Estado de Coisas inconstitucional : Considerações acerca do sistema penitenciário brasileiro à luz da ADPF 347/DF do Supremo Tribunal Federal.

Abstract

The 1988 Constitution has a prominent position in the consecration of fundamental rights to the entire population. However, in practice, there is a serious crisis in the realization of these rights, especially for those inserted in a context of vulnerability. The individuals taken to prison in Brazil are historically exposed to several violations of fundamental rights, there is a scenario of objectification of these subjects that clearly pays attention to what is enshrined in the country's normative instruments. In this scenario of imbalance between the social guarantee established in the Political Charter and the absence of public policies for the realization of fundamental rights, especially in the Brazilian prison system, the Institute of the Unconstitutional State of Things (ECI) manifests itself as a tool to overcome this situation of political lethargy. The ECI is a decision-making technique developed by the Colombian Constitutional Court (CCC) and used in Brazil for the first time in the judgment of ADPF 347/DF. Through this phenomenon, the Judiciary assumes the leading role to overcome situations of massive and repeated violations of fundamental rights. Meanwhile, the research brings as general objective to analyze the crisis experienced by the prison system in Brazil, seeking, from the judgment of ADPF 347-DF, understand whether the declaration of unconstitutional state of things is a legitimate instrument to face the problem. As for the specific objectives, they are: to identify the fundamental rights enshrined in Brazilian legislation that are repeatedly violated in the prison system; to conceptualize the ECI and highlight the avant-garde bases of this phenomenon, based on Colombian jurisprudential construction; finally, to understand how the ECI was structured in Brazil, when ADPF 347/DF was judged, presenting criticisms and objections sustained by national doctrine on the subject. To this end, the hypothetical-deductive approach is used, since the study starts from principles, laws, general rules and more comprehensive doctrines, to subsequently focus on the theme exposed, especially in the conjectures that are analyzed and submitted to the process of falsification, aiming at its refutation. The technique of bibliographic and documentary research and comparative research is highlighted, since a parallel will be drawn between the Colombian roots and the jurisprudential construction of the STF about the ECI. Therefore, considering the main boiling points on the subject and the treatment offered by Brazilian doctrine, we aim to understand whether the declaration of the ECI by the STF is a legitimate instrument to overcome the serious situation of violation of rights experienced by the Brazilian prison system.