From special subjection relationship
to due process of law: the disciplinary regime of professional regulatory
councils
Name: DIANNA BORGES RODRIGUES
Publication date: 25/05/2026
Examining board:
Name |
Role |
|---|---|
| GEOVANY CARDOSO JEVEAUX | Presidente |
| GILBERTO FACHETTI SILVESTRE | Examinador Interno |
| SARAH MERCON VARGAS | Examinador Externo |
Summary: This research investigates the minimum procedural parameters required for the exercise of
disciplinary power by professional regulatory councils, in light of due process of law within the
Democratic Rule of Law. It is based on the premise that, although such entities are endowed
with normative and sanctioning autonomy, they perform a state punitive function, with the
authority to impose sanctions capable of restricting fundamental rights, such as the freedom to
exercise a profession and passive electoral capacity. In this context, the study aims to identify,
systematize, and propose an essential core of procedural guarantees applicable to administrative
disciplinary proceedings conducted by these councils, using as a reference the ethicalprofessional procedure adopted by the Medical Councils. The research adopts a qualitative
methodology, primarily consisting of bibliographical analysis, employing the deductive method
developed from the examination of normative and doctrinal premises related to Administrative
Law, Administrative Sanctioning Law and Procedural Law. The study is structured around three
main axes: (i) analysis of the legal framework governing professional councils and their
disciplinary power; (ii) examination of the current state of administrative disciplinary
proceedings and the guarantees that compose due process of law; and (iii) critical application
of these parameters to the procedural model adopted by the Medical Councils. As a result, the
research demonstrates that, although the theory of special subjection may be partially applicable
– with implications for the flexibilization of material guarantees such as legality and typicity –
such reasoning does not extend to the procedural sphere, where an intangible core of
fundamental guarantees must prevail. From the perspective of formal due process, this core
includes adversarial proceedings and full defense, the right to evidence, the presumption of
innocence, the natural judge, the duty to provide reasoning in decisions, and the
individualization of sanctions. It was also found that, from a substantive standpoint, due process
requires rationality in the application of sanctions, particularly when they entail restrictions on
fundamental rights, thereby ensuring predictability and enabling control over the State’s
sanctioning activity.
