Nine ministers voted for the Union and States to present proposals to promote improvements in the prison system
O STF (Federal Supreme Court) formed a majority for the government to present, within 6 months, a national plan to overcome the “unconstitutional state of affairs” in the Brazilian prison system.
By the end of this Tuesday’s session (Oct 3), 9 ministers voted in favor of creating state plans and one national plan to promote improvements in Brazilian prisons. The trial will resume on Wednesday (Oct 4, 2023) with the vote of Minister Gilmar Mendes.
In 2015, the STF recognized that there were massive human rights violations in the Brazilian penitentiary system. The decision to recognize “unconstitutional state of affairs” It was from retired minister Marco Aurélio and in preliminary (provisional) form, being validated by the Court.
O “unconstitutional state of affairs” occurs when there is a situation of widespread violations of fundamental rights; when these violations are caused by the incapacity of public authorities; and when the Judiciary understands that it needs to intervene. The concept emerged in the Constitutional Court of Colombia, equivalent to the Brazilian Federal Supreme Court.
The measure allowed the Court to determine, even before it was written into law, that the Judiciary hold custody hearings before making arrests in the act. It also prohibited the contingency of the Penitentiary Fund.
The judgment on the merits of the action that deals with abuses in the prison system is the 1st judged by the new president of the STF, Minister Roberto Barroso, in the Court’s plenary.
The case was discussed on other occasions by former president Rosa Weber, but did not go to trial due to the analysis of criminal actions regarding January 8th.
Barroso was the 1st to vote due to the request for review (more time for analysis) made in the action in 2021. He followed the understanding of the rapporteur, minister Marco Aurélio de Mello, retired in 2021, but with some additions.
In his vote, Marco Aurélio proposed the elaboration, by the federal government, of a national plan to overcome the “unconstitutional state of affairs” of the penitentiary system. He cites some goals mentioned by Psol in the initial petition, such as reducing overcrowding in prisons and reducing the number of pre-trial detainees.
Here are the measures determined by the rapporteur:
- that judges and courts provide, in cases of determining or maintaining provisional detention, the express reason why they do not apply alternative precautionary measures to deprivation of liberty;
- that judges and courts hold, within 90 days, custody hearings, enabling the prisoner to appear before the judicial authority within a maximum period of 24 hours, counting from the moment of arrest;
- that judges and courts consider, with reason, the dramatic situation of the Brazilian penitentiary system when granting criminal precautions, when applying the sentence and during the criminal execution process;
- that judges establish, when possible, alternative sentences to prison, given the circumstance that imprisonment is systematically served under more severe conditions than those permitted by the normative framework;
- that the Union releases the accumulated balance of the National Penitentiary Fund, to be used according to the purpose for which it was created, refraining from making new contingencies;
- that the Federal Government prepares within 3 months the national plan to overcome the unconstitutional state of affairs and implements it within 3 years;
- that States and the Federal District formulate within 3 months, counting from the publication of the plan formalized by the Union, their own plans, in harmony with the national plan, aiming to overcome, within 2 years, the unconstitutional state of affairs.
Barroso differed from Marco Aurélio in relation to the requests that deal with the participation of the CNJ (National Council of Justice) in the preparation and execution of the plans that must be presented by the Union. Furthermore, he voted to determine that the plan be approved by the STF.
The President of the Court also defended that the period for the government to present a national plan to improve prison conditions in the country be extended to 6 months.
The president’s understanding was followed by Cristiano Zanin, Kassio Nunes Marques, Alexandre de Moraes, Edson Fachin, Luiz Fux, Dias Toffoli and Cármen Lúcia. Ministers must still define the thesis and the provisions that will be established on the topic.
RAPPORTEUR’S VOTE
Marco Aurélio voted for the partial validity of the action presented by Psol, establishing a deadline of 3 months for the presentation of the national plan by the Executive Branch.
According to the retired minister, it is the STF’s responsibility to deal with the issue due to the inertia of public agents on the subject.
“The discredit of prisoners means that political agents do not demand resources to be invested in a prison system capable of offering conditions of dignified existence. This rejection has the direct consequence of political blockages, which translate into barriers to the effectiveness of the Constitution and international treaties on human rights incorporated into the legal system”he said.
“Judicial intervention appears legitimate in this pattern of state omission, given the situation of widespread violation of fundamental rights. Once the paralysis of political powers is verified, idealized arguments of the democratic principle make little practical sense”.
Here’s the complete of the rapporteur’s vote (PDF – 191 kB).
VOTE VIEW
According to Barroso, the case represents an interest for the Court due to the reported violations of fundamental rights and also due to the public interest in improving the prison system.
He states that most of the prisoners committed small crimes that represent low criminality and that the sentences could be replaced by other measures. The magistrate also argues that the joint arrest of these people with high-profile criminals could lead to “Prohibited” of a 1st degree prisoner committing more serious crimes.
“A large part of this population will not have access to study, work or training, therefore, they remain in absolute idleness. These people will not even overcome the values that led them to delinquency. There is a rational criminalization of poverty that worsens in prison”says an excerpt from the vote.
When talking about the unsanitary conditions of Brazilian prisons, Barroso argued that the State fails to provide basic services and their absence could cause the growth of criminal factions in the country.
“The main criminal organizations operating in Brazil were formed and ordered from within prisons. It is estimated that the largest of them was already present in 90% of prisons in SP in 2009 and is now throughout the national territory. Those goods that the State does not provide are provided by criminal organizations. Adherence to them can be an essential issue for survival in prison“, he said.
“That [a ação] It does not only concern prisoners, which is enough. There is immense social interest in solving the problem of the prison system, because the prison system feeds back on the problem of public security in Brazil.”
ACTION
The process (ADPF 347) was presented by Psol in 2015 and deals with the recognition of “unconstitutional state of affairs” of the Brazilian penitentiary system and the adoption of various measures in the treatment of prisons in the country. Here’s the complete (PDF – 684 kB).
The trial began in 2021, but was suspended following a request for review (more time for analysis) from Barroso himself, who returned the files for trial in April this year.
In the process, the Psol requires the elaboration of a national plan that allows the “overcoming serious violations of the fundamental rights of prisoners throughout the country”. The action mentions:
- reduction of prison overcrowding;
- containment and reversal of the “hyperincarceration”;
- reduction in the number of pre-trial detainees;
- adequacy of facilities and accommodation in prison establishments to current regulatory parameters, regarding aspects such as minimum space, maximum capacity, health and hygiene, comfort and safety conditions;
- effective separation of detainees according to criteria such as sex, age, procedural status and nature of the crime;
- guarantee of material assistance, security, adequate food, access to justice, education, comprehensive medical care and dignified and paid work for prisoners;
- hiring and training staff for prison institutions;
- elimination of torture, ill-treatment and the application of penalties without due legal process in prisons;
- adoption of measures aimed at providing adequate treatment for vulnerable groups in prisons, such as women and the LGBT population.
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