Notizie, Sentenze, Articoli - Avvocato Militare Trapani



TABLE OF CONTENTS: 1. Competency of Military Justice to  Trial  Civilians  -  Historic  Precedents  2.  The  Trial  of  Civilians  by Military  Justices  in  the  World  3.  The  Brazilian  Federal  Military Justice  4.  The  Representation  of  Society  and  the  Defendant  in Military  Justice  5.  Brazilian  Military  Justice  Procedure  for  the Investigation  and  Prosecution  of  a  Military  Crime  6.  The  Brazilian Military  Criminal  Code  and  the  Military  Crime  Definition  7.  The Mission  of  the  Armed  Forces  in  Brazil  and  the  Role  of  Military Justice  8.  The  Trial  of  Civilians  by  Military  Justice  9.  The  New Proposal Presented by the Military Justice 10. The Claim of Breach of  Fundamental  Precept  in  the  Supreme  Federal  Court  11.  The Discussion  on  Military  Crimes  Committed  by  Civilians  in  the Context of the Guarantee of Law and Order Performed by Brazilian Armed Forces 12. Increasing the Competence of the Military Justice 13. Final Considerations 14. Bibliography.ABSTRACT:  Brazilian  Federal  Military  Justice  has  received  criticism, especially  with  regard  to  the  jurisdiction  to  try  civilians  in  peacetime.  However, this judgment protects the interests of the military and rests on the most current positivity. There  is  no  incompatibility  between  the  Constitution  and  the  rule established  by  Article  9  of  the  Military  Criminal  Code.  The  competence  therein derives from the legislature's intention that used the original ratione legis and also the ratione personae criteria to fix it. On  the  other  hand,  the  doctrine  and  the  Supreme  Court  understand that the protection of the interests of the Armed Forces are not restricted to the hierarchy  and  discipline,  recognizing  the  competence  of  military  courts  to  try civilians, also in the light of its peculiarity. It  is  important  to  emphasize  the  Brazilian  Federal  Military  Justice  is neither  a  martial  court  nor  an  administrative  tribunal,  but  a  branch  of  the Judiciary Power. Its guiding principles are in line with the human rights enshrined in the Brazilian legal system and the American Convention on Human Rights. Under  the  auspices  of  the  adversarial  system,  the  trial  of  civilians  by federal military court does not violate the guarantee of due process, since every process started respects the superior constitutional principles. KEYWORDS:Brazilian Military Justice. Military Justice. Civilians. Prosecute Civilians. Civilianization. 
46CARLOS AUGUSTO DE SOUSA1COMPETENCY  OF  MILITARY  JUSTICE  TO  TRIAL  CIVILIANS –  HISTORIC PRECEDENTS The  trial  of  civilians  by  the  Military  Justice  in  Brazil  started  with  the Brazilian Constitution of 1934, the year that specialized Justice became part of the Judicial Power. The Constitution of 1934 broke with the paradigm of trials especially provided for members of a singular class called "Land and Sea Arms". Up  until  then,  the  jurisdiction  of  the  Supreme  Military  Court  and  Special Councils  was  limited  to  "the  formation  of  guilt  and  judgment"  in  cases  of military   offenses.   With   the   aforementioned   rupture,   the   criteria   for   the incidence of military jurisdiction changed from crime authorship to legal assets protection.47  Those  who  violated  the  legal  interests  protected  by  the  military law would be prosecuted and tried before the Military Justice, regardless of the condition of the supposed agent, whether military or civilian. The extended jurisdiction of judges and military courts over civilians did not  mean  an  unrestricted  performance,  but  rather  it  was  delimited  by  the country's  Constitution.  In  its  Article  84,48  the  Federal  Constitution  of  1934 postulated  that  the  military,  and  those  considered  similar  by  law,  should  have special forum on military offenses. With this constitutional norm, the Legislative Branch  reiterated  the  military  jurisdiction  over  civilians  in  military  crimes, established  by  the  first  Military  Criminal  Code  introduced  in  1934,  and preserved  by  the  current  one,  adopted  in  1969.  