Numerus clausus: de princípio da execução penal a regra de direito fundamental

Abstract

This article aims to present the relationships between the uses of the term numerus clausus in the debate on fundamental rights and as a principle of penal execution. It starts from references to the use of the term by the German Federal Constitutional Court in the 1970s. With this approach, it begins, then, by resuming the meaning that numerus clausus carries within the constitutional debate and its interaction with the theory of “reserve as possible.” In sequence, the origin of the use of the numerus clausus in penal execution is traced, as an alternative to the penitentiary situation and the lack of vacancies that affects the existential minimum and the dignity of the human person. In the subsequent section, the recognition of the “The State of Unconstitutional Affairs” (ADPF 347) and the application of the numerus clausus in the socio-educational system as a “management strategy” by the Federal Supreme Court are discussed. Given the indeterminacy of the term due to its uses as a principle, system, logic and “management strategy”, it is proposed to use the numerus clausus as a rule of fundamental law, based on the theory of Robert Alexy. In conclusion, the connection is made with the dignity of the human person, the maintenance of the existential minimum, and the recipients of fundamental rights to consider the jusfundamentality of numerus clausus in the face of the constitutional nonconformity experienced by individuals in custody under the Brazilian state.