BARBOSA ,J. R. M.; http://lattes.cnpq.br/1843411021771529; BARBOSA, José Rikelmy Moreira .
Resumo:
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.