Today,  the  Constitution  of 1988 (in its Article 124) maintains the protection of legal assets and the absence of  an  expressed  prohibition  of  civilian  trials  by  Military  Justice  as  a  defining element  of  the Military  Justice  Jurisdiction, thus corroborating  the  reception of Art.   9   (paragraph   III)   of   the   Military   Criminal   Code   of   1969   and   the constitutionality of paragraph 7 of Article 15 of the Complementary Law no. 97 of June 9, 199949. 47"The legal good is a material or immaterial entity (data or social value) originated from the social context, individual or meta-individual ownership reputed as essential to the coexistence and the development  of  man  in  society  and,  therefore,  liable  to  legal  protection.  (...)  The  idea  of legal good is the base for legal criminal intervention". (PRADO, Luiz Regis. Criminal Legal Good and Constitution. 3rd Ed. São Paulo: The Court Journal, 2003 pp. 52/53).48BRAZIL. Brazilian  Constitution  of  1934,  Art.  84. "The  military  and  related  people  shall  have special forum on military offenses. This forum can be extended to civilians in cases expressed in law for the supression of offenses against the external security of the country, or against military institutions". 49  Complementary  Law  No.  97,  dated  9  June  1999,  Art.  15. "The  role  of  Armed  Forces  in  the national defense and the guarantee of constitutional powers, law and order, and in participation in peace operations is the responsibility of the President of the Republic, who will determine the  Minister  of  State  for  defense  operational  office  activation,  observed  the  following  form  of subordination:   (omissis)  §  7  the  role  of  the  military  in  the  cases  provided  for  in  Arts.  13,  14,  15,  16 -A,  in sections IV and V of the Art. 17, in item III of Art. 17-A, in sections VI and VII of the Art. 18, civil defense activities referred to in Art. 16 of this Complementary Law and in item XIV of Art. 23 of law no 4,737, of 15 July 1965 (Electoral Code), is considered to be military activity for the purposes of Art. 124 of the Constitution (wording by complementary law No. 136, 2010)".
BRAZILIAN FEDERAL MILITARY JUSTICE'SJURISDICTION TO PROSECUTE CIVILIANS47Taking  into  account  the  outlined  legal  framework  and  assuming  that both   the   Constituent   and   Legislative   Powers   seek   to   reflect   the   society perspectives50,it  is  possible  to  affirm  that  the  subject  of  civilian  trials  by  the Federal  Military  Justice  reflects  a  social  yearning,  which  constantly  demands updating and revision for its progress. 2THE TRIAL OF CIVILIANS BY MILITARY JUSTICES IN THE WORLD The  military  jurisdiction  is  manifested  in  different  ways  whenever  we compare  its modus  operandi  in  various  countries  around  the  world.  In  Brazil, the   military   jurisdiction   is   integrated   into   the   Judiciary,   configuring   a constitutional  exception  to  the  single  jurisdiction.  However,  it  is  a  common concern  to  all  countries  with  Armed  Forces  the  need  for  developing  special legal treatment in relation to issues concerning the military to be able to protect their specificities and, therefore, promote national sovereignty. One  of  the  dimensions  of  the  identified  plurality  has  to  do  with  each nation's political choice to submit civilians to military jurisdiction in peacetime. There  are  countries  in  which  civilians  are  not  usually  subject  to  trial  by  a military court. This is the case of Argentina51,Bulgaria52,Colombia53,Denmark54, England   and   Wales55,Germany56,   Greece57,   Italy58,Mexico59,Norway60,Paraguay61, Portugal62, Sweden63, and Uruguay64. In relation to the United States of America, it is worth remembering the case of "Ex Parte Milligan", in which Lambdin Milligan and four other civilians, in Indiana, were sentenced to die for the crime of treason, by a military court, in  the  course  of  the  American  Civil  War.  That  decision  was  modified  by  the Supreme Court in 1866, under the plea to be inadmissible the trial of a civilian by military courts when in full and regular functioning of the judicial bodies of 50 BRAZIL. PRADO, 2003, ibid., p. 96. 