O controle da representatividade/representação do Ministério Público nas ações coletivas lato sensu: possível parâmetro em sua atuação extrajudicial para oitiva de pessoas e comunidades representadas

Abstract

Starting from the standard of access to justice by Cappelletti (1977), this study evaluates the solution of collegiation of public and private institutions for the defense of metaindividual rights. It calls on the political science of Pitkin (1967) to reconcile the representation and correlated democratic necessity of participation of those represented in the decisions adopted by the representative, to show the solution by the demand of its responsive action, moving from an "individual guarantee " to a "social or collective guarantee," which is why it is important in regard to the question of the adequacy of the representativity of collective collegiality, as interest in acting or as a procedural requirement whose consequence, in the case of inadequacy, is not a result the extinction of the action without adjudication of merit, but rather by the opening of the process in a dialogical way. And, accepting control of the adequacy of the representativeness of the Prosecution, the new typology of transindividual rights concepts by Vitorelli (2016 a; 2016 b) is used, in which the profile of the diffusion of the harmful element must condition the form of control of adequacy of the role of collective legitimation and its demands to the mostly direct participation of the represented, as a solution for cases of eventual inadequacy of representativity by measures of democratization of the process. Finally, the present work proposes that pre and extrajudicial action be taken as a possible parameter of the adequacy of the representativeness of the Public Prosecutor, especially the diligence undertaken in the public civil inquiry that addresses the nearly direct participation of the population affected, depending on the level of diffusion of the harmful agent, which motivated the empirical research of data on the performance of the Prosecution of the state of Minas Gerais in public civil and collective actions, having the objective of fulfilling obligations, assessing demands for structural actions, which most commonly refer to as public policies or actuations of private institutions that interfere in a massified form in society. And that the challenge of promoting the participation of the society, directly or representatively in councils created by law for the construction and supervision of public policies, can and should be embraced as a mission of the Prosecution.