Primeira infância livre: o reconhecimento pleno da criança como sujeito de direitos em desenvolvimento e suas implicações para o desencarceramento infantil

Abstract

Based on the perspective of children and adolescents rights, this paper discusses inconsistencies and insufficiencies, in the normative and effectiveness dimensions of the law, regarding criminal execution of mothers who are separated from their minor children due to incarceration and mothers who have their children taken with them to prison in order to formulate a possible solution to the problem. Despite the institution of the Paradigm for Child Protection, which broke with the Irregular Situation paradigm, raising children and adolescents to subjects of rights, to holders of general fundamental rights and the specific rights that their peculiar condition as developing citizens requires, rights for children and youth are not yet fully included in criminal debates, in the courts and in the legislative agenda when it comes to the interests of these subjects. Thus, in the search for adequacy of the sentence of these mothers to children's rights, a collision was detected between the fundamental rights of their children and the fundamental rights of the victims violated by the crime practiced by these mothers. Thus, it was found that this is a problem that is difficult to solve, as there is a real incompatibility between the answers currently given by the State for the criminal execution of these mothers and children's rights, highlighting the necessity for a new approach for such execution, especially regarding mothers with children in early childhood. In these terms, it is proposed in this work, based on the list of children's rights and the rights inherent to criminal execution - already existing in the law -, decision parameters for the performance of the judicial power, as well as a resolution of the problem through a legislative reform.