The unconstitutional application of the 5th article of EC no. 109/21 regarding funds for the rights of children and adolescents

Abstract

The article deals with the unconstitutionality of the application of the rule present in the 5^th article of EC 109/21 regarding Funds for the Rights of Children and Adolescents. The need for full and prioritary protection of children and adolescents is a fundamental right provided for in art. 227 of the Federal Constitution. Therefore, it is a problem that this rule would be disrespected with the application of art. 5 of EC 109/21 in relation to the FIA. The hypothesis is that art. 5 of EC 109/21 would be unconstitutional and its compatibility with the constitutional order would depend on a declaration of unconstitutionality without reduction of text, to exclude from its scope the funds destined to the protection of children and adolescents. To test the hypothesis, the first topic analyzes the functioning mechanics of the rule of art. 5 of EC 109/21, to demonstrate its potential impact in relation to the FIA. The following topic aims is to demonstrate that the FIA ​​is an instrument for the realization of the principle of integral and priority protection, a fundamental right provided for in art. 227 of the CF, and that the application of art. 5 of EC 109/21 represents a direct offense to the constitutional guarantee stablished in art. 60, § 4, IV, of CF/88. In the final step, it proposes that the compatibility of art. 5 of EC 109/21 with the current constitutional order would depend on a declaration of unconstitutionality without reduction of text, which excludes from its field of application funds for the protection of children and adolescents. The work is the product of qualitative, exploratory-descriptive research, which adopts a post-positivist theoretical paradigm, based on bibliographic analysis of Brazilian legal texts and doctrinal comments by national authors.