51 ARGENTINA. Federal Law nº 26.394/2008.52 Specialised Courts -  Bulgaria. European Justice Accessed in: 4 October 2016.53 COLOMBIA. Constitution of 1991, Art. 213.54 BRAZIL. FREITAS. Ricardo de Brito A. P. The Military Penal System in USA. In Scientific Bulletinn.  1  of  Higher  School  of  Public  Ministry  of  Union -   October/December  2001 –  Available  in: . Accessed in: 4 October 2016.55 Specialised Courts - England and Wales. European Justice . Accessed in: 4 October 2016. 56 BRAZIL. FREITAS, ibid. Accessed in: October 2016.57  Specialised  Courts -  Greece.  European  Justice  . Accessed in: 4 October 2016.58 ITALY. Constitution of 1947, Art. 103.59 MEXICO. Constitution of 1917, Art. 13.60 BRAZIL. FREITAS, ibid. Accessed in: 4 October 2016.61 PARAGUAY. Constitution of 1992, Art. 174.62 PORTUGAL. Constitution of 1976, Art. 213, Fourth Constitutional Revision of 1997.63 BRAZIL. FREITAS, ibid. Accessed in: 4 October 2016.64 URUGUAY. Constitution of 1967, Art. 253. Law 18.650/2010, Arts. 27 and 28.
48CARLOS AUGUSTO DE SOUSAOrdinary  Justice.  It  was  emphasized,  on  that  occasion,  that  the  Constitution  is not suspended in times of crises or national emergency, being the supreme law, whether in war or peacetimes65. France  faces  an  interesting  dichotomous  situation.  Internally,  military and  civilians  are  tried  by  the  Ordinary  Justice.  This  nation  extinguished  its domestic  Military  Justice, which  remains  in  full  operation  regarding  the  troops in operation or deployed in foreign territories, judging the military and even the civilians   accompanying   them,   for   any   crimes,   even   those   considered   of common justice66. The Military Justice jurisdiction in Peru is an exception to the oneness of its  justice  jurisdiction.  Its  Constitution  prohibits  the  criminal  prosecution  of civilians  by  military  courts  as  a  general  rule.  However,  the  same  Constitution allows  civilians  to  answer  for  the  crimes  of  terrorism  and  treason  to  the motherland  to  be  submitted  to  this  special  jurisdiction.67In  the  same  manner, the  Spanish  Constitution68  recognizes  the  Military  Justice  jurisdiction  as  an exception  to  the  oneness  of  its  justice  jurisdiction,  restraining  it  to  the  strictly military  scope.  Chile,  in  turn,  was  recently  sentenced  by  the  Inter-American Court of Human Rights69to suit its domestic legislation, and take the necessary measures, to prevent civilians from being tried by military courts. Unlike  the  cases  previously  mentioned,  there  are  nations  in  which civilians  are  judged  by  their  military  courts.  Cyprus70,  a  member  state  of  the European  Union,  is  an  example.  Civilians  in  this  country  are  tried  when  they violate  provisions  of  the  Military  Criminal  Code,  before  a  military  court, composed  of  a  presiding  judge,  from  the  Republic  Judicial  Service,  and  two Army  officers.  Similarly,  a  civilian  can  be  brought  to  the  military  criminal jurisdiction in Venezuela.71 The Organic Code of Military Justice defines which crimes  are  to  be  judged  by  the  Military  Justice,  being  accepted,  in  its  current wording, the processing and trial of civilians. Despite the strong trend in a global context to exclude civilians from the military jurisdiction, it is relevant to highlight that the Brazilian  Federal Military Justice holds the best features of the systems analyzed herein. It is a permanent 65  BRAZIL.  Federal  Supreme  Court.  HC  106.171/AM.  On  behalf  of:  Joelson  Jose  Bentes  de Oliveira.  Minister  Celso  de  Mello,  1  March  2011.  Available  in  . Accessed in: 4 October 2016.66  BRAZIL.  NEVES,  Cícero  Robson  Coimbra. Military  Criminal  Law  Manual.  4th  Ed. -  São  Paulo: Saraiva, 2014. p. 46.67 PERU. Constitution of 1993, Art. 139, Item 1, and Art. 173.68  Ordinary  Courts -    Spain.  European  Justice  . Accessed in: 4 October 2016.69  Inter-American  Court  of  Human  Rights.  Case  of  Palamara-Iribarne  v.  Chile.  Judgment  of November  22,  2005  (Merits,  Reparations,  and  Costs)  . Accessed in: 4 October 2016.70  Ordinary  Courts -   Cyprus.  European  Justice  . Accessed in: 4 October 2016. 71 VENEZUELA. Federal Constitution of 1999, Art. 261.
