Covid-19 and the Brazilian Prison System: Criteria and Limits Imposed by Courts to Grant Liberty

Abstract

The pandemic caused by COVID-19 (Sars-CoV-2) reshaped all manners of acting and dealing with situations involving the rulings within the Brazilian prison system. Renewing the prior declaration by the Brazilian Supreme Court “unconstitutional state of affairs”, with the reiterated violation of human rights, the current scenario has revealed inconsistencies of judicial rulings in face of similar situations, corroborating to mitigate legal security.Brazilian prisons already have issues related to overcrowding and fragility – and in many cases to necessary care regarding social reintegration of those who pass through the system. However, in addition to the already existing contagious outbreaks within Brazilian prisons, the new coronavirus has amplified the challenge on the Judiciary, which must ensure – at the same time - the health of those who are deprived of their liberty and determine guidelines that provide legal parameters to decisions in times of unusual crisis, such as ones experienced during a pandemic.For this reason, there is a need to establish parameters for granting or denial of liberty. The Nacional Council of Justice (CNJ) issued the Recommendation n. 62/2020, providing guidelines to judicature regarding prevention against the COVID-19 mass infection within the scope of Brazilian prison system. The recommendation adopted criteria about imprisonment reality, virus dissemination speed and the conditions of prison premises, therefore proposing, in some cases, the flexibility of custody or transfers to other units.However, despite of this normative direction, an analysis of judicial decisions issued on habeas corpus, including the Brazilian Federal Supreme Court, reveals the lack of uniformity among judicature, which does not corroborate to achieve the purposes sought by the CNJ, as well as demeaning the fundamental right to equality foreseen in our legal system.The present assay analyses the variability of decisions issued by the judicature, utilizing the online database of The Justice Court of São Paulo, for it is the largest State Court in Brazil in numbers of cases involving imprisonment, as well as decisions issued by the Brazilian Superior Court of Justice and the Supreme Court, identifying the different criteria adopted, in order to demonstrate the lack of legal security, inviting into a reflection of whether the Brazilian Judiciary is effectively meeting its final purpose: to produce social pacification.

Keywords: Prison System; Covid-19; Habeas Corpus; Brazilian Courts; Criteria.

DOI: 10.7176/RHSS/11-11-03

Publication date:June 30^th 2021