The unconstitutional state of affairs of the Brazilian penitential system as a dialogical and structural judicial activism in the protection of fundamental rights of prisoners

Abstract

Today, the thousands of prisoners in the Brazilian penitentiary system experience, on a daily basis, massive and widespread violations of diverse rights in the Federal Constitution of 1988. The situation is extremely serious and is widely known both by the population and the government. Nevertheless, the inertia of the executive and legislative powers in resolving the serious failings that lead to the violation of the fundamental rights of prisoners is prolonged every day. In this context, ADPF 347 was filed by PSOL, with the scope of discussing the intense violations that subject prisoners. In the judgment of the precautionary measure of the action, the STF acknowledged that in the Brazilian prison system there is an Unconstitutional State of Affairs. Such recognition divided opinions among legal professors, because it could mean the beginning of the fight against the ineffectiveness of the inmate's fundamental rights or the beginning of a judicial supremacy. In the face of such a scenario, the present research is guided by the eagerness to analyze the possibility of using the Unconstitutional State of Affairs to face the Brazilian penitentiary crisis, and as conditions that give rise to its legitimate use, avoiding as much as possible the risks to democracy, such as extreme judicial activism. For this purpose, bibliographic research was carried out on Brazilian and Colombian doctrines. Using the dialectical methodology, the arguments against the application of the decision technique and the favorable arguments were compared. The research has revealed the possibility of using the Unconstitutional State of Affairs as a protection of the fundamental rights of prisoners, reaching the conclusion that such use, to be legitimate, must necessarily have a dialogical character, that is, in spite of the Unconstitutional State of Affairs perfectly perfectly designed for the beginning of the confrontation of the Brazilian prison crisis, it will only be legitimate if it constitutes a dialogical structural judicial activism.