Tempo ao tempo: a teoria da proporcionalidade de Robert Alexy a análise da tensão entre princípio da livre iniciativa e as medidas sanitárias emitidas em decorrência da pandemia de Covid-19

Abstract

The present work is an analysis of the collision between two Fundamental Rights during the period of COVID-19 Pandemic that we went through, being these: Right to Free Initiative and Right to Health. With the focus on reporting the situation faced by the country and the world in the face of the COVID-19 pandemic scenario, it was sought to reiterate the need for effective sanitary measures at the time of the strong spread of the virus, although, on the other hand, there are legal provisions that establish the citizen's Right to Free Trade Initiative, since much has been questioned about measures taken by heads of government. In order to solve and bring an answer to the routine questioning, the Proportionality Theory was used, this being the method developed by Robert Alexy for the collision between Fundamental Rights, and, therefore, the Adequacy, Necessity and Proportionality criteria were evaluated in strict sense of the measures adopted to control the situation. In the end, it is concluded that although guaranteed by the Legal System, the Free Initiative should not prevail over Brazilian Health, which should continue to be guaranteed, but in a controlled manner so that there is an effective control of COVID-19 through sanitary measures.