O direito fundamental à prévia e justa indenização em dinheiro e o acesso à justiça: mediação e arbitragem como garantias de celeridade e justo preço nos processos de desapropriação por utilidade pública a partir da Lei 13.867/19

Abstract

Despite being a fundamental right to prior and fair compensation in cash provided for in item XXIV, article 5 of the Federal Constitution, the daily reality shows that expropriation for public utility incurs an a posteriori payment of compensation for the expropriated, embodied in the judicial deposit of an insufficient amount to be considered fair and a supplement through payment under the precatory regime – and that, after long and exhausting years. In order to do justice and receive the adequate compensation to which he is entitled, the expropriated person inevitably undergoes a long, lengthy and excruciating course of expropriation action, in a scenario in which the Public Treasury, known if not the largest one of the largest litigants in the Judiciary, acts in such a way as to hinder as much as possible a fair and favorable judicial decision. In this regard, the present work aims to analyze the realization of the fundamental right of access to justice and the respective possibility of realization of the fundamental right to fair, prior and cash compensation of the expropriated through mediation and arbitration in the context of expropriation for utility. public. Through the deductive method, it is initially intended to discuss fundamental rights in the context of the Constitutional and Democratic State of Law, in order to reach the possibility of adopting mediation and arbitration as consequences of a fair, prior and cash compensation to the expropriated. , thus seeking to identify the mechanisms to guarantee speed and fair price in the processes of expropriation for public utility through mediation.