signs, as with the instructions of more than momentary less hierarchical, with the determination of police in emergencies and with signaling transit. (Meirelles, 2004, p. 150)
· Reason: are the reasons of fact or law that prompted the development of the act. The reason, like the object of the act, or is provided by law and is bound, or at the discretion of the agent, being called discretion.
There are also the attributes of administrative acts, which are the prerogative to achieve its purposes, which include:
Presumption of legitimacy under the law, unless proven otherwise.
Imperative:power to impose the act to individuals.
Enforceability: possibility of forcing the administration managed to obey the act.
Enforceability: quality through which the Government may require the recipient physically act to fulfill its determination regardless of prior judicial authorization. (CADEMARTORI, 1999, p. 15)
The main administrative acts, we highlight the following:
· Permission: It is a unilateral act of the discretionary, individually and poor, through which the Government provides the use of public property by private, for example, the installation and operation of a kiosk in a public square.
· Authorization: it is a discretionary act (there are exceptions as in the case of telecommunications), individual and precarious, in which the administration gives someone the right to certain activities. As an example, we have the permits for any mineral deposit and authorization to carry weapons.
· License: is bound by an act through which the Board gives someone the right to perform an activity, provided that they meet certain conditions given by the law. As this is an act bound, then the administration can not deny the request. Eg planning permission or building permit.
Luiz Henrique Cademartori Urquhart says:
There are certain administrative acts which are not presented according to specific contents, but as mere instruments of formal manifestation of other administrative acts, which have characteristics different from each other and have on certain subjects. Are:
Decree: formula by which the Chief Executive (at any level) sends acts within its competence private. Examples: who issue decrees regulations (Decree-regulation), so one type of legislative act to stamp abstract and general, so a kind of legislative act to stamp abstract and general, as mentioned above, and decrees which declare a property of public utility (Expropriation Decree), which convey a kind of individual act and concrete.
Ordinance: formula by which the lesser of the chief executives or receiving of internal decisions - which can be of various types, such as provisions on the progress of bureaucratic activity, opening of inquiries, investigations or administrative disciplinary action - or even external acts, such as ministerial orders.
Alvaro: formula used to issue both licenses and permits.
Resolution: formula used to express various types of deliberations collegiate organs and also in some cases, decisions of an authority's interests lie. (CADEMARTORI, 1999, p. 41)
The extinction of administrative acts can happen when it reaches its effects, that is, the goals of the Public Administration for defects found in the act that generate it void or for reasons of convenience and opportunity, where the administration discretion to act repealing the act.
We still have the contracts, which are one way the state relates to individuals, through a pact, which has some rights which relate to the public interests at stake.
In this type of contract, there is a legal submission to the public, distinguishing themselves, so the contracts between individuals who are governed by private law common.
So we have to purchase a property or its lease for a loved Administration are examples of private law contracts concluded by the administration, since the concession of public transport is one of the contracts.
Currently, the law of tenders, Law No. 8666/93, governing public contracts awarded by public authorities.
Administrative contracts are called:
(...) Contracts in public law, or simply procurement. They appear as agreements that the Government, in this condition, celebrates with private individuals (or businesses) or public, to achieve public purposes, and within a system of public law. These are, for example, the contract for public works in order to build a highway or dam, and the concession of public service. (PERSON, 2000, p. 254)
In this class we study the various conceptual dimensions of Administrative Law. We also saw the importance of administrative law, its principles, concepts, major institutions and their purpose in a democratic state of law, aimed mainly to give citizens a way to efficient administration and democratic. Public safety includes a number of administrative activities of the state, hence the importance of knowing the Administrative Law.
Lesson 04 - Constitutional Law
Since man is aggregated and organized in communal societies, forming peoples, nations and states, the need emerged for a set of standard character than regulate relations between people, to contain the powers of governments and ensure a series of rights and guarantees of persons. Thus we need the roots of constitutional law, which will be the theme of this lecture.
4.1 Concepts of Constitutional Law
Junior Gabriel Dezen tells us about the work of Aristotle, called the Policy:
In politics, this eminent Greek, we find that the Constitution of the State focuses on the organization of the judiciary, the distribution of powers, the powers of sovereignty, in short, the determination of the special purpose of each political association. This concept is amazingly close to understanding it would require centuries past. (DEZEN JUNIOR <http://www.catolicavirtual.br/conteudos/graduacao/cursos/tec_seguranca_publica/html/1o_semestre/direito_ordem_publica/referencias.php>, 1998)
However, having a dimension that comes from the states of classical antiquity, the term constitutional law is incorporated into the legal universe of people considered to be developed at the political triumph of some doctrinal and ideological principles that have been imposed in the consolidation of the Modern State, more precisely during the French Revolution, which served as inspiration for the political forms of the Liberal rule of law or Constitutional State (BONAVIDES <http://www.catolicavirtual.br/conteudos/graduacao/cursos/tec_seguranca_publica/html/1o_semestre/direito_ordem_publica / referencias.php>, 2005).
Dezen Junior (1998, p. 11) brings us some concepts of national doctrine on constitutional law:
• It is the branch of law that studies the workings of the state, its political system and its governmental structure.
• It is the science of legal rules according to which it is established, transmits and exercises authority.
·Branch of the Public Law that states, interpret and articulate the principles and norms of the rule (José Afonso da Silva)
• It is a positive science of the Constitutions (Pinto Ferreira).
• It is the methodical study of the Constitution of the State, its political institutional structure and legal (Afonso Arinos).
• It is the systematic knowledge of legal rules about how the state, form of government, providing for the acquisition and exercise of power and the establishment of its institutions and the limits of its action (Manoel Gonçalves Ferreira Filho).
Some aspects are the basis of constitutional law, common to the concepts presented, which concern the form of state organization, nationality, the organization of powers and the rights, freedoms and guarantees of citizens.
The Constitution of a State is considered the law of laws, housing the social compact that allows the peaceful life in society. All other rules and regulations shall comply with the constitutional dictates.
4.2 The Constitutional Principles and their Implication in Brazilian Culture & Lifestyle
Brazil, since the time of the flagships hereditary, passing through the monarchic period, and the current phase Republican has advanced in its political and constitutional structure. The basic principle of constitutional norms in Brazil suffered significant influences of their socio-historical moments.
The constitutional principles are divided into two categories: political and constitutional principles and legal and constitutional principles.
The political and constitutional principles are derived from key policy decisions, which are consolidated in constitutional positive, regulating the relations of social life, specifically those relating to the political organization of the nation. They set out in Articles 1 to 4 of our Constitution, as transcribed below:
Article 1 The Federative Republic of Brazil, formed by the indissoluble union of states and municipalities and the Federal District, is in a democratic state of law and is founded on:
I - the sovereignty;
II - citizenship;
III - the dignity of the human person;
IV - the social values of work and free enterprise;
V - political pluralism.
Sole Paragraph. All power emanates from the people, who exercise it through elected representatives or directly under this Constitution.
We can see that Brazil has adopted federalism as a form of state, which implies the union of autonomous entities, called Länder, also often referred to as the United States or United States only. Also entering this composition called the Federal Territories, the Federal District and municipalities, which are now included in the Brazilian political organization.
The Federated States only have autonomy and are legally called a legal entity governed by public law. Sovereignty is the peculiarity of the Federal Government, considered the supreme power in the consistent ability to self-determination (SILVA <http://www.catolicavirtual.br/conteudos/graduacao/cursos/tec_seguranca_publica/html/1o_semestre/direito_ordem_publica/referencias.php>, 2007, p. 100).
Citizenship as one of the foundations of the Republic demonstrates the importance of the Brazilian state grants to its citizens. Implies the relevance of the condition of participation of its people as a component separate from the actions of government and the recognition of each person as part of the process of historical and social transformation.
Citizenship derives one of the basic assumptions which is to be a citizen, which is the portion of the people who holds active electoral capacity, ie the power to vote, and thus interfere with political decisions and institutional life in Brazil, direct or indirectly (DEZEN JR, 1998, p. 143).
The dignity with regard to the assessment of the human person as the center of the universe of legal protection and should be protected against any act prejudicial to their existence and subjectivity.
The social values of work and free initiative require the worker to ensure features that allow you access to goods worthy of life and social rights guaranteed, as well as entrepreneurs and effective participants in the economic life of the state, an area protected from unlawful market monopolies and oligopolies (DEZEN JR, 1998, p. 143).
Finally, we have the political pluralism, respect of freedom to express their design and political choice.
In Article 2 of the Constitution of the Federative Republic of Brazil we have:
Are the powers of the independent and harmonious among themselves, the Legislative, Executive and Judiciary.
This is the classic tripartite division of powers, seeking a balance of forces to avoid arbitration, one of the basic principles of constitutional organization.
