Ministério Público, por seu Promotor de Justiça Curador da Infância e da Juventude contra o Estado do Rio Grande do Sul s. Ação Civil Pública. [ENG]
Public civil action demanding the creation of confinement and partial release programs for young offenders. The Judiciary as a competent authority to decide on budget allocations. The State's impossibility to allege lack of financial resources based on the Constitution's foremost priority given to protecting the rights of children and adolescents.
The Prosecutor's Office initiated a public civil action against the State of Rio Grande do Sul, Brazil, seeking to achieve enforcement of the Children and Adolescents Law (domestic law), including the creation and maintenance of confinement and partial release programs for young offenders. The Regional Courts for Young Offenders had to order socio-educational confinement measures to be implemented in Porto Alegre, because this was the only city where such facilities were available. This situation prevented children and adolescents from exercising their right to be confined at the same or nearest location where their family resides so as to guarantee at least weekly visits. The State claimed that the Judiciary should not hear such matters, because budgetary allocations were a discretional power of the Executive Branch. However, the court decided that it was empowered to act, since one of its functions is to weigh acts resulting from the political will of the other branches against the legal system so as to identify violations. The court concluded that the Administration could not claim it lacked the financial resources, because the Constitution gave foremost priority to the realization of the rights of children and adolescents. The decision favored the action and ordered the State to comply with its obligations by allocating the necessary budgetary resources to build the facilities.
Keywords: Ministério Público, por seu Promotor de Justiça Curador da Infância e da Juventude contra o Estado do Rio Grande do Sul s. Ação Civil Pública, Children, Rights
The decision was appealed by the State of Rio Grande do Sul. The High Federal Tribunal has not issued its decision so far.
Claimant: Prosecutor’s Office Respondent: State of Rio Grande do Sul
In Brazil, actions such as the one known as public civil action have been very common, making it possible to obtain court protection in respect of certain types of crimes that otherwise would have been arbitrarily committed. This case shows the potential monitoring role of the Judiciary in the design of public policies and the realization of children's fundamental rights when budgetary items are at stake.