Regime disciplinar diferenciado: análise sobre a constitucionalidade do instituto e a ofensa à função ressocializadora da pena

Abstract

Ten years after the peak of the chaos experienced by the Brazilian penitentiary system, whose main exponent was the occurrence of major riots in the states of São Paulo and Rio de Janeiro, the present study analyzes the Disciplinal Differentiated Regime – RDD, sort of disciplinary action applicable to pretrial detainees and final, which was established with the Law n. 10.792/03, as the supposed solution to all problems involving crime within the prison.The importance of this review lies in the fact that, in the view of most of the specialized doctrine, the RDD, in the molds where it is, besides offending the re-socialize function of the penalty, violates several constitutional and legal standards, characterized as an institute contrary to the penal garantism laid with the Constitution of 1988. In order to confirm this thesis, first we analyze several penal and criminal procedure principles related to RDD. After, we examine in detail the characteristics of the institute, his legal provisions and enforcement cases. Then, in an overall analysis, it is concluded that several constitutional rights and guarantees provided to prisoners are abused by RDD, reason turns out to be a blatant unconstitutionality. Finally, it criticizes the position of complicity adopted by the Brazilian judiciary, which succumb to pressure from other branches of government and society, chancelando the supposed legitimacy of this institution too harmful to the democratic rule of law.