Sistema penitenciário brasileiro: divergências entre o ser e o dever-ser

Abstract

The crisis in which the Brazilian penitentiary system finds itself is notorious. It is clear that violations of the fundamental rights of prisoners have persisted over time. Furthermore, there is a contradiction between what is established in the rules pertaining to the prison system and the conditions in the country's prisons. Thus, the study is justified by the need to point out certain elements of the prison problem and some of the possible solutions to transform the prison reality. In this logic, the guiding problem of the research emerges: since there is a massive violation of legislation regarding the rights of prisoners, what means can be used to change the current penitentiary system? Thus, the general objective of the research is to analyze some of the divergences between what is; the current reality of the prison system; and what should be, what should exist, in accordance with the laws pertaining to Brazilian prisons. To achieve this goal, a theoretical research was conducted, which, in terms of its objectives, is descriptive and explanatory, since it described some of the legal institutes related to the prison theme and sought to establish a relationship between them and the actual reality of prisons, in order to find ways to end the systemic violation of prisoners' rights. In terms of procedures, the research is bibliographical, since it is based on legal texts of domestic law; such as the Brazilian Federal Constitution of 1988, the Penal Enforcement Act, the Penal Code and the Code of Criminal Procedure; and documents originating from international law, such as the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the InterAmerican Convention to Prevent and Punish Torture and the American Convention on Human Rights. Furthermore, a bibliographic framework was used based on works by Leal (2018), Moraes (2017), Pereira (2017), Salla (2008), Varella (2005), among other authors. Regarding the methodology, the research has a qualitative approach, with an inductive method, since it attempts to interpret perceived elements, through the meaning they carry and the reality in which they are located, also seeking moderately generalizing inferences, based on the analysis of specific situations.