Em busca de soluções jurídicas para o problema da pessoa com deficiência sujeita a condições de cárcere degradantes: reflexões sobre a inefetividade da reparação pecuniária do dano moral a partir do acórdão do STF no Recurso Extraordinário nº 580.252/MS

Abstract

The present work deals with the issue of civil liability of the State to persons with disabilities imprisoned in degrading prison conditions, based on the critical analysis of the solution found by the Federal Supreme Court in Extraordinary Appeal No. 580.252/MS – which can be applied to any prisoner – and, in particular, the legal regime for the inclusion and protection of persons with disabilities, in order to seek a different legal solution for this group, because of their vulnerability. In this context, the objective is to determine whether the pecuniary reparation, the measure conceived by the Supreme Court in the judgment in question is or not the most appropriate for situations involving persons with disabilities, as well as find other possibilities, whether or not raised in the judgment , through a systematic analysis of the Brazilian legal-constitutional order. The research was based on a qualitative method, based on jurisprudential, normative and bibliographic sources, as well as on the legal-descriptive model. The purpose of the research is to dissect the topic, to break it down in parts by analytical and descriptive methods, in order to examine the judgment in question, in parallel with the legal regime of protection and inclusion of the person with disability in Brazil, the institute of responsibility civil and the current prison situation, so that, at the end, the solution is found that is more in keeping with the human dignity of the prisoner, especially if he is a person with a disability. In conclusion, it was clear that the remedy determined by the STF is not the most appropriate and that there are others that are more in keeping with the legal regime of protection and inclusion of the disabled person: house arrest or remission of sentence.