A cláusula da reserva do possível aplicada ao sistema penitenciário brasileiro: reflexões acerca da delimitação de seu âmbito de incidência sob a óptica da jurisprudência do Supremo Tribunal Federal

Abstract

The present work deals with the clause of the reserve of the possible, theoretical construction of German origin that was later transferred to the Brazilian legal system, where, received, it began to be repeatedly invoked by representatives of the Executive Power to, in the exercise of its administrative duties, justify, by the argument of the scarcity of financial resources, the realization of a certain claim related to the realization of fundamental social rights. In this context, the study in question aims to perform a systemic analysis of the confrontation of the adeluded clause by the homeland legal order, adopting, for both, as qualitative methodological procedures, the revision of the bibliography related to the theme, as well as the consultation of legislative and jurisprudential sources, especially the Superior Courts and the Supreme Court (STF). Once this is done, this research will focus on the application of the theory of the reserve of the possible to the Brazilian prison system, investigating, at the time, violations of fundamental rights of ownership of the prisoners experienced in it, which, due to its recurrence, resulted in the recognition, by the Supreme Court, of the Unconstitutional State of Affairs, whose assumptions will be appropriately investigated. Finally, the study in question also seeks to demonstrate, by examining the judgment in Extraordinary Appeal No. 592.581/RS, that the current conditions of prisons and other penal establishments also imply transgression of the so-called fundamental right to good administration, a situation that, with a view to implementing constitutionally assured guarantees and to implement the postulate of the dignity of the human person, in order to protect what is meant by the vital minimum, demands the action of the Judiciary in order to impose on the Executive Power, when omitted, obligation to make and implement certain public policies capable of imprinting effectiveness to constitutional commands, which, in the process of conclusion, does not configure, provided that the limits of its intervention are respected, a violation of the principle of separation of powers.