Análise jurídico-social da efetividade da Lei 10.741/2003 em favor do idoso encarcerado.

Abstract

The difficulty that Brazilian elderly people face in living with dignity is not current. Disorders that originate from the same problem are experienced, that is, the apparent loss of usefulness of the elderly. This thought contributes to state and family abandonment, as many elderly people become a nuisance for the family and a burden for the State. In this vein, the 1988 Constitution conferred on the family, society and the State the duty, together, to support them, an attribution that not everyone follows strictly. Among the norms edited for the protection of the elderly, Law nº 10.741/2003 stands out, the Statute of the Elderly Person, which emphasizes fundamental rights in its repertoire, in particular the dignity of the human person. However, there are numerous situations where the already established guaranteeing and protectionist norms do not reach the effectiveness necessary for the fullness of their effectiveness, making the normative text useless for the social group to which it was intended. In relation to the imprisoned elderly, the state entity becomes the only protector with access and means to ensure due protection, since that one, by its ability to enforce and punish, would, in theory, better apply the norm, with the need to verify whether the special legislation is effective in the prison system. This time, it is questioned, given the complexity of prison mechanics, to what extent can the State make the protection of the incarcerated elderly more effective and transform the enclosure into an environment where there is a guaranteeing perspective? The objective of the present work is to analyze, from a legal perspective, the effectiveness of the rights enshrined in the Statute of the Elderly Person and related legislation in relation to incarcerated elderly people and how to obtain effectiveness in promoting the rights inherent to this small portion of the population. To achieve these objectives, exploratory research will be used for bibliographical survey, as a method of approaching the hypotheticaldeductive, as for the procedural methods, the historical-evolutionary and the comparative study will be used, in addition to the application of legal hermeneutics and as a research technique, the theoretical, through the bibliographic survey, where articles published in specialized magazines, doctrines, data extracted from official websites, legislation and related jurisprudence will be used. In addition, the study in question is entirely enlightening, since its intent is to detect elements that point to or favor finding the most feasible solution to the problem in focus. Thus, it appears that the norms necessary for the protection of individuals under analysis have already been established. However, effective compliance with existing laws is imperative, in addition to the creation of public policies and structural investments in the prison system, which will provide elderly people in confinement with a differentiated environment, capable of realizing the existing rights.