Recognition, Redistribution and Popular Participation: Towards an Integrative Judicial Policy

Judiciary may impose prison works to guarantee fundamental rights

source: STJ

Thursday, 13 August 2015

The Supreme Court Plenary (STF) ruled at Thursday's session (13) that the judiciary may order the Public Administration to carry out emergency works or reforms in prisons to guarantee the fundamental rights of prisoners, such as their physical integrity. and moral. The decision was taken in the judgment of the Extraordinary Appeal (RE) 592581, with general repercussion, brought by the Public Prosecutor of Rio Grande do Sul (MP-RS) against judgment of the local Court of Justice (TJ-RS). The Gaucho Court considered that it would not be for the Judiciary to enter into matters reserved for the Public Administration.

Public Civil Action

Originally, the public prosecutor from Rio Grande do Sul filed a public civil action against the State of Rio Grande do Sul to promote a general reform in the Uruguaiana State Hostel. The lower court ordered the establishment to be reformed within six months. The state appealed to the TJ-RS, which overturned the ruling because it considered that it is not for the judiciary to determine that the Executive Power perform works in prison, "under penalty of undue interference in a field reserved for the Administration."

The MP appealed to the Supreme Court, claiming that fundamental rights have immediate applicability, and that budgetary issues cannot prevent the implementation of public policies aimed at guaranteeing them. According to the MP, the protection and promotion of the dignity of the human being guide all constitutional order, and the state has obligation to confer effectiveness and effectiveness to article 5, item XLIX, of the Federal Constitution, to give minimally dignified conditions to those who finds himself deprived of liberty.

State power

The rapporteur of the case, Minister Ricardo Lewandowski, said he understands that the judiciary cannot omit when the competent organs compromise the effectiveness of individual and collective fundamental rights. "The time has come for the judiciary to live up to the high powers granted to it by the Federal Constitution, assuming the status of State Power, especially when the other Powers are absolutely silent on the issue of prisons," he said.

In his vote, the President of the Court gave an account of the situation of Brazilian prisons, which currently imprisoned more than 600 thousand detainees, revealing subhuman situations, violating the constitutional principle of human dignity, as well as riots, conflicts, rapes and even homicides. , including cases of beheading. In the case of Albergue de Uruguaiana, discussed in the appeal, the president revealed that an inmate died electrocuted as a result of the poor conditions of the establishment. TJ-RS himself, the minister recalled, despite reforming the decision of the first-level judge, acknowledged the degrading situation of the prisoners.

This situation of calamity, said the minister, makes Brazilian prisons “real deposits of people”, preventing the fulfillment of the resocializing function of the penalty, and causing an exacerbation of the sanction by applying additional penalties in the form of degrading situations. “The subjection of prisoners to the conditions described above shows, with clear meridian, that the state is subjecting them to a penalty that goes beyond the mere deprivation of liberty provided for in the sentence, because it adds to it physical, psychological and moral suffering, which , in addition to undermining any notion of respect for human dignity, it removes any potential for resocialization from the sanction, ”he said. The intervention of the judiciary, in these cases, stressed the rapporteur, also has the function of preventing this over execution.

Contrary to what was sustained by the Court of Justice, the minister said that it is not possible to consider the hypothesis in which the judiciary would be improperly entering a field reserved for the Public Administration. "In the case of the case, we are facing a clear violation of fundamental rights, practiced by the state itself against people in its custody, fulfilling to the judiciary, by constitutional duty, to offer them due protection."

Separation of Powers

The president also said that one can not speak of disrespect for the principle of separation of powers, and cited the principle of the inability of jurisdiction, one of the fundamental guarantees for the realization of fundamental rights. The constitutional provision (Article 5, item XXXV) states that the law will not subtract from the appreciation of the judiciary any injury or threat of injury to the law. This postulate, as he pointed out, is one of the pillars of the Democratic Rule of Law.


For the minister, it is also not worth mentioning the lack of funds, as the National Penitentiary Fund has funds of around R $ 2,3 billion, and to use them only the federal entities submit projects and enter into agreements to carry out works. But for Lewandowski, there is no willingness to implement policies at the federal or state levels to address the problem.

Thus, he concluded that the so-called possible reservation clause cannot be used as an argument to try to prevent the application of decisions that determine the execution of emergency works.


The rapporteur's vote to uphold the appeal of the MP-RS was followed by all the ministers, who mentioned the terrible situation of Brazilian prisons and agreed that the prosecutor has the legitimacy to request the implementation of public policies in court. by the Executive Power to realize the guarantee of collective fundamental rights. They all stressed that it is up to the judiciary to act to guarantee prisoners decent penitentiary treatment as a means of preserving their fundamental rights.


Also unanimously, the Plenary accompanied the rapporteur's proposal for a general thesis. “It is lawful for the judiciary to impose on the Public Administration an obligation to do, consistent with promoting measures or carrying out emergency works in prisons to give effect to the postulate of the dignity of the human person and to ensure detainees respect for their physical and moral integrity, in accordance with the provisions of article 5 (item XLIX) of the Federal Constitution, the argument of the reservation of the possible nor the principle of separation of powers being opposable to the decision ”.

Read vote of the rapporteur.