EXTRACONTRACTUAL CIVIL LIABILITY OF THE STATE: THE DUTY TO INDEMNIFY IN CASES OF OMISSION REGARDING PRISON CONDITIONS

Abstract

This paper proposes an in-depth analysis of the civil liability of the State, based on the conduct it adopts, in light of the theories enshrined in the Federal Constitution, especially the provisions of Article 37, § 6, as well as its reflections in national doctrine and jurisprudence. The study addresses the constitutive elements of state liability, its main theories, and how they are applied to concrete cases, with emphasis on extracontractual liability arising from omissions by the public entity. It seeks to examine the points of convergence and controversies existing in the doctrinal and jurisprudential understanding of the subject, demonstrating that the application of theories relating to state omission is not absolute or uniform. On the contrary, there is a need for careful analysis of each case, considering the evolution of the understanding of the courts and doctrine, especially in the face of situations where the exclusion of the State's civil liability is admitted, such as in cases of the victim's exclusive fault, acts of God and force majeure, as well as those in which this liability is mitigated, such as the victim's contributory negligence.