Access to justice in social rights issues relating to the street population: housing, food and health - the brazilian and the portuguese models

Author(s)

Tiago Fernando Guedes de Carvalho

• Document type: Master's Dissertation
• Press: Franca. 2021-07-26.
• Institution: Universidade Estadual Paulista (Unesp). Faculdade de Ciências Humanas e Sociais. Franca
• Defense date: 2021-05-28
• Advisor: Soraya Regina Gasparetto Lunardi

Abstract

The homeless population suffers from social stigmatization and suffers from the negligence of society and the State. The legal order established by the Federal Constitution of 1988 presents a list of Social Rights that should represent positive benefits from the State. However, it is observed that such rights are lacking in practical effectiveness, affecting the entire population, with greater impact on populations in conditions of social vulnerability, as is the case of the group in question. This social exclusion has been deepening in recent years and, to the same extent, the number of people living on the streets has increased. The growth of this population is occurring in a vertiginous way, not only in the Brazilian context but also in the context of European countries. At the same time that this growth occurs, the conflicting relationships that are exteriorized in the form of violence and neglect suffered by people living on the streets are also increasing. This is what can be observed in the measures taken both by individuals, who through the so-called "hostile architecture" seek to curb the permanence and use of certain urban spaces and devices by people living on the streets. The invisibility that reaches this population is selective since for the violent and oppressive actions this population is seen as targets, but for the protective and right-securing sphere, they are not considered. Thus, the judiciary is sought to ensure social rights, whether through collective or individual actions. At this point, another problem is verified, which is: the difficulty of access to justice in its various forms, including that embodied in access to the judiciary and its subsequent stages until the final provision of jurisdiction. The present work is necessary because it seeks to evaluate the content of court decisions issued by the judiciary of São Paulo in lawsuits in which homeless people are parties in the claim for social rights to housing, health, and food. The analysis took into account, through empirical research, with the use of quantitative and qualitative methods, not only the decision provisions but also the merit of the requests made and the conformity with the realization of social rights constitutionally provided. Therefore, the study is part of the analysis of judicialization and the elaboration of adequate public policies. Initially, it was verified through the exploration of the court's case database that most of the cases involving homeless people are criminal, which makes it latent that the access to justice by this population occurs mainly by the punitive sphere of the State. Regarding the profile traced, it was verified that the right to housing, in general, is claimed by people with vulnerable profiles, however, even facing cases involving homeless people and the insufficiency of public policies, the Court of Justice of São Paulo shows the tendency to consider this right as merely programmatic. Concerning cases involving the right to health, it is verified that there is a national jurisprudence strongly marked by the individual and collective actions of this right. However, when framed about homeless people, there is a predominance of judicial cases seeking compulsory internment. What can demonstrate the inadequate way in which the issue of the homeless population and the right to health is subsumed to a public security policy. Seeking to make the work more concatenated with other national contexts, and taking into account the similarities between the Brazilian Constitution of 1988 and the Portuguese Constitution of 1976, especially concerning social rights, it was analyzed in the Portuguese context how the dynamics of access to justice occurs and how the social rights of homeless people are ensured in that country. This analysis led to the observation of the public policy developed by the Municipality of Lisbon for the protection of homeless people. (AU)

• FAPESP's process: 18/06401-0 - How the judiciary of São Paulo State decides social rights issues related to homeless people: rights to housing, food and health
• Grantee: Tiago Fernando Guedes de Carvalho
• Support Opportunities: Scholarships in Brazil - Master