BRAZILIAN FEDERAL MILITARY JUSTICE'SJURISDICTION TO PROSECUTE CIVILIANS49institution focused on the legal dictates of ample defense, and all constitutional principles,  without  neglecting  the  protection  of  the  rights  of  society  and defendants,   providing   the   necessary   balance   for   achieving   the   purposes pursued by the Federal Constitution. Even  dealing  with  laws  to  some  extent  in  need  of  update,  the  Federal Military  Justice  fulfills  its  great  purpose  of  serving  as  tool  for  maintaining  the Armed  Forces  foundations  and  contributing  for  social  peace.  Therefore,  the ability   of   this   specialized   Justice   lies   in   performing   its   assigned   mission effectively, judging impartially both the militaries and civilians. 3THE BRAZILIAN FEDERAL MILITARY JUSTICE The  Military  Justice  is  the  oldest  among  all  Brazilian  courts,  and  along with the Labor Court and the Electoral Court, it is part of the specialized branch in the Brazilian Judiciary, as illustrated by Figure 1. The Brazilian Military Justice is organized in the form of escabinato, i.e. the mix of court and military judges, both in the trial and circuit courts. In  trial  courts,  there  are  Justice  Councils  comprised  of  five  (5)  judges, nominated as follows: - One (1) court judge, civilian, with legal training and named by specific public contest nationwide; and -  Four  (4)  military  judges,  Armed  Force  officers,  not  necessarily  with legal training. The Superior Military Court comprises the Circuit Courts and the higher instance of Military Justice, which is composed of 15 (fifteen) Justices, according to the following precedence: - Ten (10) active duty general officers of the last rank: four (4) from the Army, three (3) from the Navy and three (3) from the Air Force; and - Five (5) civilian magistrates, being: three (3) from law practice, one (1) from  the  career  of  military  courts  and  one  (1)  from  the  military  public prosecutors. Justices of military origin remain on active duty, in a special framework, and  wear  uniform.  However,  they  are  not  subordinate  to  the  commands  of their Forces or the Executive. After their appointment to the post of Justice, they become  part  of  the  Judiciary,  with  the  prerogatives  and  duties  of  judges, therefore  acting with independence  and  impartiality. They  cease to have  their conduct  ruled  by  the  Military  Statute  and  follow  the  precepts  of  the  Judiciary Law, similarly to other judges in the country. The Chief Justice of the Superior Military Judiciary Law, similarly to other judges in the country. The Chief Justice of  the  Superior  Military  Court  is  performed  by  any  Justice,  through  plenary election for a term of two (2) years. 
