UNCONSTITUTIONAL STATE OF AFFAIRS IN THE PRISON SYSTEM: CONSTITUTIONAL COURT AND PUBLIC POLICIES OF CONTROLLING COVID-19

Abstract

Objective: This paper aims to test the hypothesis of the constitutionality of the public policies implementation by the Federal Supreme Court to tackle Covid-19 in the Brazilian prison system supported by the unconstitutional state of affairs theory developed by the Constitutional Court of Colombia.

Background: To this end, it addresses the serious political and legal issues of the prison system, which have been aggravated by the current pandemic moment.

Method: The indicative paradigm was prioritized as the methodology of the present work, with the study of two paradigmatic cases analyzed under the theoretical frameworks necessary to apprehend concepts inherent to the theme.

Results: As obtained, the research shows that the declaration by the Federal Supreme Court of the unconstitutional state of affairs in the Brazilian prison system innovates by opening possibilities for the Court to take on the role in the formulation, implementation and control of public policies. In cooperation with the other Powers (and eventually with private actors). With the aim of promoting material democracy. Despite the caution that must be taken in order to guarantee the soundness of the separation of Powers (an essential element of a democratic State). An analysis based on the principle of the unity of the Constitution (which must be interpreted as a system of interrelated norms) endorses the legitimacy of applying the theory of the unconstitutional state of affairs in cases where it is not possible to achieve the realization of fundamental rights. As is the case of the prison system.

Conclusion: In this way, the intersections between constitutionalism and democracy are worked, as well as the role of the Powers in facing the health crisis from the theoretical analysis of these elements (bibliographic review); an analysis of the paradigmatic decisions (albeit in a preliminary order) of the Federal Supreme Court (ADPF 347 and ADPF 684), which embraces, for the first time in Brazil, the theory of the unconstitutional state of affairs; paradigm decisions are compared with the Covid-19 numbers provided by public entities. In the end, this work proves the constitutionality and the need to implement public policies to protect the rights of the vulnerable in the penal system. It is especially true in the context of the Covid-19 pandemic, and that the Constitutional Court's role in this mission does not corrupt the Separation of Powers, if the requirements of the unconstitutional state of affairs theory are met.