Paulo Marcio Cruz tells us that:
The doctrine of separation of powers has abundant historical background, but it was Montesquieu who defined it in its most influential to the development of constitutionalism. These backgrounds are represented in the historical reality of repeated schemes where several different centers of power and also the realization that it is necessary to distinguish between the various functions performed by the State. (CRUZ <http://www.catolicavirtual.br/conteudos/graduacao/cursos/tec_seguranca_publica/html/1o_semestre/direito_ordem_publica/referencias.php>, 2002, p. 99)
In the work of Spirit of the Laws Montesquieu wrote:
(...) Experience shows that every man who has power tends to abuse it and uses it to find a limit. Who would think that even virtue has limits? For no one can abuse power, to be achieved through an appropriate ordinance, that the power brake power. (MONTESQUIEU <http://www.catolicavirtual.br/conteudos/graduacao/cursos/tec_seguranca_publica/html/1o_semestre/direito_ordem_publica/referencias.php>, 1960, p. 173)
None of powers - executive, legislative and judicial - has an exclusive assignments to administer, legislate and judge. In fact, there is enough stock in their assignments. Nevertheless, there is prominence in the exercise of these actions by each of the powers is peculiar.
Thus, the Legislature also administers and judges, as in the case of the Board of Ethics. The judiciary sometimes laws, as in the case of ordinances and resolutions, and the Executive, in addition to practicing typical acts of management, sometimes judges (Disciplinary Councils) and laws, decrees or if the Provisional Measures of the Executive.
And Article 3 of the Constitution of the Federative Republic of Brazil in 1988 asserts that:
Article 3 The fundamental objectives of the Federative Republic of Brazil:
I - to build a free, fair;
II - guarantee national development;
III - to eradicate poverty and marginalization and reduce social and regional inequalities;
IV - to promote the good of all, without distinction of origin, race, sex, color, age and other forms of discrimination.
This article deals with goals to be achieved by the Brazilian state. These goals have to meet a condition of dignified life for the citizens and must be constantly followed.
We also have the provisions of Article 4 of CRFB/88, which deals with the way that Brazil is governed in its international relations, which prevail in the following principles:
· National independence;
· Prevalence of human rights;
· Self-determination of peoples;
· Equality among States;
· Defense of peace;
· Peaceful settlement of conflicts;
· Repudiate terrorism and racism;
· Cooperation among peoples for the progress of humanity;
• granting of political asylum.
On the importance that Brazil has achieved in international relations, Celso Ribeiro Bastos says:
In addition to these principles that aim to respect for national independence and other nations and peoples, Brazil joins the fight for human rights, this centuries-old struggle. So is obliged to provide sanctuary, for example, the Universal Declaration of Human Rights, adopted by the UN General Assembly on December 10, 1948, and consequently is also required to dismiss any violation of these rights. (BASTOS <http://www.catolicavirtual.br/conteudos/graduacao/cursos/tec_seguranca_publica/html/1o_semestre/direito_ordem_publica/referencias.php>, 1994)
It is noticed that the first four articles of CRFB/1988 contain basic postulates as a basis for the interpretation of any text.
We study on the Constitutional principles of the Federative Republic of Brazil, which are enshrined in Articles 1 to 4 of the Constitution, providing the basis for the interpretation of other devices.
We have seen that CRFB of 1988 is founded on: the sovereignty, citizenship, human dignity, social values of work and free enterprise and political pluralism. The nickname comes from the Citizen Constitution provided for in Article 3, the relevance that gives citizenship rights and points out the objectives of the Republic.
The prevalence of human rights and protection of peace are treated as one of the basic objectives in international relations.
Lesson 05 - Rights and Duties of Individual and Collective
In the search for consolidation of a more free, fair, minimizing inequalities of all kinds, the 1988 Constitution sought to protect a set of fundamental rights and guarantees for the citizen. Article 5 of the Constitution of the Federative Republic of Brazil from 1988 shows the set of rights and duties of individual and collective, which give priority to life, liberty, equality, safety and property.
Incisions 5.1 of the Constitution dealing with the Rights and Duties of Individual and Collective
I- Men and women are equal in rights and obligations under this Constitution.
Here it is a formally established equality, but it must be appropriate in each case, noting the peculiarities and individuality of each person: adult, child and elderly, men, women and people with special needs.
II - nobody is obliged to do or not do something except by virtue of law;
This device provides for freedom as the supreme good, meaning that any act of the Government shall be valid only if you agree with the law.
IV - is the free expression of thought, anonymity is forbidden;
This aims to ensure the freedom of individuals to express themselves and express their views, beliefs and values. However, this right is not unlimited, which is why it prohibits anonymous, so that any affected have the right to respond to any injury suffered or to blame the person who carried to excess, as in the case of someone who practices act obscene on the streets.
VI - is inviolable freedom of conscience and belief, being guaranteed the free exercise of religious cults and guaranteeing, as provided by law, the protection of places of worship and their rites;
The Brazilian government is secular, that is, has autonomy and independence with regard to religions, but protects people with regard to their religious beliefs.
IX - is the free expression of intellectual, artistic, scientific and communication, regardless of censorship or license;
The State does not intervene in the expressions of opinion grounded in knowledge and does not exercise any control over them unless configure abuse of rights, for example, if someone slanders a person in the body of scientific work.
X - are inviolable intimacy, privacy, honor and image of the people, ensured the right to compensation for property or moral damages resulting from the violation;
Anyone breaking the intimacy, privacy, honor and image of persons are subject to administrative sanctions, civil and criminal penalties.
XI - the home is inviolable asylum of the individual, no one may enter it without the dweller's consent, except in cases of flagrante delicto or disaster, or to give help, or during the day, by court order;
The domicile of the individual, the place where lives with his family, is considered a sacred environment, in the sense that it can not be violated. If there is no violation to satisfy the legal formalities, the violator may account for the crime of abuse of authority which, under Article 4 of Law No. 4898/65, is to perform custodial sentence individual without legal formalities or abuse of power.
XII - is inviolable secrecy of correspondence and of telegraphic, data and telephone communications, except in the latter case, court order, in the cases and manner provided by law for purposes of criminal investigation or criminal proceedings;
Here also the constitution seeks to protect the privacy of the individual and prevent injury to people. In Article 151, Criminal Code defines as a criminal violation of the correspondence of others:
Article 151. Unduly penetrate the contents of sealed correspondence addressed to others:
Penalty - detention of 1 (one) to 6 (six) months or a fine.
§ 1 - The same penalty:
I - who wrongly takes possession of correspondence of others, though not closed, in whole or in part, to cheat or destroy;
II - who improperly disclose, transmit to another person or uses abusive radio-electronic or telegraphic communication addressed to third, or telephone conversation between other people;
III - who prevents communication or conversation referred to in the preceding paragraph;
IV - who installs or uses radio-electric station or device, without regard to legal provisions.
XIII - is free to engage in any work, trade or profession, observing the professional qualifications established by law.
The person may practice as you want, provided that meets the requirements that are imposed by legislation, such as medicine, law, public office or duties.
The illegal practice of profession, that is, without appropriate qualifications, may hold the person criminally: Article 282 of the Penal Code - the illegal practice of medicine, dentistry or pharmaceuticals - and Article 47 of the Criminal Law of Misdemeanor, which deals with unlawful exercise of profession or activity.
XV - is free to travel in the national territory in peacetime, and any person under the law, to enter, remain or leave it with his property;
People have the freedom to move freely throughout the country, without any restriction.
XVI - all can come together peacefully, without weapons, in places open to the public, regardless of authorization, provided that frustrates another meeting previously called for the same spot and the only required notice to the competent authority;
So, are free meetings and demonstrations in places accessible to the public: parades, events, concerts, among others.
XVII - is full freedom of association for lawful purposes, prohibited the paramilitary;
Anyone can form an association, provided it has not unlawful purposes or a paramilitary.
XXII - is guaranteed the right of property;
XXIII - the property must fulfill its social function;
The Constitution guarantees the right of property, provided that the property has a social function, either as álveo family housing, either as an institution of economic relations. The limitation of the property is given in the following item:
XXIV - The law shall establish the procedure for expropriation for public necessity or use, or for social interest, with fair and prior compensation in money, except in the cases provided for in this Constitution;
XXVII - belongs to the authors the exclusive right to use, publication or reproduction of their works, transmissible to heirs as long as the law may establish;
The common law (infra) protects the intangible property, which is known as the Copyright Act.
The Penal Code has a chapter dealing specifically with this theme-Infringement of Copyright - Articles 184 to 186.
XXXIV - are guaranteed to all, regardless of the payment of fees:
the right to petition the Government in defense of rights or against illegal acts or abuse of power;
ba obtaining certificates from government departments, to defend rights and clarify situations of personal interest;
This is to allow citizens the 'right of petition the Government, which should provide an answer, unless the documents guarded by some degree of confidentiality provided by law.
