Privilégios processuais da fazenda pública: uma afronta ao princípio constitucional da isonomia

Abstract

This paper aims to analyze in details the procedural privileges of The Treasury considering the constitutional principle of equality. Moving away from the much hyped supremacy of the public interest over the private interest, we show that the Government, when a party in civil procedures, intends to defend secondary interests, typical of an individual, which prevents differential treatment. Thus, procedural matters, the principle of equality of arms requires that the parties must have the same opportunities, no gains or losses. The procedural privileges granted to The Treasury, a product of our culture and that were introduced into our legal system during totalitarian periods, and subsequently by government´s special acts of emergency, called medidas provisórias, without complying to the requirement of urgency, no longer meet the goal of annihilating the differences between the Government and the individuals. Today, therefore, given the current organizational structure of the State, we believe that those procedural privileges of The Treasury are unconstitutional, according to the Progressive Unconstitutionality Theory by the Germany Supreme Court.