STATE OF UNCONSTITUTIONAL THINGS AS A FORM OF PROTECTION OF FUNDAMENTAL RIGHTS IN THE BRASILIAN PENITENTIARY SYSTEM
DOI:
https://doi.org/10.21680/2318-0277.2020v8n2ID22557Keywords:
State of Unconstitutional Things, ADPF nº 347/DF, Brazilian penitentiary system, Fundamental rightsAbstract
The essential rights are shown to be essential, as set out in the first articles of the 1988 Constitution. However, in spite of its indisputable normative force, the hypothetical judgment of the duty to be does not correspond to the being of factual reality. Thus, the STF, in ADPF nº 347/DF, declared the State of Things Unconstitutional (ECI) in the Brazilian penitentiary system. Such a declaration legitimizes the STF to take activist measures in the public policy cycle, arousing antagonistic positions regarding its incidence. Thus, using the deductive method, we seek to analyze the (in) applicability of the ECI in the Republic of Brazil, in order to investigate the action of the STF in favor of the protection of fundamental rights. Therefore, the STF's intervention will not imply an outpouring of the Supreme Court's powers, since it is an exceptional measure, being a way of strengthening the Democratic Rule of Law.