XXXV - the law does not exclude consideration of the Judiciary injury or threat to law;
Access to justice is a right for all and should not be nothing to prevent such access. In the resolution of their conflicts people can count on the manifestation of the judiciary, which, in turn, declare the proper law.
XXXVI - the law does not impair a vested right, the perfect juridical act and the res judicata
According to Paulo de Carvalho Calgaro:
• Law acquired: it is the right of any nature that has been incorporated into the patrimony of the person. What has been achieved under the old law will not be modified by the new law.
· Perfect legal act: it is the manifestation of the will of the agent under the requirements of law. The law also provides, in its fullness, the perfect juridical act, or the new law can not reach positions that are already consolidated under the rule of the old law, although it was the perfect juridical act.
Discussions about trial: is the situation with the court decision against which no appeal. Not allowed, so that the new law will interfere with the vested right, the perfect juridical act and the res judicata. (CARVALHO <http://www.catolicavirtual.br/conteudos/graduacao/cursos/tec_seguranca_publica/html/1o_semestre/direito_ordem_publica/referencias.php>, 2006, p. 49)
The vested right, the perfect juridical act and the res judicata are therefore basic legal institutions should be required to observe a democratic state.
XXXIX - no crime without a previous law which defines it, nor punishment without a previous legal imposition;
It is the famous principle of legality under Article 1 of the Criminal Code, which implies not be able to criminalize the fact someone is not explicitly mentioned as a crime.
XL - the law shall not be retroactive, except to benefit the defendant;
That is, if certain conduct is no longer criminalized, such as adultery, for example, someone who was being sued by the fact that nature no longer account for such a practice.
Also, one could not make retroactive a bill that saw crime as the fact that one drink in gyms football. Criminal law applies to forward, never backward.
XLI - the law shall punish any discrimination against the rights and freedoms;
Thus, any act prejudicial or discriminatory on the freedom, dignity, integrity, or prejudice based on race, color, religion, or ethnicity, subject the violator to penalties of the law.
XLII - the practice of racism is a non-bailable and indefeasible, subject to imprisonment under the law;
Crimes resulting from prejudice of race or color are defined in Law No. 7716 of 5 January 1989. For example, we have provided in Article 7 provides that a crime the fact that: prevent access or refuse service at restaurants, bars, cafeterias and similar places open to the public.
XLIII - the law consider crimes unbailable and not of grace or amnesty for torture, trafficking in narcotics and related drugs, terrorism and heinous crimes as defined by them answering the principals, performers and those who can avoid them to omit.
The relevance of these practices criminal behavior and its implications in the context of public order and social peace, the legislature gave them the character of no bail, nor allowed them to grace or amnesty, the latter two forms of pension benefits law, with the extinction , reduction or commutation of sentence.
XLVI - the law shall regulate the individualization of punishment and adopt, among others, the following:
a.privação or restriction of liberty;
b.perda of goods;
d.prestação alternative social;
e.suspensão or disqualification;
The penalty is a penalty that the state imposes on those who committed an act prescribed by law as a crime. The images show that is not fulfilling its role grasped.
XLVIII - the penalty will be served in separate establishments, according to the nature of the offense, the age and sex of the convict;
XLIX - prisoners are ensured respect for the physical and moral integrity;
L - convicts are able to maintain contact with their children during the period of breastfeeding;
The arrest relates not only to impose a punishment condemned, but allow the so-called rehabilitation. In fact, it would be more correct to say social reintegration. For this reason, the constitutional legislator expressed concern in that it respects the prisoner as a human in the fullest sense of the term, and that the state give you decent so you can return to social life. Unfortunately it is not what is happening in the country's prisons, overcrowded, unhealthy and violent.
LIII - no one will be prosecuted or sentenced except by the competent authority;
The only representative of the sentence can someone is called a court, representing the state, Judge. No one else is provided sentencing someone, or to the ordinary legislator, and neither the police nor the armed forces.
LIV - no one shall be deprived of his liberty or property without due process of law;
This device is a formality which aims to playing on the actions of the state, so that acts in a manner linked to the law, without abuses or arbitrary when suing someone. The form is consecte the exercise of the rights and freedoms.
LV - litigants, in judicial or administrative proceedings and defendants are usually guaranteed the contradictory and full defense, with the means and resources inherent to it;
LVI - is inadmissible in the proceedings, evidence obtained by illegal means;
Any evidence that is obtained by illegal means will be void. A confession obtained through torture or wiretapping done illegally and without warrants may be considered illegal evidence.
LVII - no one will be considered guilty until a final and unappealable penal sentence;
Until more is not for appeal, the accused should be acquitted. Unfortunately, it is not what you see in the daily pages of Brazilian police, which show changes in the criminalization of poverty.
LVIII - civil identification shall be subject to criminal identification, except in cases provided by law;
This provision prohibits the identification datiloscópica, which is to smudge the fingers in ink and affixing the fingerprints on paper for identification purposes if the person is already identified with identity card or other means of identification.
According to Paulo Carvalho,
Law No. 10,054 of December 7, 2000, which provides for the criminal identification provides the chance of identifying datiloscópica (criminal), for example, when there is a founded suspicion of forgery or tampering of the identity document or any record gathering of the identity document. (CARVALHO, 2006, p. 54)
LXI - nobody will be arrested except in flagrante delicto or by written and substantiated order of the competent judicial authority, except in cases of military transgression or military crime, as defined by law;
This is important and interesting reference to do that is deemed illegal and unconstitutional arrest for investigation, constituting abuse of authority, however much one wants to justify its applicability in the repression of crime detention.
Regarding the criminal matter and rights of the accused and arrested, we have the following devices that are clear as to its application:
LXII - the arrest of any person and where you are will be reported immediately to the judge and to the inmate's family or the person appointed by him;
LXIII - the prisoner shall be informed of their rights, including the right to remain silent, being assured the support of family and lawyer;
LXIV - the prisoner is entitled to identify those responsible for his arrest or his police questioning;
LXV - the illegal arrest shall be immediately remitted by the judicial authority;
LXVI - no one will be taken to prison or held therein, when the law admits to bail, with or without bail;
LXVII - there will be civil imprisonment for debt, except the person responsible for voluntary and inexcusable default of alimony obligation and that of an unfaithful trustee;
The next sections deal with the constitutional guarantees in case someone suffers human rights violations, we have just seen, which is why you can rely on one or more of the following devices:
LXVIII- Grant the right to habeas corpus whenever someone suffers or if you feel threatened with violence in their freedom of movement, for illegality or abuse of power;
LXIX - will be an injunction to protect a clear legal right is not protected by habeas corpus or habeas data, while responsible for the illegality or abuse of power is a public official or a legal entity in the exercise of public power ;
LXXI - grant will be an injunction where the lack of regulations makes it impossible to exercise the constitutional rights and liberties and the prerogatives inherent to nationality, sovereignty and citizenship.
LXXII - grant the right to habeas data:
GetAccessControl ensure knowledge of information concerning the person of the petitioner contained in records or database of governmental and public character. (P. Ex. Person requesting verification if your name is on the database INFOSEG - Information System for Public Safety)
b. For the correction of data, when not prefer to do so through confidential, judicial or administrative.
LXIII - any citizen has standing to propose action seeking to annul an act of public property or an entity in which the State participates, to administrative morality, the environment and the historical and cultural heritage, and the author, unless proven bad faith, be exempt from court costs and the burden of defeat;
They are also constitutional guarantees the right of that prove insufficient resources to have legal aid and complete. Are free for all actions of habeas corpus and habeas data, as well as other acts necessary for the exercise of citizenship rights.
One aspect that deserves mention, when we standards principles, and fundamental rights and guarantees under the Constitution of the Federative Republic of Brazil in 1988, is with regard to their immediate implementation, referred to in paragraph 1 of Article 5, which provides that the provisions defining the rights and guarantees are applicable immediately. For their relevance are also called immutable clauses, ie, can not be modified by any legislation, except by another Constituent Assembly.
This is a formal guarantee that must be pursued so incessant, so that the fundamental objectives of the Republic to be met, especially to build a free society, justice and solidarity.
It does not refer to the social or collective, which included education, health, work, housing, leisure, security, social security, maternity protection and child and assistance to the destitute, which are task of the Government carry out and promote.
We end this lesson here. Here, we study the set of rights and guarantees of citizens, which resulted in a history that established the protection of life, liberty, security and property, protecting all who are in the Brazilian legal order of any violation.
No person may have violated any of the rights provided for in Article 5 of the Constitution of the Federative Republic of Brazil, which are the basis of the Brazilian State, which increasingly seeks to consolidate as a rule of law and social justice.
