Limitações ao direito de visitas íntimas em presídios federais: uma análise da validade das restrições e dos fundamentos expostos pela portaria nº 718/2017 do ministério da justiça e segurança pública

Abstract

This work dealt with the conjugal visits in federal prisons, which were object of Ordinance No. 718/2017 of the Ministry of Justice and Public Security (MJSP). This normative listed a ratio of requirements for the exercise of the mentioned visits. The conditions imposed by this Ordinance were more severe than those laid down by Ministerial Ordinance No. 1190 / 2008, prompting much debate in case law and in society about the validity of these rules, as well as about the legitimacy or possibility of those prisoners, especially in federal maximum security establishments, receive conjugal visits. The research problem then focused on assessing the constitutionality and legality of the restrictions imposed by Ordinance No. 718/2017-MJSP, closely on its “recitals” (grounds). For this, it was necessary to understand the Federal Penitentiary System within the national prison system. Next, it was necessary to understand the right of conjugal visit from a constitutional perspective, as well as to analyze the terms of the mentioned Ordinance that regulates the right to conjugal visit. The methodology applied was based on documentary and bibliographical studies, examining normative texts related to the theme, as well as judicial decisions, data collection about the penitentiary system, official news from organs of the justice system and the press, works that deal with constitutional law, criminal procedure and criminal enforcement. From these studies, it was verified the reasonableness of the grounds of Ordinance No. 718/2017-MJSP and the legal validity of restrictions on the right of conjugal visit of prisoners collected in federal prisons, although recognizing the importance of the humanization of penalties and the relevance of conjugal and social visits to prisoners. The specific mitigation of the right of conjugal visit is based on the effective prevention of risks inherent in the private contact between prisoners and persons outside the unit, given the impossibility of violating the confidentiality of these meetings and considering the profile of prisoners who are in these establishments, judicially recognized in proper process of transfer and inclusion of prisoners in federal maximum security facilities. In view of the need to preserve security and public order, including prison security, it is legally plausible to restrict conjugal visit, by regulation of the Executive, especially in the absence of express constitutional or legal treatment of conjugal visitation.