Colisão e restrição de direitos fundamentais em tempos de crise: o direito à saúde e o direito de liberdade de ir e vir

Abstract

The present work entitled COLLISION AND RESTRICTION OF FUNDAMENTAL RIGHTS IN TIMES OF CRISIS aims to demonstrate the importance of the collision between fundamental rights unavailable to a dignified and harmonious coexistence of human beings in times of abnormality, of the coronavirus pandemic, as well as its legal consequences principles or rights in resolving that conflict. The main objective of this study is to understand and interpret the collision between the fundamental rights to health and freedom to come and go, in the state of emergency of public health, as well as to analyze the intervention or restriction measures adopted from the perspective of the weighting judgment. , by applying the principle of proportionality. Through the weighting or weighing technique, the essential elements of the specific case are examined, which are the restrictive measure adopted and the consequences that its execution or non-execution has for the principles or rights involved. This technique makes it possible to verify the concrete importance of a principle, which means determining the relative concrete weight of a fundamental right in relation to the other that operates in the opposite direction, deciding on the precedence of the right of greater weight to the detriment of the one that suffers the restriction with adopted measure. Through this work, we sought to ascertain the presence of proportionality in the decisions and measures adopted to resolve the conflict in times of crisis, examining subprinciples or partial proportionality maxims, in order to determine whether the restrictive measure adopted satisfies or not to the criteria of adequacy, necessity and proportionality in the strict sense. Finally, we sought to investigate whether the importance of satisfying the preceding right (Health) justifies the degree of non-satisfaction or intensity of intervention on the right to Freedom to Come and Go, thus assessing the reach of the maximum possible satisfaction of the right to health, that is, of the maximum proportionality in the strict sense (the weighting itself).