BUSINESS AND HUMAN RIGHTS / Šturma, Mozetic (eds)

should be overturned by an adequate guarantee to the contrary and the previously outlined principles. Decisions with a cognitive character, took ex officio, or that still seek the real truth pretend to be immune to intersubjective control. For this reason, these decisions are incompatible with the paradigm of a democratic state. The Federal Supreme Court of Brazil (MS 24.268/04, Rep. Judge Gilmar Mendes) shows seasonal signs of incorporating this democratization process based on the jurisprudence of the Bundesverfassungsgericht, which represents the claim to legal protection in accordance with the guarantees enshrined in art. 5, LV, of the FC. This article contain the following rights: the right to information (Recht auf Information), which requires the judicial body to inform the other party of the acts practiced in the process and of the elements contained therein; the right to expression (Recht auf Äusserung), which ensures that the defendant has the opportunity to express him/herself orally or in writing with respect to the factual and legal elements of the process; and the right to see their arguments considered (Recht auf Berücksichtigung), which requires the judge to have the capacity, apprehension and relief of mind (Aufnahmefähigkeit und Aufnahmebereitschaft) to contemplate the arguments given by the defendant. The same ruling from the Brazilian Supreme Court incorporates the doctrine of Dürig/Assmann, which maintains that the duty to devote one’s attention to the rights of the parties is not just an obligation to know (Kenntnisnahmeplicht) but also an obligation to seriously and carefully consider the arguments presented in the court (Erwägungsplicht). 4.1.5 Principle five: the fundamental right to a constitutionally appropriate response This principle has a relationship of strict dependency to the fundamental duty to justify decisions and to the principles or sub-principles coined by the constitutionalist tradition that address the integrating effect , which is linked to the principle of unity in the Constitution, the practical compliance or harmonization , the maximum effectiveness and the interpretation according to the Constitution . As a founding principle of the jurisdiction-democracy relationships, the obligation to justify decisions, which is not a foundation for an apodictic character , aims to preserve the normative force of the Constitution and the deontological character of its principles. Therefore, this principle represents a shield against delegitimizing interpretations of content that supports the normative domain of constitutional texts. This principle exists to replace any solipsistic pretense for specific historical conditions by always adhering to the principles of tradition, consistency and integrity, which may be capable of addressing the problems of hermeneutic interpretations that attempt to overcome the subject-object scheme. There is a fundamental obligation to comply with the Constitution. Moreover, there is a fundamental right to an appropriate response to the Constitution (i.e., a constitutionally appropriate response or even a hermeneutically right response with regard to the Constitution). Before performing any further analysis, one should always scrutinize the compatibility of the judicial norm with the Constitution and the existence of any possible contradictions. One should always ask whether, in light of the principles and the constitutional precepts, the norm is applicable to the case. Moreover, one must determine in what sense the norm points to a precedent (Vor-verständnis), which is a prerequisite to understanding the phenomenon. To interpret, one must understand

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