50CARLOS AUGUSTO DE SOUSAFigure 1 -Judicial Power in BrazilThe  Military  Justice  consists  of  civilians  and  military  judges  in  the  first instance, aiming at the best justice practices in the circumstances of each case. The decision of each judge is always independent taken into public hearing. In the second instance of the Military Justice, all justices are endowed with all the guarantees of law, making their own decisions in a public hearing, which may be subject for review by the Supreme Federal Court.4THE   REPRESENTATION   OF   SOCIETY   AND   THE   DEFENDANT   IN MILITARY JUSTICE In  cases  handled  in  Brazilian  Military  Justice  in  trial  and  circuit  courts, there is a member of the Military Prosecution and a Public Defender or Lawyer. The  military  prosecutor  has  the  constitutional  and  legal  role  to  promote  a prosecution in the interests of society. It is a civil career that is not subordinate to any of the powers of the Republic, whose positions are provided by alumni in law approved in tenders and contests. The  public  defender  provides  defense  for  the  defendant  with  no financial conditions to hire a private counsel. The post of public defender also occurs through approval in national contest, in the same lines of the contest for the  Military  Prosecution  Office.  Both  the  lawyer  and  the  public  defender  act with functional independence and without any relations to the Armed Forces515BRAZILIAN  MILITARY  JUSTICE  PROCEDURE  FOR  THE  INVESTIGATION AND PROSECUTION OF A MILITARY CRIME The  investigation  phase  of  the  military  crime  is  performed  by  the military judicial police and it is the duty of the military commander of the area where the crime occurred. This attribution is generally delegated to an officer, who  takes  on  the  role  of  military  police  investigation.  After  completing  the investigation phase, the case is sent to the auditing judge of the military judicial circumscription  of  the  crime  scene.  The  auditing  judge  assesses  the  case  and returns  it  to  the  military  public  prosecution's  representative,  which  uses  the military police investigation for pursuing military criminal lawsuit. The  criminal  procedure  is,  as  a  rule,  unconditioned,  promoted  by public    denunciation    of    the    military    prosecution    office,    without    any manifestation  of  the  will  of  the  victim  or  any  person.  Such  a  right  arises  from the   determination   provided   in   Article   129,   paragraph   I,   of   the   Federal Constitution,  according  to  which  the  institutional  function  of  the   public prosecutor is "promoting public criminal action privately", and it is re-stated in Art. 29 of the Military Criminal Code Procedure: "the criminal action is public and can only be promoted by the military prosecution office".Criminal  proceedings  in  Military  Justice  are  promoted  based  on  the military police investigation. However, in some cases, the notitia criminis can be brought  to  the  attention  of  the  prosecutor,  as  stated  in  Art.  33  of  the  Military Criminal  Code  Procedure.72  After  receiving  the  complaint,  the  defendant  is notified  and  the  military  prosecution  begins,  which  may  follow  the  ordinary procedure  (for  most  crimes)  or  the  special  procedure  (for  the  crimes  of insubmission and desertion). The  ordinary  procedure  begins  with  the  receipt  of  the  complaint  by auditing  judge,  who  in  this  first  moment  acts  individually,  assessing  the admissibility of the criminal lawsuit. Upon receipt of the complaint, there is the draw  of  the  officers  who will  be  part  of  the  Special  Council or the  Permanent Council of Justice, which shall be the judging panel of the lawsuit. The sentence in  criminal  proceedings  of  first  instance  is  made  by  the  Council  of  Justice, drafted by the auditing judge and the results proclaimed by the chief justice of the Council of Military Justice (see Figure 2). As  previously  mentioned,  the  Brazilian  Military  Justice  deals  with military crimes, regardless of whether the accused is military or civilian. In this context, it is interesting to notice the peculiarities of two types of Law: - specifically military crimes are those which could be perpetrated only by the military since they consist in the violation of specific duties, typical of the military. Those would be crimes of the military profession; and 72 BRAZIL. The Military Criminal Code Procedure, Art. 33. Any person, in the exercise of the right of  representation  may  lead  to  the  initiative  of  the  public  prosecution  office,  providing informationabout  fact  that  constitutes  military  crime  and  its  authorship,  and  presenting  the  elements  of conviction. 
