O PROCESSO DE EXECUÇÃO PENAL À LUZ DA ADPF 347: O ESTADO DE COISAS INCONSTITUCIONAL

Abstract

This present work analyzes the process of penal execution in light of the argumentation of the breach of a fundamental precept (ADPF) 347, in which the Brazilian Supreme Federal Court, drawing from Colombian legal precedents on the subject, recognized and declared the existence of a constant state of unconstitutional affairs concerning Brazilian prisons. This recognition is due to the dramatic situation of prison overcrowding and massive violations of the fundamental rights and guarantees of the incarcerated, a situation caused both by the inaction and the inability of public authorities to change the factual circumstances that lead to these violations. To achieve the goal of this work, it was necessary to develop a descriptive methodology through a comparative study of the formally established legal provisions with the harsh material reality experienced within the prison system. In the end, it became evident that judicial activism and the decision of the Brazilian Supreme Court in recognizing these situations of abuse, illegality, and omissions by the government, referred to as an 'unconstitutional state of affairs,' not only diagnose the chronic problem plaguing the Brazilian penal system but also represent the first step towards creating policies aimed at restoring humane conditions for serving sentences and safeguarding and respecting the rights and guarantees of those serving sentences or in pre-trial detention.