O estrangeiro e a progressão de regime prisional no sistema jurídico brasileiro

Abstract

The objective of this thesis is to question de decisions of the Supreme Court of Brazil which deny the foreigners in irregular situation in the country, especially those facing an executive order of expulsion, the possibility of progression in the prison regime. To do this, we have carried out a survey of the decisions concerning the theme and looked for arguments used to carry on this discrimination. The second step was to study all the elements witch have something to do with the question. We elected the following themes: foreigners juridical situation; executive order of expulsion; the penalty as a limitation of freedom; the equality principle; the principle of the human being dignity; constitutional interpretation; constitutionality control. After the conclusion of this study, we went on to analyze the argumentations of the Supreme Court to perpetrate this discriminatory treatment. We demonstrated the mistake of the decisions witch are based on a literal interpretation of the legal provision involved, thus despising constitutional principles such as freedom, equality and dignity of the human being. A systematic interpretation, enhanced by constitutional values and principles, would conclude that the discrimination between Brazilians and foreigners concerning freedom is inconconstitutional as freedom is a right connected to men as a human being and not as a citizen. Therefore, the denial of progression prison regime for the arrested foreigner in irregular situation is inconstitutional, because it affects the right to freedom, equality and dignity of the human being. The solution is an interpretation in accord with the Constitution, with allows the arrested foreigners the right to paid labor, indispensable condition for the concession of the benefit of the progression prison regime.