ROCHA, E. C.; ROCHA, Emanuela Cardoso.
Abstract:
Despite the fundamental rights figure as fulcrum to the Democratic State of Law and occupy a spotlight seat in the Magna Carta, don’t enjoy of absolute character, considering that, against some concrete cases, need to be mitigated in favor of another law equally fundamental. Occurs that, not all the hypotheses of collision of fundamental rights can be provided and remedied in advance by the legislator. Thus, fits to the Judiciary, in the exercise of its adjudicative activity, analyze the concrete case and beacon the conflicting values. The present study points the right of liberty press in the face of the intimacy right as members of conflicts poles in analysis, both supported by the national legal system and high to the status of fundamental rights, essentials to the dignity of the human being. Thus, it’s questioned which is the best criterion to be adopted in order to bring a solution less harmful to this collision, using as parameter the basic principles from the Democratic State of Law. This present work points to utilization of the weighing principle, generally known as the proportionally principle, as the best mechanism to be used in the weighing of the colliding values, considering the need of avoiding the complete non-observance of any of these rights looking up, thus, its optimization. Confronted with this, the research aims to analyze the liberty press in the face of the intimacy right under the legal and social guidance, therefore as demonstrate the relevance and the extension of such rights.In order of reach these objectives, the present paper uses as method of approach, the deductive, and, as research technique, the bibliographic or documentary, trough the analysis of the following judges: Civil Appeal 2012.031130-2 do TJ-SC; REsp 984.803 e ADF 130, as the analysis of the PL 393-2011 and legislation. As the procedure method was used the historic and evolutionary and the comparative study. All things considered, it follows that the fundamental rights have principled spread lacking, like this, of differentiated treatment when are in collision. Despite its nature and characteristics, against an collision situation, one should be mitigated in favor of another from the analysis of legal interests and protected values by each one. Therefore, it’s indispensable the study of constitutional hermeneutics involved and the principles of constitutional State, so that against of such collision can be applied the proportionally principle as solution.
