O controle jurisdicional de convencionalidade de políticas públicas como mecanismo efetivador dos direitos humanos fundamentais: à guisa de prospectar sua aplicação, qual corolário, à saúde no sistema prisional

Abstract

This research aims to carry out the analysis on the control of conventionality applied to public policies in order to enforce fundamental human rights, with an emphasis on health within the prison system. It is justified by its theoretical relevance, due to the divergences regarding the application of the control of conventionality by the operators of Brazilian law, as well as by the insoluble contradiction between the understandings of the majority doctrine of human rights and the Supreme Federal Court with regard to the hierarchical-normative position of International Conventions dealing with human rights, in addition to the investigation of the possibility of controlling public policies, taking international human rights treaties as a parameter. It is also justified by its social relevance, by the discussion about the control of public policies related to the right to health in the prison environment. We worked with the hypothesis that it is possible to exercise the control of conventionality, in a broad way, of public policies in the sense of the enforcement of human rights, with special focus on those related to health in the prison system. This is a transdisciplinary theoretical research in the scope of law, which encompasses the subjects of Constitutional Law, International Law, as well as Human Rights. The reasoning used in the present work was deductive. The methodological technique used was the theoretical research and content analysis procedure, in addition to the legal-dogmatic resource, with a line of scientific social technology, as well as the criticalmethodological one. The research was built from the types of legal-comprehensive, legal-comparative and legal-propositional research. A study was carried out on the legal systems of Argentina, Spain and Portugal, investigating the relationship between these systems and international human rights treaties. The research worked with primary data, namely legislation, jurisprudence and doctrine, the latter being used both as a primary source and as a secondary source, starting from the analysis of certain academic works as an intermediary within the reach of other doctrinal thoughts. Secondary data from the INFOPEN / SISDEPEN database, referring to the years 2019 and 2020, were also analyzed to check and compare the health situation in prisons in the State of Bahia, in scenarios before and during the pandemic. Human rights and their relationship with the Brazilian legal system were discussed, conceptualizing the Control of Conventionality, with the analysis of its parametrity. The control of public policies was also analyzed, verifying the possibility in the national organization. Finally, the health situation of the prison system in Bahia was investigated, with specific secondary data extracted from INFOPEN / SISDEPEN, so that it was possible to investigate the health situation in the Bahia State prisons, analyzing the previous scenario and during the COVID- pandemic. 19, analyzing how conventionality control can boost the development and evaluation of public policies related to the right to health in the prison environment