Class 06 - Public Order and Public Security: Principles and Precepts of the Federal Derivatives
Increasingly, companies and the attempted to adjust their laws to the new requirements for the exercise of citizenship rights, and are based on actions that converge towards the welfare state, the individual and collective interests, and can leave the well guarded common and social peace. These are the goals of the Modern State.
The speed with which have been occurring social changes, migration and urbanization of places and the concentration of population, the imbalance between capital and labor, the concentration of income, unemployment, lack of planning of public policies for basic care to population, the deterioration of values, among other things, has reduced the quality of life in all sizes, resulting in a feeling of uneasiness and insecurity public is becoming general.
6.1 Public Safety and its agencies responsible
Although one can not forget the responsibility of the protagonists in protective actions, social security and defense, that we may not be the sole holder of such steps, especially in a society increasingly contentious and violent.
In this sense, the Constitution of the Federative Republic of Brazil in 1988 (CRFB/1988) has a specific chapter dealing with public safety and provides, in Article 144, a design on it.
Article 144. Public safety, the duty of the right and responsibility of all, is exercised to preserve public order and safety of persons and property, by means of the following agencies:
II.polícia federal highway;
III.polícia federal railway;
V.polícias military and fire brigades.
Then the CRFB/1988 defined institutional responsibilities of state organs responsible for more direct public safety in the country, which have specific characteristics dictated by the constitutional principles that are materialized in their ways of operating.
About the Federal Police, states the article 144, § 1, sections I to IV that this is intended to:
I - investigate criminal offenses against the political and social order or to the detriment of goods, services and interests of the Union or its local authorities and public enterprises as well as other offenses with interstate or international effects and requiring uniform repression second is available by law;
II - to prevent and suppress trafficking in narcotics and related drugs, smuggling and contraband, subject to action by the treasury and other government agencies in their areas of competence;
III - act as marine police, airport and border;
IV - exercise, with exclusivity, the functions of judicial police of the Union
The Federal Highway Police Federal Railroad and it also in accordance with paragraphs 2 and 3 thereof, respectively:
§ 2 The federal highway police, a permanent body and maintained by the Union and structured into a career and intended, according to the law, to ostensibly patrol the federal highways.
§ 3 The federal railway police is a permanent, organized and maintained by the Union and structured into a career and intended, according to the law, to ostensibly patrol the federal railways.
The civilian police, the CRFB/1988 established that:
§ 3 civilian police, led by police officers career, incumbent, subject to the jurisdiction of the Union, the functions of judicial police and the investigation of criminal offenses, other than military.
Despite being under chapter dealing with public security is unwavering civilian police that they are also of some typical functions of police management, a function of an instrumental nature turned the ball court, the administration of criminal justice, especially for conducting research criminal, which is formalized in the police inquiry and serves as subsidies for the possible initiation of a prosecution.
In fact, the civilian police end up exerting a more important function of police enforcement, ie post-crime activity, which best fits the role of police.
In paragraph 5 sets out the functions and powers of military police and fire brigades:
§ 5 The military police is responsible for the ostensive policing and the preservation of public order to fire brigades, in addition to the duties defined by law, responsible for implementing the activities of civil defense.
The overt police activity and the preservation of public order had deserved constitutional status, whose competence has become the exclusive nature of the military police.
Police maintenance and preservation of public order, or the military police of the states, has the institutional mission called the creation of visible policing, which, according to Regulation 200 (R-200), is the police action, exclusive of Military Police, whose job the man or the fraction of troops engaged are identified at a glance, whether the uniform or the equipment or vehicle, aiming to maintain public order.
For police overt means and aims primarily to prevent the occurrence of facts tort, where the military police is identified at a glance, is the uniform, whether the equipment or vehicle.
Therefore, the police ostensibly highlights the preventive and repressive actions.
· Be preventive when the mere overt police presence and are sufficient for the maintenance of public order.
· Be repressive when there is some kind of commitment to public in general when there is the practice of a criminal offense, where the police action will involve the constriction necessary to maintain public order, ranging from mediation of the conflict, which must have primacy in resolving social problems, even, if necessary and as a last resort, containment, holding and conducting of possible contenders law.
Decree Law No. 667 of 2 July 1969, regulates the mode of action of the Military Police:
Article 3 Instituted for the maintenance of public order and internal security in the States, Territories and the Federal District, it is for Military Police, under their respective jurisdictions.
a) performing an exclusive, reservations peculiar tasks of the armed forces for patrolling in uniform, designed by the competent authority to ensure compliance with the law, maintaining public order and the exercise of the powers that be;
b) to take preventive action, as a force of deterrence, in specific places or areas where it can be presumed to disturbance;
c) act in a repressive, in case of disturbances, preceding the eventual employment of the Armed Forces;
6.2 Public Order and Policing
For the activities of maintaining public order, the actions may have a preventive character as repressive as that eventually subdivided into two main types of policing, policing and urban areas, which are held by the combination of the following types or forms of policing :
· Patrolling on foot <http://www.pmpr.pr.gov.br/pmpr/modules/conteudo/conteudo.php?conteudo=1356> <http://www.catolicavirtual.br/conteudos/graduacao/cursos / tec_seguranca_publica/html/1o_semestre/direito_ordem_publica/aula_06 />
According to the Basic Guide Policing Ostensive Military Police of São Paulo:
In urban areas, are employed in offices located in residential areas of high population density or mass concentration of vertical buildings, in areas of concentrated commercial public places, particularly where vehicular traffic is prohibited and the predominant movement of pedestrians; coverage the public entertainment and special events.
In rural areas, employment is usually restricted to stay, given its limited mobility, or the coverage of special events. (PMSP <http://www.catolicavirtual.br/conteudos/graduacao/cursos/tec_seguranca_publica/html/1o_semestre/direito_ordem_publica/referencias.php>, 1985, p. 145)
· Patrolling mounted <http://www.pmmg.mg.gov.br/montado.htm>
The pioneer in the mounted police was given by the Royal Canadian Mounted Police (RCMP), established over a century as an experiment in rural policing and with the philosophical principle of action the presence of the mounted police as a mediator, which paid off and gained international renown, serving as an example and model for many countries.
In urban areas, are employed in offices located: in public places of considerable extent, in residential areas of suburban occupation horizontal in areas inaccessible to vehicles and is not recommended the procedure on foot in support of policing on foot; in public entertainment and special events.
In rural areas is employed in small inland towns, garrison posts of great length and in roads that unite rural properties. (PMSP, 1985, p. 145)
· Overt motor Policing: cars and motorcycles <http://www.3bpm.rn.gov.br/images/pomoto.JPG> <http://www.3bpm.rn.gov.br/images/pomoto.JPG>
It is performed both in urban and in rural areas. Policing motor chances are the same as other officers, with the inherent limitation of mobility on the ground. In rough terrain or in areas of heavy traffic (if the car), is committed to effectiveness and efficiency of this type of policing. The police motorcycle has limitations due to adverse weather conditions. Other than that, has demonstrated excellent potential operational.
· Patrolling with dogs <http://pan2007.globo.com/PAN/Noticias/0,,MUL67741-3853,00.html>
The dog has proved very useful in patrolling both preventive and repressive. Add to that the aid in police investigations (sniffing for drugs and explosives) or operations of search and rescue.
· Policing air <http://www.pmdf.df.gov.br/goa/Polic_Aereo.htm>
This type of policing service enables large areas and can act as support for other types of policing, based on observation and as support for major actions. Agility, speed and coverage of large tracts of land make it an excellent operational tool in policing urban or rural.
It should be noted that the choice of these types of policing depends on the type of action - preventive or repressive - the duration of operation, characteristics of the terrain or the location, extent of area, infrastructure and logistics available, specific objectives of the action, population characteristics (ethnography, symbolic and cultural), level of risk, among others.
It is perceived that the police who have greater visibility on the actions of public order are the Military Police of the States. This is due mainly by the way they are structured to meet the widest variety of demands from the support and assistance to people in a position of vulnerability or risk conflict mediation (quarrels between neighbors, family problems, small disturbances, conflicts arising from social movements), to care for misdemeanors and crimes under the Penal Code and criminal law sparse.
Moreover also the vocation of the military activities of prevention and outreach that although in its infancy, has found growing support from society. These activities are carried out through programs such as Community Policing, Prevention Programs for Drug Use, social programs in communities with higher levels of violence, Security Community Councils, which have allowed a positive synergy between the police and society.
While administrative police, the military police, taken as overt police have the following characteristics:
· They act proactively to ensure the maintenance of public order.
You may choose to act forcefully to maintain order, and practice in cases of criminal behaviors, they are limited to immediate repression, characterized by the attendance of the occurrence and transcription of the Term circumstances, including the state Flagrance and their referral to the formal procedures of the Judicial Police .
