Blog of the International Journal of Constitutional Law

An Unconstitutional State of Affairs in the Brazilian Prison System

[Editor’s Note: I•CONnect will present two perspectives on an important ongoing case in Brazil where the Supreme Federal Tribunal, in deciding a case relating to prison conditions, imported the unconstitutional state of affairs doctrine used by the Colombian Constitutional Court. An alternative analysis by Thiago Luís Sombra can be found here.]

–Vanice Regina Lirio do Valle, Harvard Law School and Estacio de Sa University

The failure of the prison system in Brazil is self-evident, and this matter has recently been brought before the Supreme Federal Court through several lawsuits, each treating different aspects of the State’s wrongful management of the issue. The Supreme Court has already decided that the Judiciary could order the Executive branch to proceed in renovating prison infrastructure so as to better accommodate the ever growing incarcerated population, despite the lack of existing budgetary provision (RG RExt 592591/RS, Justice Rapporteur Ricardo Lewandowsky). In another lawsuit, the Court is deciding whether the State can be held accountable for moral damages to inmates that are incarcerated in prisons in conditions below those necessary to preserve basic human dignity (RG RExt 580252/MS, Justice Rapporteur Teori Zavascky). The Supreme Court has also proclaimed that the Brazilian government must comply with international treaties that grant an arrested person the right to be presented before a judge no more than 24 hours after detention (ADI 5240/SP, Justice Rapporteur Luiz Fux).

The most recent ruling on the prison system happened on September 9, 2015; and the novelty resides in the use of the “unconstitutional state of affairs” as a central category for all claims that were expressed by the plaintiffs. In fact, the express proclamation of an unconstitutional state of affairs was the central request of the Socialism and Liberty Party that brought the lawsuit. The unconstitutional state of affairs is a kind of order created by the Colombian Constitutional Court, and applied first in a lawsuit denouncing undignified conditions in the prison system (Sentencia T- 153/98). In order to classify a breach of rights as an unconstitutional state of affairs, a massive violation of human rights is required, which is caused by a significant institutional blockage that must be overcome with the engagement of various institutional and social agents. The Brazilian prison system presents that same basic picture – as well as the omission of the Legislative and Executive branch to provide the required public policy and budget, as recognized by the Colombian Decision T-025/04 in order to declare an unconstitutional state of affairs.

A judicial proclamation of an unconstitutional state of affairs, briefly, allowed the Colombian Constitutional Court to experiment with supervisory jurisdiction, providing structural injunctions, followed by a dialogical phase in which the results of the proposed initial measures will be reported, in order to try and overcome the institutional blockage. The main role of the Court would be to facilitate that process, and follow closely implementation measures through time.

The unconstitutional state of affairs is a concept that has already been brought up in the Court’s rulings on a couple of occasions. In the rulings delivered in ADI 4357 and 4425, Justice Roberto Barroso mentioned a “permanent and grave unconstitutional situation” – an expression that, despite its differences with one built by the Colombian Constitutional Court — certainly contemplates the same concern. A second moment in which the unconstitutional state of affairs appeared in the Supreme Court was in the discussion about the State’s liability for moral damages inflicted on inmates due to the undignified conditions of their incarceration. Once again, Justice Roberto Barroso mentioned the Colombian precedent. Therefore, it was not a complete surprise that once again, when ruling on the prison system, the Court would both evoke the concept and the Colombian Constitutional Court.

Marco Aurelio, Justice Rapporteur, recognized the unconstitutional state of affairs and the idea that such a situation requires some kind of supervisory jurisdiction – just as the Colombian Constitutional Court had done previously. It should be noted that the Court in its ruling was applying the unconstitutional state of affairs category for the first time, and deciding only on a preliminary injunction. Despite the broader opinion by Marco Aurelio, the Court ended up issuing a very restricted injunction, granting only two among the eight formal petitions – a decision in a clear contrast with the decision’s rhetorical emphasis in proclaiming the Brazilian prison system to be a complete tragedy. The ruling ordered that the system fully obey, within 90 days, the treaty provisions requiring detainees to be presented to a judge in no more than 24 hours after detention. The Court also ordered the unblocking of special budgetary funding reserved to improvements in the prison system (FUNPEN) as a means to stimulate the necessary renovation in its units.

Curiously, despite the use of the unconstitutional state of affairs concept; the Court has not adopted any sort of monitoring related to that preliminary order.Thus, the Brazilian decision deviates from the Colombian experience, which incorporated monitoring as a crucial feature when delivering structural injunction, especially after Decision T-025//04 on internally displaced persons. That deviation might prove to be crucial for a case like this one that affects all of the national territory and involves at least two different levels of government.

The ruling is still very controversial. Among those who favor the importance of the Court’s intervention when facing an unconstitutional state of affairs, the decision has been criticized as timid and insufficient. On the other hand, those opposed to the ruling have pointed out its potential to harm the process of democratic deliberation. Another critique is that the decision may not be able to generate any substantive result, especially for the detainees that are already included in the system. After all, the only preliminary petition that the Court granted and that is directly related to the detainees is oriented only to prisoners who will be detained in the future (or those already in prison but who were never presented before a judge). Even the measures designed to unblock special budgetary funds cannot guarantee that the required improvements and renovations will happen.

I would like to elaborate on one additional critique. The whole idea when an unconstitutional state of affairs is recognized is to reach for a broader solution that considers the full breadth of the crisis.  This is not what happened in ADPF 347. The other recent and relevant rulings about the prison system by the Brazilian Court might even undermine the attempt to develop a comprehensive plan of action in the matter. After all, if a single Judge in any part of Brazil can order – as decided in RG RExt 592591 – that renovation should happen, as a priority, in prison “X”; this could definitely undermine a coherent national plan that will work to overcome the unconstitutional state of affairs proclaimed in ADPF 347.

Innovating can be hard – especially for a judiciary, which is often a fundamentally conservative institution. In spite of that, some level of experimentalism might be required to fulfill aspirational ideals like the ones in the Brazilian constitution. The main risk in that path is leaving the experiment without monitoring, which both threatens the concrete result sought by the Court and undermines the possible institutional learning process that should be associated with that proposal. The Colombian experience demonstrates that same weakness – but the Colombian reconfigured the device and overcame some of these problems by introducing monitoring as a mandatory feature. This monitoring involves not only governmental departments, but also organized civil society.

When it comes to inmates and penitentiaries, the Brazilian Court is very unlikely to find an NGO or any other kind of social organization that might help in the monitoring process. Despite that, the Brazilian constitution provide at least two independent and autonomous institutions (the Public Ministry and Public Ombudsperson’s Office) destined to promote the public interest, the defense of the collective good, and the protection of inalienable rights. Invested with independence and autonomy by the constitution itself, they are institutional agents created precisely to promote the constitution’s efficacy. Those two institutions also operate at both level of governments that are involved in the fulfillment of the Court’s ruling; therefore, they could potentially play an invaluable role in monitoring results. Both of the provisional orders will require, for example, specific information about the real implementation of the judicial hearing procedure and the new public expenditures due to the budgetary release. None of those reports was clearly ordered by the Brazilian Supreme Court in its preliminary orders, but requiring this information would not cause any harm to the checks and balances principle and will be necessary to effectively monitor compliance.

Thus, the deeper lesson of the Colombian experience with the unconstitutional state of affairs is this: In order to grant some potential of success for the Court’s decision, the intended legal transplantation must benefit from the incremental learning process of the Colombian Constitutional Court.

Suggested citation: Vanice Regina Lirio do Valle, An Unconstitutional State of Affairs in the Brazilian Prison System, Sept. 25, 2015, at:


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