Aplicação do princípio da proporcionalidade nos processos administrativos disciplinares.

Abstract

The principles constitutional all possess determinative performance in the efetivagao of the legal system, a time that act as starting point for the interpretation of the constitutional ruleses and infraconstitutional. The principle of the proportionality, for being a principle that can be used in ample direction, possesss soul relation with the others, amongst which it can be detached the principle of the isonomy, the principle of the razoabilidade and the principle of the legality. The entailing of the principle of the proportionality for saw of the basic rights justifies the agreement of that any manifestation of the public power must relieve obedience to it, therefore if it moderates for the necessity that the legal operator has to analyze the case concrete in cotejo with the applicable norm, and, when using it, the effective reality in determined period and for determined reality will have to adjust it it. For way of this principle it is verified if the taken factors of restriction in consideration are adjusted to the excellent accomplishment of colidentes or competing rights e, in reason of this reason that the principle of the proportionality gains the great prestige. After all, what if it longs for is the guarantee to the individuals of basic rights that cannot be menosprezados to any titulo. The application of the principle of the proportionality rests, therefore, in the necessity to construct the Right for the use of the positivada norm of coherent, harmonizing, that always possible form, the some antagonistic interests that coadjuvam one same legal relationship. When a collision of principles occurs is necessary to verify which of them ahead possesss greater weight of the concrete circumstances, implying rules whose establishment depends on a balance. The proportionality duty, in this way, must be resultant of a coesa result of the main character of the norms. Thus, the principle of the proportionality represents the accurate measure where the State must act, in its specific functions. In this way, this does not have to act with surplus, in the same way that it cannot act in insufficient way in the accomplishment of its objectives. Beyond the force of limitation of the intervention of the State the proportionality principle also it is related to the substantial protection of the individual. Breaking to the principle of the proportionality will always occur that the administrator, having two legitimate values to sopesar, to prioritize one from the sacrifice exaggerated of the other. The proportionality implies a axiologica and finalistica adequacy for the public agent of power-having of hierarquizar principles and values in way adjusted in the relations of administration and the control of them, over all in relation to the Administrative proceeding To discipline. It determines that a way must be adjusted, necessary and it does not have to be without relation of proportionality relatively to the end instituted for the norm. Therefore, the proportionality duty must have its application by means of rational and intersubjetivamente controlable criteria. Thus being, the present study it represents some subsidies for reflections on the principle of the proportionality and its application when of the process of infractions to discipline.