The writ of injunction serves to request the regulation of a right already guaranteed when the lack of a regulatory norm makes the practice of this right impossible.
It can be used by anyone who holds a right that needs a regulatory standard to access it.
The writ of injunction is part of the list of constitutional guarantees (or constitutional remedies), that is, it was determined in the Federal Constitution as a guarantee of right.
What is the injunction order for?
The writ of injunction serves to request the regulation of a right harmed by the lack of regulation - which can be total or partial.
The absence is total when no rule that regulates the law has been published. It is partial when the rule already exists, but it is not yet sufficient to guarantee the exercise of the right.
The writ of injunction can be used for some situations described in the law. The action can be used to deal with:
- rights of citizenship;
- rights of nationality;
- questions of sovereignty.
The law on the writ of injunction (law No. 13.300/2016) explains its function and application:
Article 2 A writ of injunction shall be granted whenever the total or partial lack of a regulatory rule makes the exercise of constitutional rights and freedoms and the prerogatives inherent to nationality, sovereignty and citizenship.
Why is it necessary to ask for the regulation of a right that already exists?
In some cases, the Constitution provides rights that are generically determined, that is, from more comprehensive way - the law is established, but details are not decided on its application. For a citizen to enjoy the right, these rules must exist.
For example: a certain right is provided for in the Constitution, but details are lacking about how it works and how to access this right (there is a gap in the Law).
To solve this problem, it is necessary to publish a regulatory standard that establishes details such as: necessary requirements, estimated time to apply for the right, how to apply, among others.
How does the writ of injunction work?
This action, contrary to what happens with most cases, must be mandatory filed in the Federal Supreme Court (STF) and must be against the body responsible for the publication of the regulation.
Who are entitled to an injunction order?
They may be part of the writ of injunction:
- Author (may file the action): natural or legal persons who are holders of the right.
- Defendants: the bodies that should publish the regulatory standard.
Writ of Injunction Requirements
In order to file the lawsuit, it is necessary to observe whether these requirements are present:
- the object of the action must be a right already guaranteed by the Constitution;
- a regulatory norm on this right has not been published.
What can happen at the end of the process?
If the action is judged positively, the judge must determine a deadline for the responsible body to take the necessary steps to create and publish the rule that regulates the law.
If the determination is not complied with, the judge must determine acts that guarantee the right of the plaintiff, even without the publication of the rule.
Individual and collective writ of injunction
An injunction order can be filed in two ways: individual and collective.
the writ of injunction individual it can be used by the person who feels harmed by the lack of regulation of the law. The individual who is unable to exercise a right because there is no law that regulates it can propose the action.
For this, it is important that the protected right is listed in the Writ of Injunction Law and has already been determined in the Federal Constitution or in other legislation.
the warrant collective it can be proposed in some situations, when there is a connection with the protection of the rights of a group. In this situation, they can be proposed by:
- Public Defender's Office: in situations where the protected right refers to citizens served by the Public Defender's Office or for the protection of human rights;
- Public Ministry: in cases where rights are related to the protection of social interests, democracy or the legal order;
- Unions: when the right is related to unionized persons belonging to a category;
- Political Parties: for the protection of the rights of the members of the political party that judges the warrant.
Also know the writ of mandamus.