A incidência do princípio da precaução no Superior Tribunal de Justiça e Supremo Tribunal Federal e a judicialização da produção de plantas geneticamente modificadas no Brasil

Abstract

The Biosafety Law (Law 11.105 of 2005) conferred on the National Technical Commission of Biosafety (CTNBio) the competence to judge and commercially approve the OGMs. One of the guidelines that guide the biosecurity policy and the action of the administrative body is the precautionary principle. These parameters are the verification of the application of the precaution, (i) information, transparency and public participation in the decision, (ii) risk assessment or advantages/disadvantages, (iii) duty of continuity of research or (iv) provision of time for review of decisions taken. It is formulated, at this point, as guiding questions of the research: is the precautionary principle expressly used in the demands and judicial responses to the claims of challenge of commercial approvals of genetically modified plants (GMP) within the Scope of the STF and STJ? Furthermore, do the theoretical and procedural foundations used in the judges by the State-Judge under the STF and the STJ meet the informing parameters of the "precautionary principle"? The reflections are based on the dialectical materialist method. The research confirmed the hypothesis partially: The precautionary principle is not used to challenge CTNBio approvals, because the issue is not even judicialized within the scope of the STJ and STF. However, in the jurisprudence of the STJ on the precautionary principle there are strong theoretical inconsistencies, and systematic procedural practices are absent that can identify a consistent and operative precautionary principle. It is concluded that, in the judicial system in matters of biosafety, it is not evident the commitment to conceptual rigor in the application of the precautionary principle and to the effectiveness in reviewing/supervising CTNBio decisions, so that this phenomenon would constitute a symptomatic case of a crisis of jurisdiction. [resumo fornecido pelo autor]