THE CONFLICT OF THE THEORIES OF THE EXISTENTIAL MINIMUM AND THE RESERVATION OF THE POSSIBLE IN FACE OF STATE INERTIA IN THE APPLICATION OF DECREE No. 7,053 OF DECEMBER 23, 2009

Abstract

The conflict between the theories of the existential minimum and the reservation of what is possible in the face of the State's inertia in the application of Decree No. 7,053 of December 23, 2009 is a topic that presents the State's possible challenges in materializing the aforementioned decree, in relation to fundamental rights, implementation of public policies, existential minimum and reservation of the impossible, where their non-observance and massive violation of human rights resulted in the STF's preliminary decision in ADPF No. 976 that recognizes the human rights of the homeless population. The research problem was based on the following question: Is the State obliged to comply with the existential minimum regarding assistance to homeless people in light of decree No. 7,053/2009? To answer this question, the general objective focused on identifying the State's obligation to comply with the existential minimum in relation to homeless people, considering the limits of Decree no. 7,053/2009. The following items were addressed as specific objectives: analyzing Decree No. 7,053 of 2009 and its Objectives, classifying who are homeless people and the constitutional principles that protect them according to Decree No. 7,053/2009, present the public policies for homeless people, classify the discretionary power of the public administration regarding the application of Decree no. 7,053/2009, apply the existential minimum and reserve what is possible regarding the limits of the State in complying with the existential minimum for the application of the national policy for the homeless population, and evaluate the judiciary's view regarding the mandatory application of Decree no. . 7,053/2009 in the analysis of ADPF n. 976/DF. Together, exploratory research of a qualitative nature was used, using bibliographical, documentary and jurisprudential research. In this way, the research allowed us to understand that although public policies exist and are protected by law, the State fails to implement them. Thus, basic fundamental rights expressly provided for in the Constitution, guaranteeing dignified survival, are flagrantly disrespected, especially the principle of human dignity.