O estado de coisas inconstitucional e a busca por uma jurisdição constitucional legítima e eficiente: uma análise da adoção do instituto colombiano na APDF nº 347/DF

Abstract

The adoption of the Unconstitutional State of Affairs (USoA) in the ADPF nº 347/DF, is examined in order to verify if the way the Colombian institute is adopted allows a legitimate and efficient Supreme Federal Court intervention to solve the crisis of the Brazilian prison system. In this sense, it is sought to know what are the non-normative unconstitutional omissions and the response of the Judiciary to these omissions, that is, the structural injunctions, gender in which ECI is included. Before performing the analysis of APDF nº 347/DF, it seeks to differentiate judicialization of politics and judicial activism, as well as to establish the presuppositions for a legitimate and efficient judicial activism in the scope of public policies, which will be fundamental to evaluate the formulated requests in said action. Once this determination has been made, the requests formulated in the action, both those requested in a precautionary nature and the final requests, are examined in order to analyze whether the petitions allow a legitimate and efficient intervention of the Supreme Court in solving the crisis of the penitentiary system. Finally, we analyze the Meaningfully Engagement, a structural injunction model developed in South Africa, asking whether this decision-making technique allows a legitimate and efficient Supreme Federal Court action to overcome the institutional obstacles that compromise the existential minimum of those incarcerated. In addition, the advantages of Upper House Bill nº 736/2015, whose main objectives are to establish objective parameters for the declaration of the Unconstitutional State of Affairs and, if this institute is applied, that be formulated a Meaningfully Engagement between the Public Power and the social segments affected by state actions and omissions, in order to overcome the existing institutional omissions.