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Social issues are recurrent in the STF agenda under the management of Justice Lewandowski

 Friday, 22nd of July 2016

Issues related to the areas of health, environment, consumption, elderly persons, children, teenagers and disabled people have been recurrent on the agenda of the Brazilian Federal Supreme Court's (STF) judgments over Chief Justice Ricardo Lewandowski’s term in office, which began in September 2014. On several occasions, the Court issued decisions on social issues interpreting the law not only from rules written in the Constitution and the laws, but also based on principles.

Examples of this are given through various trials in the last biennium. In the area of health, in May 2016, in the hearing of the injunction in a Direct Action of Unconstitutionality (ADI) 5501, the Supreme Court applied the principle of human dignity to suspend the effectiveness of Law 13,269/2016, which allowed the use of synthetic phosphoethanolamine, known as "cancer pill". By majority vote, the justices accepted the argument of the Brazilian Medical Association (AMA), the plaintiff, that due to the lack of substance of tests on humans and the lack of understanding of the drug’s efficacy and side effects, its release would be incompatible with fundamental constitutional rights such as the right to health, safety and life.

The Plenary also decided whilst judging RE 581488, that class segregation in the Unified Health System (SUS) is unconstitutional. The Supreme considered that the possibility of an SUS patient paying for superior accommodations or to be treated by doctor of his or her choice is contrary to Article 196 of the Federal Constitution, which guarantees all citizens universal and equal access to health services. The matter was subject of a public hearing object held by Justice Dias Toffoli in May 2014.

Through the Virtual Plenary, the Supreme Court dismissed the RE 855178 and reaffirmed its case law to recognize that federal entities have joint responsibility in the supply of medicines and health care. In the analysis of the ADI 5357, in June 2016, the Court determined that private schools must comply with the Disabled Persons’ Statute, promoting the inclusion of people with disabilities in mainstream education and providing necessary adjustments without the financial burden is passed on to monthly tuition, yearly tuition and enrollment fees.

Prison system

The Court also held hearings on cases of great repercussion, importance and impact on the Brazilian prison system. In the RE 841526, by unanimous vote, the Court held that the State has liability for the death of detainee in the prison establishments in the event of failure to comply with its specific duty of protection. In a recent trial (RE 641 320), the Court ruled that the absence of prisons that are compatible with the criminal penalty does not authorize the maintenance of the prisoner in a more onerous prison regime.

On another occasion, when analyzing Habeas Corpus (HC) 118533 in June 2016, the justices understood that the crime of drug trafficking has heinous nature. In privileged trafficking, penalties may be reduced by one sixth to two-thirds as long as the agent is primary, of good background, and is not engaged in criminal activities or integrates criminal organizations. On the occasion, the Chief Justice of the Supreme Court, upon voting for the removal of the effects of hideousness in privileged trafficking, presented data from the Integrated Penitentiary Information (InfoPen) of the Ministry of Justice show that, of the 622,202 people in situations of deprivation of liberty (both men and women), 28% (174,216 in jail) are imprisoned by virtue of convictions resulting from the application of the Drug Law. According to Justice Lewandowski, it is estimated that among the population of convicted trafficking crimes or associated trafficking, about 45% - something around 80 thousand people, mostly women - have received sentence with explicit recognition that were first offences, with a clean background and not being part of a criminal organization.

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