• Run activity of a civil nature, but its members have military investiture, called military states.
· Shall exercise the functions of the Military Judicial Police state on its members.
Integrate to the system of territorial defense of the nation as an Auxiliary and Army Reserve.
It is perceived that the universe of military actions of the police is much greater than that of other police. Lazzarini considers the military police as the real enforcement of society. He explained that besides the above functions, the military police may also act forcefully standing up losing ostensibly, in the case of preemptive military police investigation:
A preventive military police investigation, moreover, is the role of the military police, as concluded E. TJSP by its C. 4th Criminal Chamber, to endorse the mission of developing military police in civilian clothes, and culminated in the arrest of drug traffickers. On occasion, it was stressed that the military police, that they always consider the services are educated and trained and that's the behavior that society demands of them. (LAZZARINI <http://www.catolicavirtual.br/conteudos/graduacao/cursos/tec_seguranca_publica/html/1o_semestre/direito_ordem_publica/referencias.php>, 1999, p. 61)
The activities of police intelligence, developed by the agencies and intelligence sectors of the military police, are examples of preventive research, or preliminary investigation, and results in combating violence and crime have been largely positive.
Although the greatest burden to the fit, the legislature has made clear the constitutional importance of participation by all, giving to society and citizens' right to participate in issues and initiatives relating to public safety, being jointly responsible for all Brazilians . In a sense that without the social and community participation, the actions of the defense and promotion of social peace are compromised.
The State in achieving the objectives of preserving public order is by:
(...) Dynamic exercise of police power in the field of public security, as manifested by predominantly overt actions, aiming to prevent and / or Curb for crime and deter it and / or counteract the disturbing events of the order to ensure harmonious and peaceful coexistence within the community.
The preservation of public order on two stages: first, in a situation of normalcy, when it is achieved through preventive actions and attitudes penalties;
SECOND, in abnormal situation, being offended public order, when it should be restored by immediate crackdown, with attitudes of restraint. (Bases Doctrinal Employment of Military Police)
In the absence of alternatives and solutions in the short term, many social problems end up with a final police. For the majority of conflicts arise for other expressions of violence, which ultimately require intervention by law enforcement agencies, so that the police face the challenge of changing their practice and to adapt to this new reality, that is, understanding the origins, size and scope of conflicts. In this regard, the teacher Theodomiro Dias Neto observes:
The effort to identify and understand the conflicts that generate insecurity outside of the classifications contained in the criminal law led to the problem-oriented policing. (...) This is a profound reassessment of the police function, in which the police, in coordination with other state institutions and non-state mobilizes its material and intellectual resources in identifying, analyzing and solving problems, criminal or not, of a territory. Instead of repeatedly responding to incidents, mere symptoms of problems, the police adopt a preventative approach and invests in the search for definitive solutions to the problems themselves. (DIAS NETO <http://www.catolicavirtual.br/conteudos/graduacao/cursos/tec_seguranca_publica/html/1o_semestre/direito_ordem_publica/referencias.php>, 2005, p. 108)
In this class, we study some provisions defining public policy and public security, with the Federal Constitution in March 1988.
Here, we see how to organize and structure of public security in the country, with their respective mandates and institutional responsibilities, albeit in a design that does not rebut the responsibility, as provided in Article 144:
Public safety, the duty of the right and responsibility of all, is exercised to preserve public order and the safety of persons and property (...)
We studied the ostensive police and the various ways in which conducts its business of maintenance and preservation of public order, which highlights the overt factor.
Finally, we reflect on the performance possibilities of police custody, where the military police of the states, to act as police management and conflict prevention in the size of problems whose answer is not simply a criminal matter.
Class 07 - Public Order and Security from the control Social
The size of the public in a democratic state depends on a number of factors linked to social values, political principles, economic, moral, and often also religious. Ends, therefore, is an option of a nation state in pursuit of confrontation and disorder.
In the tuning fork must be reviewing the role of the state and the concepts of public order and public security, which have legal imprecision and vagueness in terms of their scope and dimension.
7.1 Order and Security: New Meanings
Supported by scholars, Lazzarini shows us that:
(...) The notion of public policy is extremely vague and broad, they are not just material maintenance of order in the street but also the maintenance of a certain moral order, which is basic in administrative law, because, as argued The public consists of minimum basic requirements for a social life should be, making it the basis for the safety of goods and people, the health and tranquility, coating, finally, economic aspects (the fight against monopolies, hoarding and scarcity ) and also aesthetic (protection of places and monuments). (LAZZARINI <http://www.catolicavirtual.br/conteudos/graduacao/cursos/tec_seguranca_publica/html/1o_semestre/direito_ordem_publica/referencias.php>, 1999, p. 52)
It appears that, along with the tranquility and public health is public safety, which is one of the ramifications of public policy.
And when addressing public safety, Lazzarini emphasizes that this is
(...) The state anti-tort, resulting from the observance of the principles protected by the criminal codes and common law of misdemeanors, with police actions or preventive typical regressive, moving away, and through their own organizations, from all danger, or any evil that might affect public policy at the expense of life, liberty or property rights of individuals, limiting individual freedoms, establishing that the freedom of every person, even in doing what the law veda does not, can not go beyond the freedom afforded to others, offending her.
In other words, as stated by Diogo de Figueiredo Moreira Neto, public safety is the set of processes, political and legal, to ensure public order, and this is the object of that. (LAZZARINI, 1999, p. 54)
The War College also explained in clear and precise size of the issue of safety:
The state is largely responsible for the safety of everyone, because everyone should and can require the fulfillment of the duties and functions necessary to maintain this condition. One of the most difficult problems that the leaders of a nation face is to get the right balance between the obligations and responsibilities of the state - toward the collective interest and the monopoly of legitimate use of force - and the citizen, holder of a hand, inalienable rights and on the other, under the law of the state of law.
Complementing the size of the Concept of Public Safety, in a dogmatic view more accurate, and is provided by the Basic Guide to Key Elements of ESG:
The enforcement of individual rights and maintaining stability of the institutions and the functioning of public services and the prevention of social harm, characterizing the Public Order, the subject of Public Safety. The public sector includes all activities performed by the State, with emphasis on administrative, police, service, judicial and legislative.
Public Order is the situation of peace and normality which therefore rests with the State, the institutions and members of the Society, according to legal rules established by law. (ESG, 2008, p. 59)
The evolution of the knowledge and information, and social and new rights, it is necessary to resize a conceptual approach to public policy or public security, able to deal with conflicts, which increasingly have a degree of complexity to require government intervention arrangements more effective and less traumatic.
The social control exercised by the political system of the State in order to preserve public order is not necessary to achieve the desired effect of containing the rising violence and crime in the country. The statistical data of official bodies show it.
A social control over-ruled the logic of criminalization, acting on the results produced by the violence does not have the power to reduce it, however, has feedback for it, we see an example in our jails and prisons.
It is worth remembering that care should be taken on the issue of social control exercised by the police, because they are only one step of exclusion processes that culminate in exactly the criminalization, and this is not an issue today, behold, from colonial times, so to Brazil of the Empire, the Republics of Old, New and Contemporary, and aggravated during the military dictatorship, exclusionary social processes are present in our history (VÉRAS, 2006, p. 27).
Thus, the social control exercised by the prevention of criminal offenses can not be cause for justifying the actions of any kind or nature that trigger processes of exclusion, and this must be the great care that the structures of public security shall be in their actions with a an approach that minimizes the crisis of the welfare state, because:
(...) The crisis of the welfare state and the failure to obtain equal access to services caused the reflection of those who respect the difference (or your absolutization) against the abstract principles of citizens rights with virtual. Offered, then, relativistic standards (the State Minimum disclaims responsibility for integrating the different), assuming that the exclusion is the responsibility of the excluded. And the other is seen as no economic utility. In this case, the presence of new production technologies is significant. (...) Be included is to be inside the system, even though unevenly. Being out, being different, not subject to the rules in mixtures, is to be excluded or pushed out. (VÉRAS, 2006, p. 27)
This is the big question and challenge, possible forms of action and social control that does not push people out of the system and into prisons, as history is showing us the historical misunderstanding and injustice in the treatment and addressing disputes which has served more to degrade and punish people than reintegrating them.
Social control in a predominantly catalysed by the control law involves a discriminatory policy response, which reduces to deal with conflicts as if war were and people as enemies, hence the term very common fight against crime, as if they had to face enemies and combat. There are many episodes in Brazil that ended in tragedy for meaning by ideology which has public security and social control, which ended up victimizing both sides of the war dead citizens and police officers on trial and imprisoned. Just to give you some examples: Carandiru Eldorado de Carajas, Farm Lins, Vicar General, and more recently an operation with 11 members of the military in the Morro da Providencia in Rio de Janeiro, which ended with the death of three people, who were delivered as enemies to a group of rival dealers.
