By: Leonardo Neri

Starting the topic, we must read the Federal Constitution, mainly article 37, paragraph 6, of the Magna Carta, which clearly states:

“The direct and indirect public administration of any of the Powers of the Union, the States, the Federal District and the Municipalities shall comply with the principles of legality, impartiality, morality, publicity and efficiency, and also with the following: (…) § 6º Legal entities under public law and those under private law providing public services shall be liable for damages that their agents, in that capacity, cause to third parties, ensuring the right of recourse against the person responsible in cases of fraud or negligence.”

Unfortunately, the world was hit by a pandemic in 2019, with devastating consequences for the global economy in 2020/2021, including civilizational setbacks resulting from the fear that the new disease caused the world.

In Brazil, as usual, the problem was aggravated by the lack of planning and adequate action by our government. Initially, measures were proposed by the Federal Government, with Law No. 13,979/2020 being enacted, which defines isolation and quarantine protocols, as well as rules for movement throughout the national territory and, also, the restrictive operation of public and private services, providing guidelines to States and Municipalities.

In this sense, states and municipalities also issued their respective regulations, establishing operating hours for non-essential and essential services.

Demonstrating the lack of national planning and heightening national fear, the municipal and state measures were the subject of a Direct Action of Unconstitutionality (ADI 6,341 DF), in order to analyze the legitimacy of the restrictive measures imposed by the States, Federal District and Municipalities and, according to Minister Marco Aurélio, Rapporteur of the case, the measure issued by the Federal Government does not eliminate the concurrent competence of States, Municipalities and the Federal District, under the terms of articles 23, item II, 198, item I, and 200, item II, of the Constitution.

This dispute, aimed at garnering political spoils, one with a speech defending a dignified life and the other with a speech of preserving life, demonstrates the total lack of public planning and merely electoral speeches, harking back to ancient times, when King Solomon was supposed to decide on the fate of a child fought over by two mothers, concluding that the child should be divided in two so that both mothers would be satisfied. Now, half a child does not solve the problem, just as lockdown does not solve the preservation of a life, because, as stated in the Universal Declaration of Human Rights of 1948, every person has the right to an adequate standard of living, that is, it is not enough to have a life; a dignified life is also sought.

Recall the Constitutional Charter copied at the beginning of the text, if it is legitimate for the State to promote measures to mitigate freedom, with the creation of the lockdown, it is lawful for the individual, given the damage caused by the measure, to seek compensation against the State, since the possibility of civil liability of the State is objective and does not depend on proof of guilt.

If the Federal Supreme Court has Binding Summary 38, which provides for the Municipality's competence to set the opening hours of commercial establishments and, even if federal, state and municipal rules on the operation of private establishments coexist, it is essential that the damages caused by the federative entities be compensated.

Article 136 of the Federal Constitution, which deals with the State of Public Calamity, clarifies that whenever the Public Authority uses goods and services in situations of calamity, it must compensate for the damages and costs incurred.

Therefore, the construction that we intend to defend is that the child is not divided, but allows the sanitary mitigation measures to be duly supported by economic measures that enable a dignified life for everyone.