52CARLOS AUGUSTO DE SOUSAFigure 2 –Councils of Justice-  non-specifically  military  crimes  are  those  common  crimes  whose perpetration  is  possible  by  any  citizen  (civilian  or  military),  but  that  the  law considers  as  military  crimes.  The  exception  is  the  crime  of  refractoriness73, because it can only be perpetrated by a civilian. 6THE BRAZILIAN MILITARY CRIMINAL CODE AND THE MILITARY CRIME DEFINITION The only Brazilian law that defines the military crimes is Decree-Law no. 1,001, of October 21, 1969 - Military Criminal Code. It is considered a military crime  any  crime  expressed  in  this  Code.  For  quite  some  time,  there  was  the understanding that the Federal Constitution of 1988 comprehended the Military Criminal  Code  of  1969.  However,  there  are  some  conflicting  understandings, which  foster  the  debate  about  possible  changes  in  the  infra-constitutional legislation. The  definition  of  military  crime  is  stated  in  Articles  9  and  10  of  the Military  Criminal  Code.74  It  presents  a  list  of  situations  in  which,  in  war  and 73 BRAZIL. Military Criminal Code, Art. 183 (Refractoriness) -  In case that conscripted not attends compulsory  enlistment,  not  presenting  for  incorporation  within  the  deadline  that  has  been marked,  or  not  presenting  himself,  leaves  military  service  compulsory  enlistment  before the official act of incorporation. Sentence - imprisonment, from three months to one year.74 BRAZIL. Military Criminal Code, Art. 9. The Military Crimes in peacetime are: I -  The crimes of this  Code,  whenever  defined  differently  than  ordinary  criminal  law  or  not  described  in  it, whatever the agent, unless in case of special provision; (...) III - The crimes committed byservice  members,  reserve  or  retired,  or  by  civilian,  against  military  institutions,  considering  as such not only included in item (I) or (II), in the following cases:  a) against the assets under military 
BRAZILIAN FEDERAL MILITARY JUSTICE'SJURISDICTION TO PROSECUTE CIVILIANS53peacetime, certain actions  must  be  considered  as military  in nature.  Thus,  the Military  Criminal  Code  strengthens  the  tendency  to  determine  the  jurisdiction of Military Justice due to matter. 7THE  MISSION  OF  THE  ARMED  FORCES  IN  BRAZIL  AND  THE  ROLE  OF MILITARY JUSTICE Article 142 of the Brazilian Constitution75 provides for the mission of the Brazilian  Armed  Forces:  the  defense  of  sovereignty  and  internal  order.  The Military Justice aims to protect the Armed Forces' legal assets. The activities of the Military Justice are, thus, directly related to the maintenance of the Armed Forces and government power. The  importance  of  the  Military  Justice  is  clear:  the  protection  of  legal goods affecting the maintenance of the Armed Forces, based on hierarchy and discipline.  As  a  result,  its  jurisdiction  cannot  be  limited  to  the  trial  of  service members.   Any   person   who   violates   those   legal   assets   involved   in   the preservation  of  military  activities  can  be  tried  by  the  Brazilian  Military  Justice. Such  a  legal  framework  is  applied  anywhere,  including  operations  abroad, whether in war or peacetime. The  Brazilian  Military  Justice  does  not  act  as  a  martial  court,  and  as mentioned before, it is not linked to the Armed Forces or the Executive Branch. As  part  of  the  Judiciary,  it  acts  independently  and  their  judgments  are  made with  faithful  observance  of  the  rights  and  guarantees  of  the  defendants, respecting the due process, the ample defense and contradictory. The  Brazilian  Military  Justice  is  a  swift  and  effective  judicial  office, which favors freedom and conceives the prison as the ultima ratio. The result of a   democratic   rule   of   law,   it   performs   accurate   jurisdiction   within   its constitutional  limits  in  perfect  harmony  with the  legislation  that  represents  the interests  of  Brazilian  society.  It  also  safeguards  the  interests  of  the  citizens,  to the extent that it repudiates and punishes any excesses of military authorities. administration,  or  against  the  military  administrat ive  order;  b)  against  any  location  under military administration, against military activity or similar situation, or against military or official of the Armed Force or Military Justice, in the exercise of inherent function to his office;  c) against military in formation, or during the period of readiness, vigilance, observation, exploration, exercise, camping, cantonment or maneuvers; and  d) even in case it occurs off locations  subjected to military administration, against service members in function of mi litary nature or  judicial,  when  legally  requested  for  that  purpose,  or  in  obedience  to  superior  legal  determination. 75  BRAZIL.  Brazilian Constitution of  1988,  Art.  142.  The  Armed Forces,  comprised  of  the  Navy, the Army and the Air Force, are permanent and regular national institutions, organized on the basis of hierarchy and discipline, under the supreme authority of the President of the Republic, and  are  intended  for  the  defense  of  the  Country,  for  the  guarantee  of  the  constitutionalpowers, and, on the initiative of any of these, of law and order.
