A Responsabilidade civil do estado em casos de mortes por covid- 19 no âmbito do sistema pricional brasileiro.

Abstract

This paper investigates the civil liability of the State due to deaths by Covid-19 occurring in the prison environment. To do so, the deductive method was used, as well as bibliographical research, through the analysis of books, legal articles, national and international documents, legislation and case law. The objective is to analyze whether the State can be held responsible for the omission or deficient service rendered inside the penitentiaries in the combat of the Coronavirus. To provide solidity and conviction about the object investigated, the main decisions of the national courts in the period before and after the pandemic were examined. Initially, a historical contextualization of the evolution of the institute of civil liability through all its phases was made, from the theories of irresponsibility to the publicist theories - which are manifested today - in the meantime, the doctrine of objective liability prevails, as provided in art. 37 § 6 of the CRFB/88. The existence of the duty of guardianship that the State has over the prisoner from his custody was also approached. Then, the prison system was addressed, exposing its precarious scenario of overcrowding, in addition to public policies aimed at this area and its degree of effectiveness. Regarding the theme of the pandemic, a comparative description was carried out between the scenario outside the prison and the one internally experienced, in this approach, it was found that the degree of deprivation of rights in the prison environment reached subhuman conditions, remaining evident the social abandonment experienced by the incarcerated. In order to finalize the research, the decisions of the courts related to the theme were analyzed, through which it could be concluded that there is a clear dichotomy between the absence of positive benefits in the prison environment and the universalization of the proposal of indemnity actions by the detainees, which would lead the State to assume a position of universal insurer that is not its own. Thus, it was inferred that it is possible to hold the State responsible for omissive acts that caused the deaths of detainees during the pandemic, provided that a case-by-case analysis is performed, in which the causal link between the omission and the damage is proven. Keywords: Civil Liability. Covid-19. Penitentiary System.