A (in) aplicação da doutrina da proteção integral da criança e do adolescente na medida socioeducativa de internação à luz do conceito de “estado de coisa inconstitucional”

Abstract

The purpose of this paper is to demonstrate the inapplicability of the current paradigm for the protection of children and adolescents, according to which they should be the focus of attention and protection of the State, the family and society as a whole, when carrying out measures aimed at the "socialization and education" of adolescents in conflict with the law. The aim is to show that the Colombian decision-making technique, which recognizes the responsibility of the State in the repeated disregard of the fundamental rights of persons whose freedoms are restricted, can also be applied to the young people mentioned above. To do so, we first analyze the Ação de Descumprimento de Preceito Fundamental 347 and the Habeas Corpus Coletivo 143.988, to show that many of the problems that occur in penal institutions are also experienced in detention centers. Thus, this work will use the deductive method to analyze the general premises concerning the Prison and Socio-educational System. These premises were established in the two judgments on the subject mentioned above thus adopting as true the conclusions reached in both decisions, while also considering the problems and challenges that end up neglecting the Principle of Integral Protection. Bibliographical and documentary research will be adopted since the work will be based on previous studies that have already been conducted. These studies demonstrate the violations of the socio-educational system's rights and their resulting consequences. Additionally, doctrinal theoretical references will be utilized. Regarding the research approach, we will employ qualitative descriptive research to study the characteristics of prison and socio-educational groups. This will involve making the necessary comparisons and distinctions, as well incorporating subjective nature. Finally, the work will be divided into four main sections. First, a historical approach will be taken to present the development of the paradigm of integral protection. Next, we will discuss ADPF 347 and the development of the concept of "State of Unconstitutional Things". In the third section, HC 143.988 will be analyzed. Finally, a comparative analysis will be made, problematizing what happens inside detention centers.