The Unconstitutional State of Affairs of the Brazilian penitentiary system: an analysis through the prism of the new frontiers of litigation towards the enforcement of human and fundamental rights

Resumen

Abstract: This work analyzed the unconstitutional state of affairs of the Brazilian penitentiary system, declared by the Federal Supreme Court in the Claim of Breach of Fundamental Precept (Arguição de Descumprimento de Preceito Fundamental, or simply, “ADPF”) 347, considering the structural process as a new frontier of litigation that aims to contribute to the enforcement of human and fundamental rights. The research was based on bibliographic review and documental analysis of national and foreign judicial decisions, international treaties and specialized doctrine. The specific objectives sought, were to examine the origin and application of the concept of Unconstitutional State of Affairs (USoA); to identify the rights of prisoners in international treaties internalized by Brazil, verifying the importance of conventionality control; and finally, to evaluate the effectiveness of the structural process as an instrument for enforcing human and fundamental rights, listed in international and domestic norms. It was concluded that, despite the advances represented by the recognition of the USoA, there is a long way to go for institutional mechanisms to adequately respond to systematic violations of rights in the prison system. A real dialogue between courts (STF and Inter-American Court of Human Rights), an active stance by the STF in applying constitutional norms, but also international ones, carrying out robust conventionality control, as well as an internal institutional dialogue capacity towards the creation and implementation of public policies are necessary.