54CARLOS AUGUSTO DE SOUSA8THE TRIAL OF CIVILIANS BY MILITARY JUSTICE Crime  and  violence  plaguing  large  urban  centers  led  the  Brazilian Government  to  enact  complementary  law  that  enable  the  Armed  Forces,  in given situations, to undertake activities of public security that are typical of the police.  The  maintenance  of  internal  order  is,  thus,  a  secondary  constitutional mission  of  the  Armed  Forces.  Not  surprisingly,  a  growing  involvement  of  the militaries  in matters  of  internal  security  has  led to a noticeable  increase  in the number of civilians involved in the practice of military crimes. In  this  context,  some  experts,  mainly  in  academia,  have  called  for  a removal of the Military Justice's jurisdiction for the trial of civilians, even if there is strict observance of the rights and guarantees. One of their main arguments is that the Military Criminal Code is much more severe than the common criminal law.  In  the  current  days,  it  is  not  uncommon  to  face  crimes  committed  by civilians,  such  as  contempt,  drugs,  larceny,  misappropriation,  receiving  stolen property  and  stellionate,  which  have  a  milder  treatment  in  the  common legislation,  such  as  the  criminal  transaction,  the  conditional  suspension  of proceedings and the adoption of alternative sentences, which are not present in the military legislation.  Two  other  arguments  give  support  for  the  calls  to  remove  the  Military Justice's jurisdiction over civilians. On the one hand, civilians are not subject to the   military   hierarchy   and   discipline.   As   a   result,   they   should   not   be subordinated  to  the  same  legal  treatment  given  to  the  military.  On  the  other hand,  the  trial  of  civilians  by  the  Military  Justice  is  not  so  common  in peacetime. Thus, Brazil should follow global trends. 9THE NEW PROPOSAL PRESENTED BY THE MILITARY JUSTICE In  the  current  system,  all  lawsuits  subjected  to  Military  Justice  are judged   by   the escabinato   according   to   the   Brazilian   Military   Judicial Organization Law (Act No. 8,457/1992). However, encouraged by the criticism in relation to the jurisdiction of Military Justice over civilians, the Parliament is analyzing  a  Bill  originated  in  the  Superior  Military  Court  that  transfers  to  the Auditing  Judge  of  trial  courts  (civil  judge)  the  competence  to  trial  individually the civilian accused of a military crime. Some  Justices  of  the  Superior  Military  Court,  in  anticipation  of  the legislative  change,  have  already  positioned  themselves  in  order  to  give  to  the Military   Judicial   Organization   Law   an   interpretation   according   to   the Constitution to grant the civil judge the jurisdiction conferred by the mentioned Bill. Yet, the theme continues to be under debate. This Bill also states that the judge takes on the role of chief justice of the Justice Councils in trial courts. In the assessment of the Superior Military Court, the  proposal  is  in  line  with  the  constitutional  principles  ruling  the  military 
BRAZILIAN FEDERAL MILITARY JUSTICE'SJURISDICTION TO PROSECUTE CIVILIANS55activities,  without  losing  the  preservation  of  fundamental  rights,  therefore representing  the  starting  point  of  modernization  of  military  legislation  and  its quest for full adaptation to the postulates of the democratic government based on the rule of law. 10THE   CLAIM   OF   BREACH   OF   FUNDAMENTAL   PRECEPT   IN   THE SUPREME FEDERAL COURT Currently, there are several pending lawsuits under the Brazilian Federal Supreme Court questioning the competence of Military Justice to trial civilians. In the context of these discussions, the Attorney General's Office proposed a Complaint  of  Breach  of  Fundamental  Precept,  which  discusses  the  exact competence  of  Military  Justice  to  judge  civilians  in  peacetime.  