Direito fundamental à liberdade de reunião e controle de constitucionalidade de leis penais e de sua interpretação e aplicação: contribuição para o direito de reunião como sub-ramo autônomo do direito administrativo
This is a case study preceded by a systematic explanation of its theoretical framework. The case is fictitious but strongly inspired by a judgement of the Federal Constitutional Court in Germany, in which the court assessed the constitutionality of a police measure and its judicial confirmation in t...
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| Format: | Article |
| Language: | Portuguese |
| Published: |
2017
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| Subjects: | |
| Online Access: | https://dialnet.unirioja.es/servlet/oaiart?codigo=6179696 |
| Source: | Espaço Jurídico: Journal of Law, ISSN 2179-7943, Vol. 18, Nº. 2 (maio/ago. 2017), 2017, pags. 433-490 |
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| Summary: |
This is a case study preceded by a systematic explanation of its theoretical framework. The
case is fictitious but strongly inspired by a judgement of the Federal Constitutional Court in Germany,
in which the court assessed the constitutionality of a police measure and its judicial confirmation in the
context of a counter-protest to a meeting that had occurred in a public space. For the case study’s resolution,
it was developed a juridical-constitutional opinion centred on the juridical situation exposed on the
case, with the aim to evaluate the chances of a positive outcome of an eventual judicial action against the
state measures (police measure and its juridical confirmation), considering the hypothesis of violation of
the fundamental right to assembly. As in any other democracy, in Brazil under the Federal Constitution
(FC) of 1988, the political-ideological contours of the right to freedom of assembly are as notorious as
they are counterproductive - at least when one thinks of the indispensability of a specific constitutional
legal technique. There is a deficit in the Brazilian literature that the present essay seeks to remedy in the
light of comparative law considering the German case. To reconcile the democratic principle with the
freedom of assembly, without a systematic approach, one assumes its instrumental character in relation
to the former and does not meet the hermeneutical challenges implicit in the complex content of article
5, XVI, of the Brazilian Federal Constitution, in which freedom of assembly was enshrined. From a systematic
analysis of the constitutional text, this study presents legal-dogmatic definitions that are methodologically
disciplined, and analyzes the content of the aforementioned constitutional article, classifying
its parts as either subjective conditions for the exercise of freedom of assembly or as implicit constitutional
limits, which can be concretely drawn by the ordinary legislator, provided that they observe certain
argumentative burdens. Thus, such a regulatory legislation could not, prima facie, be considered unconstitutional.
Also, its eventual interpretation and application -as the interpretation of any other normative
provision of administrative or criminal law in general - must be done in the light of freedom of assembly
in such a way that the specific bounds between all three state functions are respected. |
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