ADPF | Arguição de descumprimento de preceito fundamental

Summary

This video provides a detailed explanation of **ADPF (Arguição de Descumprimento de Preceito Fundamental)**, a unique legal mechanism in Brazilian constitutional law. It highlights when and how ADPF is used, distinguishing between its two main types: **autônoma** (autonomous) and **incidental**. The video covers its applicability to fundamental constitutional principles, the role of the STF, and the specific procedures for filing. Key topics include eligibility, the action's extraordinary nature, and the binding effects of ADPF decisions. Overall, the video serves as a comprehensive guide to understanding ADPF and its role in the Brazilian legal system.

Takeaways

• 😀 The video discusses the Arguição de Descumprimento de Preceito Fundamental (ADPF), a constitutional control action in Brazil.
• 😀 ADPF is regulated by the Federal Constitution (Article 102) and the law 9882/99.
• 😀 ADPF is an extraordinary and exceptional legal remedy used only in cases where other constitutional actions, like ADI and ADC, are not applicable.
• 😀 Preceitos fundamentais (fundamental precepts) are basic prescriptions that give meaning to the constitutional regime, often related to autonomy, rights, and guarantees.
• 😀 The Supreme Federal Court (STF) has defined fundamental precepts through previous rulings, including rights to health and the environment as fundamental rights.
• 😀 ADPF can be used for issues before or after the 1988 Constitution, even for laws already revoked or whose effects have ended.
• 😀 The action has a subsidiary nature, meaning it can be proposed only when other actions are not available.
• 😀 ADPF can be either autonomous or incidental, depending on whether the constitutional issue is a general, abstract question or part of a specific case.
• 😀 An autonomous ADPF is a direct petition to the STF, while an incidental ADPF arises from a controversy in lower courts, aiming to resolve constitutional issues quickly.
• 😀 A measure of caution can be requested in ADPF cases, allowing for urgent decisions that may suspend the effects of lower court rulings.
• 😀 Decisions in ADPF cases can have retroactive effects and be binding on other branches of government and the judiciary, unless there is a decision to modulate the effects.

Q & A

What is the purpose of the Arguição de Descumprimento de Preceito Fundamental (ADPF)?

The ADPF is an extraordinary legal action used in exceptional cases when it is not possible to use other forms of constitutional control. It addresses violations of fundamental principles, as outlined in Brazil's Constitution.

Where is the ADPF mentioned in the Constitution of Brazil?

The ADPF is mentioned in Article 102, paragraph 1 of the Brazilian Federal Constitution and is also regulated by Law 9882 of 1999.

What constitutes a 'preceito fundamental' in the context of ADPF?

A 'preceito fundamental' refers to basic constitutional principles that define the constitutional regime, particularly those related to the autonomy of states and the fundamental rights and guarantees within Articles 1-4 of the Constitution.

How did the STF (Brazilian Federal Supreme Court) define the scope of 'preceito fundamental'?

The STF defined 'preceito fundamental' as rights and guarantees outlined in Articles 5 to 17 of the Constitution, including principles like the right to health and the environment, and even the clauses that cannot be altered (cláusulas pétreas).

When is the ADPF considered a subsidiary action?

The ADPF is considered subsidiary because it can only be used when other constitutional actions, such as ADI (Ação Direta de Inconstitucionalidade) or ADC (Ação Declaratória de Constitucionalidade), are not applicable or sufficient.

What does it mean when ADPF is 'autônoma'?

When the ADPF is 'autônoma,' it is filed directly with the STF to address an abstract constitutional issue, rather than a specific case. The goal is to prevent or repair violations of fundamental principles.

What is the difference between 'ADPF autônoma' and 'ADPF incidental'?

The main difference is that 'ADPF autônoma' addresses abstract constitutional issues in general, while 'ADPF incidental' is based on a constitutional dispute within a specific case being processed at lower courts.

What are the requirements for filing an 'ADPF incidental'?

For an 'ADPF incidental,' the petitioner must prove that a significant constitutional controversy exists concerning a fundamental precept, and it must be filed by legitimate parties under Article 103 of the Constitution.

Can the ADPF be filed by any individual or party?

No, only the parties listed in Article 103 of the Constitution, such as the Attorney General (PGR) or other authorized bodies, can file an ADPF. Individuals cannot directly file this action unless they are authorized by law.

What happens if a 'measures of caution' are needed in ADPF?

In urgent cases, the STF can grant precautionary measures, which may include the suspension of certain judicial decisions. These measures can be issued even during the judicial recess, with confirmation from the full court.