On the other worthlessness and lack of relations of difference in our society, is strengthened by a subculture of Manichean struggle of good versus evil, where the enemy does not deserve the treatment the person has no rights as citizens, deserve special treatment .
And what are the effects of this?
Zaffaroni states in this regard:
To the extent that it is a human being as merely dangerous and therefore in need of pure containment, it is withdrawn or denied that it is a person, although some rights (for example, to marry will recognize children etc..) granted him. It is the amount of duties that one is private to cancel their personhood, but the very reason that such deprivation of rights is based, that is, when someone is deprived of any right just because it is considered pure and simply as a dangerous entity. (ZAFFARONI <http://www.catolicavirtual.br/conteudos/graduacao/cursos/tec_seguranca_publica/html/1o_semestre/direito_ordem_publica/referencias.php>, 2007, p. 18)
This conceptual and misrepresentation by ideology or a logic of war does not match the new demands of social control necessary for the full exercise of citizenship rights. On the contrary, leads to the rupture of the democratic state of law, they lose their legitimacy as it becomes the principal violator of human rights and fundamental guarantees of the human person. Just look at the appalling conditions of our prisons and its main clientele: poverty. Indeed, over the historical and social process, the principal violator of fundamental rights and guarantees has been the rule.
To cope with this state of affairs, one of the first steps would be the perception that the criminal is not rigor of redemptive violence, as customarily advocate, especially in crisis situations or in case of any fact that gives rise to crime and cry reaction popular, which are very well exploited and turned into spectacle by the media. The case of the boy João Hélio, dragged and killed on the streets of Rio de Janeiro, and Isabela girl allegedly thrown from a building, illustrate this.
It turns out that the government has forgotten the children of poverty, the genocide of our people who have died in disputes over trade, limiting the concept of an enemy to those who disturb the good living of the members of the social pact. Thus, trivializes the violence and measures of social control they lose their way.
But to give an example more precise on this subject, see the case for the Law of Hideous Crimes, which came just to stem the tide of violence and crime was rampant in large urban centers, which emerged and boosted the context of the cry public was caused due to the death of the young actress Daniela Perez. Under the auspices of a demonstration led by the mother of the actress, there emerges the Heinous Crime Law, which did nothing to reduce violence, particularly homicides, which, however, had a significant increase in the 90's.
This does not mean that the logic of social control, whether to ignore the criminal law - although this was a viable alternative and are already in the current criminological thinking in this direction: critical criminology, minimalism and abolitionism criminal - but that might revert his ways, in the words of Zaffaroni:
The law must always move towards the ideal of the rule of law, when it ceases to do so, the state police progresses. This is a dialectic that never stops, a constant motion, with advances and setbacks. To the extent that the law (doctrine), a developer of legal powers to contain the State Police no longer fulfill that role - that is, to the extent that legitimizes treating certain people as enemies - to waive the rule law and, thus, open spaces for the advancement of punitive power over all citizens and, consequently, to the State Police. In other words, was losing ground in its containment function or permanent dike resistance. (ZAFFARONI, 2007, p. 172)
Therefore, it is understood that any public security policy must be guided by actions of insertion of subjects in society, enabling them access to large institutional dimensions of citizenship such as education, health, leisure, security, or that offer them a least access to them.
7.2 Power of police and Police Power
But, after all, is what powers the police?
The exercise of the rights of individuals and groups requires that the state, through its administrative activity, perform a set of tasks in the sphere of government functions, such as the choice of specific legislation governing the pension system for public servants or administrative themselves, in which the activities have an eminently bureaucratic.
We are interested in here the administrative functions, which are performed by servers who are in these roles and they should have certain powers to execute them. Among these powers highlight the police power.
The expression of Police Power in Brazil comes from a report commissioned by Ruy Barbosa, who uses this term, and Aurelino Leal reproduces in his book Police and Power, which has been in common use in law paternal (Medauar <http: / / www.catolicavirtual.br/conteudos/graduacao/cursos/tec_seguranca_publica/html/1o_semestre/direito_ordem_publica/referencias.php>, 2002, p. 403).
To Odete Medauar:
The word police comes from the Latin Greek politics and political problems associated, as the term policy, the word polis. In ancient times it meant the political order of the state or city. In the Middle Ages was also used in this broad sense, but in the eleventh century derives from the notion of police looks on international relations. Even in the Middle Ages already detects the exercise of police power, as is now under consideration of the communes (municipalities) Europe, by its managers, helping to determine the root source of the modern city and in several municipalities had permits to build alignment, the construction and supervision of professional and consumer protection and animal health. (Medauar, 2002, p. 402)
Matters relating to justice and finance end up leaving the area of police and in the early eighteenth century the police executed a series of internal public activities, except for the justice and finance.
The police issue is to awaken people's interest, and the French De La Mare writes a Traité de la police, published between 1705 and 1710, work which gave great contributions and writing at a time that coincided with the so-called State Police, or is, who performed oppressive intrusion in the lives of individuals (Medauar, 2002, p. 402).
From there the broad sense of police shall give rise to the notion of public administration. The meaning of police is limited, especially under the influence of the French Revolution, the recovery of individual rights and the concepts of rule of law and liberal state. Police came to be seen as a part of the Administration activities designed to maintain order, peace, the public health. (Medauar, 2002, p. 402)
Between us, power implies the ability that someone has to decide and impose its decision to the addressees and with regard to administrative activities of the state, was consolidated in the so called police power, which is inherent to question the authority to decide and impose the decision to citizens, aiming at the greater public interest and common good.
Hely Lopes Meirelles gives us a broad concept of police power:
Police power is the power available to the general government to condition and restrict the use and enjoyment of property, activities and individual rights for the benefit of the community or the state itself.
In less technical language, we can say that the police power is the engine braking available to the public administration to curb abuses of individual rights. By this mechanism, which is part of the entire Board, the state is the activity of individuals claiming to be incompatible, damaging or inconvenient to the welfare, development and national security. (MEIRELLES <http://www.catolicavirtual.br/conteudos/graduacao/cursos/tec_seguranca_publica/html/1o_semestre/direito_ordem_publica/referencias.php>, 2004, p. 129)
Just to recall, the National Tax Code - Law No. 5172 of 25.10.1966 - not define the police power to institute in its article 78:
Article 78. It is able to police the activity of public administration that limiting or disciplining right or liberty interest, governs the performance of an act or failure to fact, because of public interest concerning safety, hygiene, order, morals, the discipline of production and market, the pursuit of economic activities dependent on a license or authorization of the Government, the public peace or respect for property and individual rights and collective.
The police power, to be valid, must have the following characteristics:
· Procedencia of authority with the exercise of administrative activity;
· Generic feature (and not general supremacy supremacy particular);
· Enforcement of property and freedom, without harming the collective interests;
The interests protected by the power of police concern, according to Toshio Mukai,
(...) When we refer to the concept of police power, the interests protected are those that concern the welfare of the community.
Among other collective interests protected, include: security, order, tranquility, hygiene, health, aesthetic, artistic, historical and scenic, natural, morality and popular economy. (...) The purpose of police power, as noted earlier, is to protect the public interest in its broadest sense. (...) Where there is sufficient interest of the community or the state itself, there will correlatively less administrative police power to protect these interests. It is the rule without exception. (MUKAI <http://www.catolicavirtual.br/conteudos/graduacao/cursos/tec_seguranca_publica/html/1o_semestre/direito_ordem_publica/referencias.php>, 1999, p. 92-93)
And to understand the power of the police, initially should distinguish the Administrative Office of the Judicial Police, which in the context of public security activities are carried out respectively by the Civil Police (and Federal) and the Military Police.
Lazzarini asserts that:
Although both one or the other are the externalization of administrative activity typically, the right to administrative police is governed by legal principles of administrative law and applies to goods, while the judicial police is governed by the rules of criminal procedure and focuses on people. (LAZZARINI <http://www.catolicavirtual.br/conteudos/graduacao/cursos/tec_seguranca_publica/html/1o_semestre/direito_ordem_publica/referencias.php>, 1999, p. 242)
The administrative police is gender, which does not reduce the activity of maintaining public order, being exerted by all public agencies that has police powers. Police Maintenance of Public Order, where the military police, are intended to:
(...) Prevent individual or collective acts that threaten the internal security, legal activities, public goods or private health and well-being and lives of citizens, while the situation of security and normality that the State provides or is to ensure to all members of society. (LAZZARINI, 1999, p. 242)
This power of police to act and act in the common good of the community is given boundaries demarcating the passage of discretion to the arbitrary.
