A intervenção judicial em políticas públicas relacionadas ao direito da criança e do adolescente

Abstract

This study focuses on the phenomenon of judiciary control of public policies related to the rights of children and adolescents, through a search on the legislative, theoretical and jurisprudential vision of the theme. It seeks to examine, from these three perspectives, the contemporary view of fundamental rights and the need for those responsible for protecting the rights of children and adolescents to adopt a position on the issue based on substantialism theory, as a means of rejecting the extreme procedural posture that leads to ineffective rights. It also links the achievement of Fundamental Rights to the consolidation of the Social and Democratic State, particularly from a perspective of the guarantee of fundamental rights (based on Luigi Ferrajoli s theory). It analyzes the legal instruments available to the State for elaborating its budget in the most democratic way possible, which includes participatory democracy. It emphasises the legal hermeneutics and the interpretation of the constitutional principles that support children and adolescents, and the way in which the adoption of a substantialist/guarantist stance enables them to be made effective, particularly in view of the alleged budget constraints of the Government. In this context, it presents the institutions responsible for implementing the Fundamental Rights related to children and adolescents, focusing primarily on the role of the Public Prosecution Service1 and its legal and constitutional attributions in this area, and how the influence of substantialist/guarantist theory can eliminate the figure of the Promotor de gabinete , building a pro-active institution that is committed to its social function and the effectiveness of the constitutional principles.