A aplicação do sistema penal brasileiro para os povos ciganos: uma análise a luz da Resolução n° 287/2019 do CNJ e da Convenção n° 169 da OIT

Abstract

In Brazil, it is estimated that around 215 million people live. It's not just blacks, descendants of Portuguese or Europeans, who live in Brazil, we also have foreigners of other nationalities, indigenous peoples, quilombolas and tribal peoples, such as gypsy families. On the one hand, we have the Brazilian penal system, which, when an incriminating conduct is established, gives the State the right to punish the offender of the law, on the other hand, Roma peoples are also considered tribal peoples, and are under the protection of Convention n. 169 of the ILO ratified by Brazil, which supports respect for the cultures and ways of life of indigenous and tribal peoples. It is questioned how the application of custodial sentences to gypsies should be carried out? Therefore, the general objective is to examine the guidelines provided for in ILO Convention No. 169 of the ILO and Resolution No. 2872019 of the CNJ on the application of the Brazilian penal system to indigenous peoples, and as specific objectives: (i) understand the particularities of gypsy peoples and their characterization as tribal people; (ii) analyze the issue of rights inherent to gypsies and (iii) specify the custodial sentences, in order to go through the analysis of illegality, crime, prohibition error, motivated cultural crimes and defense culture. The State judge, faced with the criminalization of Gypsy conduct, must respect the forms of conflict resolution and application of criminal sanctions typical of Gypsy 'courts', respecting the fundamental rights of the human person, as well as the fundamental rights protected by our State, and prohibiting life, cruelty or death sentences. Always consult the people to indicate the most appropriate measure to apply to a gypsy.