That is, the example of individual rights, which often can and should be qualified, so it is with the police power, which can not be arbitrary, omnipotent and without control, under penalty of abuse of power.
The police power is the ability of active police, the police when he acts. Under the police power, police power is used by police to ensure the public welfare endangered (CRETELLA JR <http://www.catolicavirtual.br/conteudos/graduacao/cursos/tec_seguranca_publica/html/ 1o_semestre/direito_ordem_publica/referencias.php>, 1987)
The major limits on police powers are expressed in Article 5 of the Constitution of the Federative Republic of Brazil in 1988, we have already studied, as well as general legislation, especially the rules that take care of administrative law and the activities of maintaining public order.
Social control should result in actions that go beyond the practice of selective and stigmatizing criminal justice system, in which police actions may contribute to the empowerment and protection of the person.
Notwithstanding the powers granted to it by society and the State, the Police should guide their actions in a power which does not descend to the will, ie, both the police power as the power of the police should have the ultimate goal of the well - being of the community and the promotion of peace and social rights of citizenship.
Lesson 08 - Role of Institutional Structure of Public Security in Combating Violence and Crime
In recent years, there has been a worrying increase in the data which are presented by official statistics on violence and crime, not to mention the so-called dark figure or hidden, that are not captured, entered and released.
This fact is well explored, articulated and processed by the media to become an object of consumption: the journalistic sensationalism and spectacle for sale, and the culture of fear as a poster boy, in which the main actors are the children of poverty: small drug trafficking and minor chieftains, slum dwellers and minorities.
We live in a new situation requires new approaches. It's about who they treat in this class.
8.1 Factors Social Transformation and Perception of Violence
The hue of the ideological structures of power based on capitalism and neoliberal ideology are grossly behind this context that occurs in developing countries like Brazil and its states are the bedrock of the countries with major economic means of production and most of world capital, a condition of inferiority, reproducing the logic of exclusion and promoting industry called crime control (CHRISTIE <http://www.catolicavirtual.br/conteudos/graduacao/cursos/tec_seguranca_publica/html/1o_semestre/direito_ordem_publica/referencias . php, 1998).
Just to gauge how much is invested in public safety and private security in Brazil in recent years. Private investments weighed in too, which was invested in security policies in the public domain.
In Brazil, according to the various departments and organizations, are estimated average expenditure of 45 billion reais in spending (government investment) with security, 90 billion reais with private security (investment purposes); despite this investment volume is estimated in Brazil occur about 12% of homicides committed in the world. (BRAUNSTEIN <http://www.catolicavirtual.br/conteudos/graduacao/cursos/tec_seguranca_publica/html/1o_semestre/direito_ordem_publica/referencias.php>, 2006).
The vision and distorted scale hermetic and influenced by the winds of common sense on crime makes inescapable the adverse effects of misguided way in which the state and society are equipping efforts to addressing the real problem. No longer can we forget that it exists and is increasingly present in everyday life in our cities, we are not managing to prevent the increase of official statistics and that the prophecies of the media themselves become increasingly present and true, such as the trivialization of violence, particularly in capitals and major cities, police violence, prison overcrowding, the growth of organized crime, the creation of new social movements (or criminal factions in reading policing), disbelief institutions, the chaos and disorder.
Obviously, can not be attributed to chance or to uncertainties in the progress these social disruption, it is not something out of nowhere. In fact, it was getting worse pari passu historically due to an exclusive pact of Brazilian society, which ends up concealing the true expressions of violence.
Given this, the police have served more as a scapegoat of violence and crime than exercised independently the role offered to him institutionally. One reason for this is perhaps the fact that historically in Brazil, police have been used, and strength of social control, also for political purposes, in which the spreading culture of violence and fear, coupled with discourse of law and order and the mobilization of second apparatus-interest by political leaders and regional authorities, has rendered the area by force and voting co-opted.
The society has been deceived, as confirmed by Cel. Nazareth Cerqueira, we elucidated:
Who are the people responsible for the containment of crime? What are the public or private bodies that? And the institutions? Says O. Wilson, American author, that while most people believe that the police are fully responsible for the crimes that are committed, any program to combat crime will inevitably fail. Those who think that only the police should take action against crime will find reason to criticize it, why not just about crime and do nothing, in part, to support it or cooperate in a preventive program. Those who think the police is not solely responsible for crime prevention will not make it, too, if they are driven and motivated by a plane wave to them all with explicit goals, objective and immediate. (CERQUEIRA <http://www.catolicavirtual.br/conteudos/graduacao/cursos/tec_seguranca_publica/html/1o_semestre/direito_ordem_publica/referencias.php>, 2001, p.40)
This clearly that the issue requires a general mobilization of the whole society. What was the purpose of the Magna Carta of 1988, when it asserts, in Article 144, that public safety is everyone's duty and obligation of the state, without which any policy of public security or public safety policy is doomed to failure, starts, as I said, a new discourse to confront the problem.
This is because the dynamics of exclusion by the criminalization has ricocheted and returned in the form of more violence to society, which creates reflections to reconcile empiricism (practice) with a scientific basis to an improved understanding of the roots and dimensions of the problem.
Jock Young in some approaches:
The fundamental dynamic of exclusion is the result of market forces that exclude large segments of the population of the primary labor market and market values, which helps to generate a climate of individualism. This situation affects both the causes of crime (by relative deprivation and individualism) and reactions to crime (by the precarious economic and ontological insecurity). The exclusions that occur on the surface of this primary process is an attempt to deal with the problem of crime and disorder it engendered. (...) The crime itself is an exception, as are attempts to control them through barriers, incarceration and stigmatization. (YOUNG, 2002, p. 49)
The Constitution of 1988, nicknamed the citizen, broke new ground with a series of fundamental rights and guarantees and social rights, which in a sense, is in line with a policy of social inclusion, rescue and promotion of citizenship rights , although still far from the real world.
In this context, the police must provide the tools so as to reveal in their actions measures to prevent violence and crime. And not only catalyze their actions in combating violence, since the use of force and legal violence (the State) have not been effective means of social control.
For Jorge da Silva:
The new constitutional order, a result not of any award of those in power, but the result of extensive discussion in society, now requires the extension of citizenship, and the impact of the new order with the traditional authoritarian ideology is inevitable. Unequipped democratic mechanisms for living with people and without legal support for the adoption of the old practices, the authorities do not know what to do, and invest in the fallacy of emotional inadequacy of the new constitutional order in order to legitimize lawlessness and abuse authority. (...) (SILVA <http://www.catolicavirtual.br/conteudos/graduacao/cursos/tec_seguranca_publica/html/1o_semestre/direito_ordem_publica/referencias.php>, 2003, p. 215)
The mentality of police violence and crime must be reviewed. This requires that it go out of his social isolation and to see that the overvaluation of its performance in a criminal perspective has only served to perpetuate the logic of exclusion.
Theodomiro Dias Neto, quoting Kenneth Culp Davis, states that:
The police is one of the most important decision-makers (policy-making) of the administrative system. Set policies regarding the maintenance of order and the provision of services that consume much of your time and policies regarding the prosecution that occupy less than half of his time. It is surprising the fact that perhaps no other body - federal, state or local - to take many decisions that impact as live and direct on so many people. (DIAS NETO <http://www.catolicavirtual.br/conteudos/graduacao/cursos/tec_seguranca_publica/html/1o_semestre/direito_ordem_publica/referencias.php>, 2003, p. 19)
8.2 New Approaches
It turns out that the discourse of public security has been appropriated and disseminated in error by many political authorities and the media, based on common sense about crime and violence, arguing that changing symbols, as homicides, drugs, organized crime, crimes transit, puts forward as the only possible response to the hardening law, leaving aside the understanding of the social dimension of the problem.
Brazil has experienced significant influences from the 70's in the military regime in the wake of changes in the current neoliberal inaugurate the era of economic globalization and the weakening of nation states. According to Sérgio Adorno:
These changes promoted in a short time profound deregulation of markets, particularly financial, triggering an ordered sequence of processes: changes to the traditional national borders, to encourage the flow ever more malleable capital, opening up space for illegal activities that made the ownership of capital autonomous, free circulation of institutional constraints on tax havens, able to fund operations such as trafficking in drugs, people and human organs, weapons smuggling, fiscal and financial fraud, piracy of goods and services, counterfeit drugs , diffusion of gambling, among many other sports.
