A intervenção processual da Defensoria Pública na qualidade de custos vulnerabilis : perspectivas e limitações para transformação do Direito

Abstract

The present research investigates the Public Defender's Office intervention in Brazilian civil procedure as custos vulnerabilis. It analyzes to what extent the legitimacy of the Public Defender's Office to autonomously intervene as a “guardian” of the vulnerable could contribute to transforming civil litigation into a more dialogic and inclusive environment. As a research hypothesis, it is accepted that custos vulnerabilis intervention is based on the Constitution of the Republic, which gives the Public Defender's Office the role of human rights promoter. The research has social relevance, since Brazil populations is markedly poor and socially unequal, so that the collective interests of historically vulnerable groups are in a state of great litigation, with emphasis on land disputes and recognition of traditional populations, fertile ground to discuss a collective action of the Public Defender's Office on behalf of vulnerable. The general objective of this research is to analyze custos vulnerabilis intervention, exploring its possibilities and limitations as a mechanism of transformation of litigation. The specific objectives are to study the influence exerted by the liberal-individualist paradigm on access to justice idea; to analyze the development of Brazilian legal aid; to examine the constitutionalization of Public Defender's Office; to analyze the origin, characteristics and dogmatic foundations of custos vulnerabilis intervention; to analyze the role of Public Defender's Office in multitudinous possessory actions; to distinguish custos vulnerabilis, custos legis and amicus curiae; to study the institute in the light of the institution structural limitations by proportionality perspective, analyzing it as an instrument for transforming law through a cultural bias. It uses dialectical approach method; monographic and structuralist procedure methods; and sociological interpretation method. It concludes that the Federal Constitution of 1988 represents an important milestone in sense of abandoning the individualistic profile that marked the idea of access to justice and the originally conceived legal aid, a paradigm that also influenced the very genesis of the Public Defender's Office. The custos vulnerabilis intervention itself appears as one among other mechanisms designed with the objective of consolidating a new institutional solidarist bias. Despite the variety of grounds invoked by the literature, it can be said that the role of Public Defender's Office as a "guardian" of vulnerable is related to the idea of "amplification of the hearsay guarantee", thus involving a participatory and democratic dimension. A proportionality analysis in a broad sense suggests a serious reflection about convenience of assigning a new role to Public Defender's Office, in view of the "institutional incompleteness" framework, embodied in the scarce material and human resources that it currently has. On the other hand, by cultural bias, it concludes that the institutionalization of custos vulnerabilis would represent an important procedural metamorphosis capable of contributing to the consolidation of a less individualistic and more inclusive civil litigation.