CIVIL LIABILITY ARISING FROM PRISONERS KILLED IN STATE CUSTODY: A JURISPRUDENTIAL ANALYSIS

Abstract

The main aim of this Final Paper is to analyze the case law on the duty of the State to make civil reparations to the families of prisoners who died in its custody. Individual guarantees are contemplated in the Brazilian legal system as primary obligations, so that in order to re-establish the balance violated by the damage resulting from non-compliance with one of these primary obligations, it is extremely necessary to resort to the institute of civil liability. The relationship established between the state and prisoners in Brazil is no different, since the Federal Constitution of 88 itself guarantees individual and collective rights to people in prison in Brazil, including punishment for any discriminatory act or violation of such rights. In order to achieve the purpose of the research, case law was used to analyze the application of legal norms to substantiate the state's responsibility to guarantee the safety and well-being of prisoners in state custody. In addition, the rights legally conferred on the victims' families were identified, including the right to compensation. In the course of the work, the two main strands of liability were necessarily discussed, which were accepted in addition to the Constitution, in the Brazilian Civil Code of 2002, such as subjective liability - accepted in art.186 CC, as well as objective liability, which is currently accepted in the CF/88 and adopted exceptionally in the practical field of Brazilian law - always by virtue of Law or the provision of risky activity. In order to carry out the research, documentary analysis was adopted, the primary source of which was case law on the subject under discussion. The deductive method was also used to start from a major premise, which is the fundamental rights established in the Federal Constitution of 1988, and to verify the defense of these guarantees in a particular issue, namely in the Brazilian prison space. Therefore, despite the fact that the constitutional provision - §6 of art. 37, accepts the thesis of the assumption of administrative risk to compensate the victim, it is necessary to improve the existing mechanisms so that this normative application, in practice, in addition to compensating for the damage caused - under a compensatory character, also makes it possible to achieve the idea of resocialization of the imprisoned person - prevailing a "circumspect look"³. After all, every Brazilian citizen should be treated under the aegis of fundamental human guarantees, regardless of the space or environment to which they are subjected.