A INTERVENÇÃO JUDICIAL COMO TÉCNICA EXECUTIVA NOS PROCESSOS ESTRUTURAIS: LIMITES E POSSIBILIDADES DE SUA APLICAÇÃO EM RELAÇÃO AOS ENTES PÚBLICOS

Abstract

Although structural litigation has been widely studied due to its growing importance, few studies have investigated the enforcement activity of structural decisions. In this field of study, the role of judicial intervention has been largely overlooked and this paper outlines some of the key principles behind the intervention as an enforcement technique on structural litigation. The literature about the issue points out the importance of this enforcement measure as a reliable technique to accomplish the goal of improvement of judicial effectivity, because of its flexibility and possibility of monitoring the defendants activities. Indeed, we argue that the monitoring character of some types of interventions reduces the informational asymmetry between the parties, and then allows consensual decisions about the enforcement measures, which is important in public interest litigation. On the other hand, we discuss the limits of the intervention, giving a particular attention to the separation of powers and the measures applicable to public entities. Thus, the advantages arising from intervention in the monitoring modality are highlighted, as it implies a less drastic intervention, especially when considering legal entities of public law, in order to avoid the possible removal of public officials. Similarly, this latter type of intervention is presented as advantageous for establishing other executive measures by the judge, as it allows for a better understanding of the entity's functioning by the adjudicator. We conclude that judicial intervention can be implemented under Brazilian law, and it is not a threat to the separation of powers, because it is softer than other measures already used in Brazilian class action law, and it seeks to guarantee basic rights.  The deductive method was employed as a methodological framework, based on doctrinal research, which used a literature review on the subject mainly composed of scientific articles, dissertations, and academic theses.