In Brazil, this scenario is aggravated by the crisis of public security, which has been going on for at least three decades. Crime has increased and become more violent, organized crime has spread through society reaching economic activities beyond the traditional property crimes, increasing homicide rates, particularly among adolescents and young adults, and disrupting livelihoods and social standards inter between sociability and social classes. Nevertheless, the public safety policies continue to be formulated and implemented second conventional models, aged, unable to monitor the quality of social and institutional changes underway within society. The crime has modernized, but the application of law and order enclosed persisted in the old model police to chase criminals or known to rely on networks of informants. And all this despite the huge investment in public safety, or promoted by federal or state governments in the expansion and training of human resources, as well as the modernization of the police. (Adorno; SALLA <http://www.catolicavirtual.br/conteudos/graduacao/cursos/tec_seguranca_publica/html/1o_semestre/direito_ordem_publica/referencias.php>, 2007, p. 10)
These changes require the police to re-evaluate its potential in a democratic pluralistic society and unequal, involved and enable civil society participation in decision making and choices aimed at a new conception of confrontation and political mediation of conflicts based on consensus, and that as Dias Neto, be able to:
(...) Enable pacts tolerance and peaceful coexistence between different ideas and freedom and well-being in the same territorial space. When these tensions are channeled and political parties can discover and negotiate their claims, acknowledging the legitimacy of the claims opponent, it creates the conditions for governance, socially founded, not merely state and law enforcement, conflict. (DIAS NETO <http://www.catolicavirtual.br/conteudos/graduacao/cursos/tec_seguranca_publica/html/1o_semestre/direito_ordem_publica/referencias.php>, 2005, p. 126)
Why this bias, the police have to incorporate into your routine a change of subcultures are still guided to an extent that greatly favors the prosecution's and trends in its core practices to strengthen the rule of Criminal Terror in the hermeneutics of suspected underlying to any policy action.
A paradigm shift in the way of police action runs through the incorporation of new values and awareness about its role in our society, the perception remains distorted by misunderstanding that the government has police security.
Challenges for the breaking of old paradigms and the resumption or start of new paradigms in terms of public safety require bold responses and increasingly creative in finding an ethics officer who inspired the rights of citizenship, strengthen social ties and establish procedures interactive, in which the otherness of the other values the respect of dialogue, participation and life in its many manifestations and dimensions.
Understanding the magnitude of the problems that lead to violence and crime to the police allow a broader conception of its function, an awakening of otherness to each other, which is no longer treated as an enemy to be recognized as a citizen. Constitutional norms is in line with this perspective, which allow less traumatic ways of resolving conflicts, especially by preventing them.
Theodomiro Dias Neto presents a proposal called the New Prevention, characterized by the diversification of social and governmental responses to the problems of crime and insecurity, saying that there is a social actor who does not have some responsibility for safety management in urban areas. According to the author:
The prospect is a new balance between space and pen space policy, including punitive response and preventative response when confronting exclusion, delinquency and the feeling of insecurity. Equilibrium in which legal intervention is added to many interventions in education, urban planning, health, economic or banking regulation and not the opposite situation, in which public policies are manipulated for reasons of penal control. (DIAS NETO, 2005, p. 144)
Given these arguments, one realizes that one of the paradigm shifts in public safety rests with the historically punitive policies adopted, and the police end up guiding their actions for criminal efficientism the illusion that it provides social security and certainty. The true efficiency of the police should be based on respect and promotion of human rights, fulfilling its historic role in defending democracy and protecting the freedoms and fundamental rights.
In this last class, we saw that the role of institutional structures of public safety before the new constitutional order to address violence and crime requires new paradigms in security.
From all the foregoing it is perceived that the social and community participation, with actions which focus on a preventive action, the roots of the problems that culminate in expressions of violence, under surveillance and control activities and more social otherness and dialogical practices in conflict resolution, will culminate in a new paradigm in public safety, (re) approaching society and national police, allowing tolerance, cooperation and solidarity discourse and renew the old practices in public safety.
You just completed studies on the Law of Public Order.
We hope that all that has been studied and discussed to serve their professional practice and as a citizen, so that you can contribute to a more just and happy.
ADORNO, Sérgio; SALLA Fernando. Organized crime in prisons and the attacks of the PCC. In: Advanced studies. vol. 21, n. 61, 2007. pp.7-29.
ANDRADE, Vera Regina Pereira de. Penal System maximum x minimum citizenship: Codes of violence in the era of globalization. Porto Alegre: Livraria Advocate Press, 2003.
BRAZIL. Constitution of the Federative Republic of Brazil, 1988.
BASTOS, Celso Ribeiro. Course of Constitutional Law. São Paulo: Saraiva, 1994.
BONAVIDES, Paul. Course of Constitutional Law. São Paulo: Malheiros, 2005.
BRAUNSTEIN, Hélio R. Violence and crime: the reasons and the logic of the institutions of pseudo care. University of Sao Paulo - Brazil, 2006. Available at: <<http://scielo.bvs-psi.org.br/scielo.php?pid=S1870-350X2006000200007&script=sci_arttext>> Acesso em: 13 ago. 2008.
CADEMARTORI, Luiz Henrique Urquhart. Administrative Law. Porto Alegre: Synthesis, 1999.
CARVALHO, Paulo de Calgaro. Notions of Constitutional Law, Criminal and Administrative. Palhoça: UnisulVirtual, 2006.
Cerqueira, Carlos Magno Nazareth. The future of an illusion: the dream of a new police force. Rio de Janeiro: F. Bastos, 2001.
CHRISTIE, Nils. The industry's control of the offense - the way of gulags western style. São Paulo: Forense, 1998.
CRETELLA JR, Joseph Treaty of administrative law. Vol I Rio de Janeiro: Forense, 1987.
CRUZ, Paulo Márcio. Fundamentals of Constitutional Law. Curitiba: Juruá, 2002.
DIAS NETO, Theodomiro. Urban security: the new model of prevention. São Paulo: Revista dos Tribunals / FGV, 2005.
DIAS NETO, Theodomiro. Community policing and control over the police: the North American experience. 2. ed. Rio de Janeiro: Lumen Juris, 2003.
DEZEN JUNIOR, Gabriel. Constitutional Law. Brasília: Editora Vestcon, 1998.
Engels, Friedrich. The origin of the family, private property and state. Great Works Collection of Universal Thought. São Paulo: Editora Escala, s / d.
Gilissen, John. Historical Introduction to the law. Lisbon: Fundação Calouste Gulbenkian, 2001.
Gusmao, Paulo Dourado. Introduction to the study of law. 29. ed. Rio de Janeiro: Forense, 2001.
LYRA FILHO, Roberto. What is right? São Paulo: Brasiliense, 1984.
GOYARD-Fabre, Simone. The foundations of legal order. São Paulo: Martins Fontes, 2002.
LAZZARINI, Álvaro. Studies of Administrative Law. 2. ed. São Paulo: Revista dos Tribunals, 1999.
Medauar, Odete. Modern Administrative Law. 6. ed. São Paulo: Editora Revista dos Tribunals, 2002.
Meirelles, Hely Lopes. Direito Administrativo Brasileiro. São Paulo: Malheiros, 2004.
MELLO, Celso Antônio Bandeira de. Administrative Law Course. 15. ed. São Paulo: Malheiros, 2007.
MIRABETE, Julius Fabrini. Manual of Criminal Law. Volume 3. São Paulo: Atlas, 2005.
MUKAI, Toshio. Administrative Law systematized. São Paulo: Saraiva, 1999.
Montesquieu, Charles de Secondat, Baron de La Brède et de. From the spirit of the laws. São Paulo: Brazil Issues and Publications Company, 1960.
PERSON Robertônio. Course of Modern Administrative Law. Brasília: Editora Consulex, 2000.
MILITARY POLICE STATE OF SAO PAULO (PMSP). Basic Guide Policing Ostensive. São Paulo: Section Graphic CSM / PMSP, 1985.
Rouland, Norbert. The confines of law. São Paulo: Martins Fontes, 2003.
SILVA, Jorge da. Control of crime and public safety in the new constitutional order. Rio de Janeiro: Forense, 2003.
SILVA, José Afonso da. Course of positive constitutional law. 29. ed. São Paulo: Malheiros, 2007.
ZAFFARONI, Eugenio Raúl. The enemy in the law. 2nd ed. Rio de Janeiro: Revan, 2007.
WOLKMER, Antônio Carlos (ed.) Fundamentals of legal history. Belo Horizonte: Del Rey, 1996.
Comprehensive protection - implies the possibility of the accused or litigant monitor the whole process and be able to participate in all their acts to present a defense.
Scapegoat - The so-called scapegoat represents the symbolic violence of primitive peoples and cultures in a process of sacralization and rite of sacrifice was seen as necessary for external mediation and conduit of collective violence, enabling the group's peace, social peace .
Contradictory - is the right of the accused or litigant to oppose the allegations made against you and may make counter-arguments to be heard, present evidence and express opinions on the proceedings.
Non-bailable crime - crime that does not fit guarantee.
Bailable crime - is that not prescribe, or the law of the state to bring criminal action does not disappear with time.