Prisão domiciliar à luz do habeas corpus 143.641 do Supremo Tribunal Federal e o direito da mulher encarcerada à convivência familiar com os filhos crianças

Abstract

The present study analyses the phenomenon of women mass incarceration and seeks to understand the exercise of motherhood in the Brazilian prison system, from the perspective of house arrest and the right to family life for women incarcerated with their children. The incarceration of women is a problem thar increases dramatically in the country. Between 2000 and 2016, the women prison population increased by more than 600%, according to data present in the lastest Prisons of Penitentiary Information – Infopen, placing Brazil in the fourth position among the countries that most incarcerated women in the world. As a result, the reflection on the Human Rights of women prisoners and their right to family life has been the subject of constant debates in the Brazilian legal system. In a recent decision, the Supreme Federal Court, provoked by sectors os the civil society, granted Habeas Corpus 143.641 and defined thar pregnat women, mothers of children up to 12 years old incomplete and mothers of people with special needs, being under the punishment os provisional imprisonment, they have the right to substitute such imprisonment for the house arrest, at least until their case is finally judged. Thus, in the work it is analyzed how the Habeas Corpus os the Supreme Federal Court protects an important legal asset of the child, which is the coexistence with the maternal figure and demonstrates that it is necessary to observe the child’s right to maintain the intrafamily bond with the convicted mother, avoiding the rupture of the naturally established bonds between mother and child. In addition, it is noted that Supreme Federal Court’s decision also included cases of women arrested for involvement in drug trafficking, responsible for the highest percentage of women prisons incarcerated. Thus, the methodology used in the production of this dissertation was the qualitative approach, with documentary survey and jurisprudential investigation. The research is based on the principles of Critical Criminology and analyses the tendency of the Court of Justice of The States of Paraiba and Pernambuco regarding compliance with Habeas Corpus 143.641, investigating whether the constitutional remedy is being duly complied with. From the analysis of the discourse present in the jurisprudence of the Courts and the legal and non-legal foundations presented in the decisions, as well as the observation of the social varitions and the arguments contained in the precedents provided by the Courts themselves, the possible extrication of women is investigated, due to of house arrest guided by Habeas Corpus and if this type of arrest really serves the effective exercise of maternity by the custodians, maintaining the bond of coexistence with their children.