Regime disciplinar diferenciado – RDD: análise comparativa do direito fundamental da sociedade à segurança pública x direito fundamental à integração social do preso componente de organização criminosa

Abstract

National or international organized crime is a reality in the modern world, violating laws, challenging the society and the sovereignty of States. In Italy, the “rigid prison” regime was adopted, and in Brazil, the Differentiated Disciplinary Regime to confront criminal mafia factions or not, both being tools of managing prison discipline. Also, States adopt measures that, as a rule, can generate tensions between the Fundamental Rights of citizens, whether from the perspective of public security or social integration in the case of prisoners. The evolution of the systems of punishment has resulted in an intense effort with focus, both in simple penal retribution, and in structured resocialization of human beings, reflected in the evolution of prisons. The tightening of criminal laws in the 1990s and the consequent prison overcrowding helped to promote the model's inefficiency. On the other hand, human rights are presented as pillars for the possibility of a dignified life, demanding a compatibility between a collective and individual rights. Consequently, the following research problem arises: Considering the fundamentality of the Rights to the public security of society and the social integration of prisoners and the possibility of tension between them in relation to members of Criminal Organizations, which of these principles may prevail in the context of the Regime Differentiated Discipline, under the perspective of the collision proposed by Alexy? Therefore, we start from the hypothesis that, in the context of the Differentiated Disciplinary Regime, if the right to social integration of the inmate component of a Criminal Organization prevents or interferes in the collective Right to public security, that may be restricted, after due weighting. To this end, the following objectives were identified: to present the evolution of the punishment system, prison models, penal schools, theories of punishment, and also the current scenario in relation to criminal hardening from the 1990s; Analyze whether there is compatibility between prison disciplinary measures, in Brazil and Italy, applicable to criminal organizations, aiming to understand their similarities with the national prison system, in particular with the Differentiated Disciplinary Regime; Analyze, from the perspective of the law of the collision of principles of Alexy with its three submaximals(adequacy, necessity and proportionality in the strict sense), the constant tension between Fundamental Rights to public security and the social integration of prisoners members of Criminal Organizations, defining which of these principles prevail in the context of the Differentiated Disciplinary Regime. It was used Robert Alexy's Theory of Principles as the theoretical-methodological framework and Paul Feuerbach's Theory of Psychological Coercion. It is a deductive research carried out through bibliographic review and documentary research. The hypothesis was confirmed, with the precedence of the Fundamental Right to public security in relation to the Right of integration of the inmate component of Criminal Organization in Differentiated Disciplinary Regime, considering the condition of maximum possible restriction of this Right, respecting the limit of unconstitutionality, promoted the achievement of the result of the preservation of the collective right to public security with repercussions on internal stability and the maintenance of public order