O jus postulandi e o direito fundamental de acesso à justiça

Abstract

This research deals with the establishment of “jus postulandi”, which seeks to evaluate its convenience and its compatibility with the fundamental pledge of complete and free of charge juridical assistance determined at the 5th article, LXXIV, from Brazilian Constitution of 1988, evaluated through the access of justice prism, it seeks to appraise if the establishment propitiates an effective access to justice to those who may use it. In order to analyze the proposed problem, the hypothetic-deductive method is used and through bibliographical review it approaches, on the first chapter, the establishment of “jus postulandi”, its concept, its terminology, its historical roots, and its discipline according to Brazilian and foreign legislations. On the second chapter, the work seeks to structure the access to the justice in three distinct moments, which are: the conception of Mauro Cappelletti and Bryant Garth, the rethink of the theme having in mind the national and foreign actual doctrine, and finally, the sedimentation of these concepts on the Brazilian juridical ordainment, as fundamental right and directory of The Legal Democratic State. Having this in mind, on the third chapter, this present work seeks to outreach of the establishment of jus postulandi due to constitutional warranty of the proper legal process effective access to justice in a preferred scenario, the importance of the law professionals in this service, the lack of consideration of the decision pronounced by “Federal” Supreme Court on the “Direct Action of Unconstitutionality” # 1127-8, at last, other practical elements which make unenviable the permanence of this establishment on the Brazilian juridical ordainment. On the fourth chapter, the work deals with Public Services, their constitutional purpose and their workability, as well as juridical assistance provided by non state agencies. Based on the analyze studied, the conclusion achieved is that jus postulandi does not coadunate with the directories determined on the Brazilian constitution of 1988, since on its modern conception, it only attends the directories formal aspects of justice access. The State must provide the necessary means to those in need, the protection of their rights, and above all in regard to sponsorship of causes before Judiciary by means of properly certified professionals. In this regard, jus postulandi must only remain in its residual form and be applied on situations where citizens, for personal reasons or for total impossibility of obtaining judicial assistance sponsored by the Government, decide to appear in Court personally unaccompanied of a properly certified professionals.