A (in)constitucionalidade das punições disciplinares aplicadas com cerceamento de liberdade no regulamento disciplinar da Brigada Militar do Rio Grande do Sul

Abstract

The right to freedom is a fundamental right, written in the Federal Constitution of 1988. By the art. 5º of FC/88, no one will be imprisoned unless in flagrant delict, except in cases of disciplinary transgression or a military crime, defined in law. In view of the Disciplinary RegulationofMilitary Brigade of Rio Grande do Sul was instituted by the Decree nº 43.245/04 and it foresee, within the disciplinary sanctions, punishment applied with retrenchment of freedom, such devices, art. 9, III e art. 12 from the referred Decree are inconstitucional, since they reproach directly the constitutional principle of legal reserve. This way, this work sought to present doutrinary and jurisprudence positions about the issue in matter, pointing out the favorable and the unfavorable arguments to unconstitutionality of such devices. So, initially was presented the historic of the Military Brigade of Rio Grande of Sul and its disciplinary regulation. Then, was sought, specifically, the matter of the unconstitutionality of the devices related to the disciplinary punishment with freedom retrenchment foresaw in the DRMB. Still, was made an analysis of the given decision by the Military Court of the State of Rio Grande of Sul, as diffuse control of constitutionality, through Direct Action of Unconstitutionality proposed against the Disciplinary Regulation of the Army. E, lastly, was sought to define the legal objectivity of the disciplinary sanction and the analogue case of the Disciplinary Regulation of the State of São Paulo, that was instituted through Complementary Law.