Inconstitucionalidade e inconvencionalidade do Regime Disciplinar Diferenciado: a ADI 4.162/2008 e o caso Hernandez Norambuena x Brasil

Abstract

This study critically analyzes the Special Disciplinary Regime within the context of the Brazilian prison system, particularly from its creation as a state response to prison crises and the strengthening of criminal organizations. The research problem consists of assessing whether the RDD, as regulated by the Criminal Sentence Enforcement Law and expanded by Law No. 13,964/2019, is compatible with the 1988 Federal Constitution and with the international human rights treaties ratified by Brazil. The objective is to examine the constitutional and conventional limits of the regime, with emphasis on human dignity, due process of law, and the prohibition of cruel, inhuman, or degrading punishment or treatment. The methodology adopts a qualitative and documentary approach, based on the analysis of legislation, judicial decisions, institutional statements, and documents produced in the context of Direct Action of Unconstitutionality No. 4,162, filed by the Brazilian Bar Association, as well as the case of Mauricio Hernández Norambuena v. Brazil, examined by the Inter-American Court of Human Rights. The research findings indicate that the RDD, although formally presented as an exceptional security measure, presents significant structural weaknesses, such as the expansion of isolation, the possibility of successive extensions, the use of vague criteria for its application, and the insufficiency of effective procedural guarantees. It was found that these characteristics facilitate violations of fundamental rights, undermine the rehabilitative function of punishment, and reinforce a punitive logic based on the perceived dangerousness of the individual. The conclusion is that the RDD (Regime Disciplinar Diferenciado - Differentiated Disciplinary Regime) is unconstitutional, as it violates constitutional principles and guarantees, as well as being unconventional in relation to international human rights treaties, given that its incompatibility with international human rights treaties has already been recognized by the Inter-American system. In this sense, it is expected that the Supreme Federal Court will recognize its unconstitutionality, in accordance with the understanding established by the Inter-American Court of Human Rights.