A concessão da prisão domiciliar às mulheres encarceradas gestantes e com filhos de até 12 anos: análise de julgados do Tribunal de Justiça do Estado do Ceará

Abstract

This study investigates the phenomenon of female mass incarceration, aiming to understand the exercise of motherhood in the context of the Brazilian prison system. The analysis focuses on the perspective of house arrest and the right of incarcerated women to family life with their children. This incarceration shows a predominantly increasing trend, considering that, according to the National Penitentiary Information Report, in 2016, the number of women deprived of liberty reached the mark of 42 thousand. This value reflects a significant increase of 656% compared to the total recorded in the early 2000s. Given this, consideration of the human rights of incarcerated women and the relationship with the principle of full child protection has been the subject of frequent discussions in the Brazilian legal context. In a recent decision, the Federal Supreme Court, instigated by segments of civil society, granted Habeas Corpus 143,641. In this deliberation, it was established that pregnant women, women who have recently given birth, mothers of children under 12 years of age and mothers of people with special needs, subject to preventive detention, now have the right to replace this detention with house arrest, at least until their case is resolved. be judged definitively. However, some restrictions were established regarding the exercise of this right, namely: the crime was carried out through violence or serious threat, against the descendants of the accused or the presence of "very exceptional situations" that justify the maintenance of the more rigorous measure, which they must be duly substantiated by the judges who propose them. In this study, it is examined how Habeas Corpus, granted by the STF, seeks to protect an important legal interest of the child, which is the right to coexistence with the mother. The work highlights the need to consider the child's right to maintain family ties with the mother who is preventively imprisoned, thus preventing the breaking of bonds naturally established in motherhood. The methodology adopted for the preparation of this dissertation was qualitative, involving documentary research and jurisprudential research carried out at the Court of Justice of the State of Ceará, regarding compliance with the aforementioned collective Habeas Corpus and whether the rights guaranteed to incarcerated mothers and their children are being implemented.