A (necessária) convencionalização da execução penal no Brasil: um estudo à luz do Sistema Interamericano

Abstract

Despite the extensive regulation within the Brazilian legal framework, a series of occurrences still highlight structural disarray within the national prison system, which records numerous routine violations of human rights protected by the Inter-American Human Rights System (IAHRS). That said, it is necessary to discuss the realization of the rights of people deprived of liberty. This leads to the guiding question of this research: "Have Brazilian courts, in their decisions, facilitated the realization of human rights for incarcerated individuals, particularly those stemming from the Inter-American System?" As a methodological approach, this research focuses on the decisions of the following courts: the Supreme Federal Court (STF), the Superior Court of Justice (STJ), the Federal Regional Court of the 5th Region (TRF5), and the Court of Justice of Rio Grande do Norte (TJRN). The goal is to present considerations about the situation of individuals incarcerated in Brazil, observing the current state of the art. Next, the norms that protect the human rights of this group are listed, beginning with the United Nations System, the Inter-American System, and domestic legislation. Finally, the application of human rights standards for people in prison by the Brazilian judiciary is analyzed. To do this, a bibliographic and jurisprudential research model was adopted, through a qualitative-quantitative analysis of the content extracted from the decisions issued by the aforementioned courts, using their respective official websites for consultation. As a temporal framework, the jurisprudence from January 11, 2022, was used, which refers to the publication of Recommendation No. 123 by the National Justice Council (CNJ). This recommendation aims to warn Brazilian Judiciary bodies about the observance of international human rights treaties and conventions, as well as the use of jurisprudence from the Inter-American Court of Human Rights. Also used as the basis for this study is CNJ Resolution No. 364, the National Judicial Pact for Human Rights, which outlined a set of measures to promote human rights within the Judiciary. The importance of this research lies in the need to discuss the realization of the rights of people deprived of liberty, and it is also linked to the United Nations Sustainable Development Goal (SDG) No. 16. As a result, it was found that, despite some small advances in the promotion and realization of human rights by the Judiciary, the Brazilian State only partially fulfills its internationally agreed obligations regarding the subject of this study. This is evident when considering the Unconventional, Unconstitutional, and Illegal State of Affairs of the Brazilian prison system and the recurrent violations that harm human dignity, such as lack of infrastructure and medical assistance, prison overcrowding, absence of public policies, as well as the presence of torture and arbitrary actions as routine practices in prisons. Therefore, there is a persistent state omission regarding the essential rights of this vulnerable population, and it is necessary for Brazilian Courts to implement Inter-American standards.