Justiça e vulnerabilidade dos presos no sistema penitenciário brasileiro: aplicação da ODS 16 e do Jus Cogens para a superação do direito penal do inimigo, conforme a doutrina de Zaffaroni

Abstract

This dissertation discusses the vulnerability of prisoners in the Brazilian prison system,analyzing it from the perspective of Sustainable Development Goal (SDG) 16 and its relationship with jus cogens and Eugenio Raúl Zaffaroni's (2007) critique of enemy criminal law, highlighting the importance of the Judiciary's role in equalizing this vulnerability. SDG 16 is part of the United Nations (UN) 2030 Agenda and involves the need for public policies to promote peaceful, inclusive societies and universal access to justice. The research highlights the importance of invoking the non-derogable international protection norms enshrined in jus cogens, whose system seeks to impose on States the obligation to respect and guarantee fundamental rights. The theoretical framework focuses on the tension between the criminal law of the enemy and the criticisms promoted by Zaffaroni, who denounces the criminalization of poverty and the formation of the marginalized individual as a “social enemy.” The methodology adopted is qualitative, with the research being applied and based on a review of the literature and documentary analysis, notably of international treaties, Brazilian legislation, reports from the National Council of Justice (CNJ), and INFOPEN, the Statistical Information System of the Brazilian Penitentiary System. The study concludes that the articulation between SDG 16, the principles of jus cogens, and Zaffaroni's critique can develop a more humanistic vision for addressing the social vulnerabilities that characterize the Brazilian prison system. It emphasizes that the Judiciary has taken a leading role in the search for improvements in prison units. The judgments analyzed show that the reserve of the possible should be seen not as a budgetary shield, where the State takes refuge under the cloak of omission, but as a duty to manage budgetary resources efficiently, in a manner that is consistent with SDG 16 and respects the physical and moral integrity of individuals subject to measures restricting their freedom.