He  argues  that there  is  a  contradiction  in  the  legal  system  in  subjecting  civilians  to  the  same treatment  as  the  military,  subjected  to  the  rigors  of  hierarchy  and  discipline, basic  principles  of  the  Armed  Forces,  and  concluding  that  the  natural  judge appropriate  for  their  judgment  would  not  be  the  Military  Court  but  the common justice. In  view  of  the  importance  of  the  constitutional  issue,  associations representing  civil  and  military  offices  are  now  being  accepted  on  condition  of amicus  curiae,  so  the  Constitutional  Court  can  promote  a  better  judgment supported by an amplified dialectic of the discussion. This lawsuit is at the table for  discussion  in  the  Plenary  of  the  Supreme  Federal  Court  and  it  may  be decided at any time. 11THE DISCUSSION ON MILITARY CRIMES COMMITTED BY CIVILIANS IN THE CONTEXT OF THE GUARANTEE OF LAW AND ORDER PERFORMED BY BRAZILIAN ARMED FORCES The  Military  Justice's  jurisdiction  over civilians  remains  an  open ended-question.  An  example  of  this  highly  debated  issue  is  a  case  that  is currently  in  discussion  in  the  Supreme  Federal  Court.  Through  an habeas corpus, a public defender questioned the competence of the Military Justice to trial  a civilian  denounced  by  crimes  of  violent  resistance  and  assault, allegedly committed  against  Brazilian  Army  officers  who  worked  in  the  process  of pacification in the slums, in Rio de Janeiro.  In a first assessment of the case, the habeas corpus was granted by the Chief  Justice  who  determined  the  cancellation  of  the  entire  process,  with  the consignment  of  the  files  to  the  common  justice.  In  his  understanding,  there  is no  need  to  talk  about  military  crime  whenever  someone  is  arrested  for confronting  the  military  acting  in  replacement  or  complement  to  the  police activities. Another Justice in the Supreme Federal Court requested to analyze the files  and  manifested  a  contrary  interpretation.  He  considered  the  factual situation  as  exceptional  and  allowed  for  the  submission  of  civilians  to  the 
56CARLOS AUGUSTO DE SOUSAMilitary  Justice  with  one  caveat.  According  to  this  Justice,  the  current  system based  on  permanent  councils  lacked  independence  and  impartiality,  because they  were  formed  partly  by  service  members  acting  temporarily  as  judges.  He emphasized: "The military judge member of the Permanent Council of Justice is not  protected  by  tenure  and  remains  subject  to  constant  command  of  his superiors.   The   independent   and   impartial   jurisdiction   may   be   clearly committed".  As  a  result,  he  proposed  an  interpretation  of  the  Law  of Organization  of  Military  Justice  according  to  the  Federal  Constitution  so  the civilian  could  be  judged  by  the  Auditing  Judge  and  no  longer  by  the  Justice Councils as a whole.  After   these   events,   the   Rapporteur   Justice   suggested   that   the aforementioned habeas  corpus  should  be  trialed  by  all  of  the  members  of  the Supreme  Court,  which  was  approved  unanimously;  the  process,  however,  has not yet been tried. 12 INCREASING THE COMPETENCE OF THE MILITARY JUSTICE Parallel  to  all  this  discussion  related  to  the  trial  of  civilians  by  the Military  Justice,  there  is  a  Proposed  Amendment  to  the  Constitution  for expanding  the  jurisdiction  of  the  Military  Justice.  The  proposal  stems  from studies conducted in the framework of the National Council of Brazilian Justice, which produced a diagnosis of Federal and State Military Justices. In its report, published in 2014, it is recommended the expansion of the competence of this specialized  justice  in  order  to  facilitate  the  processing  and  the  trial  of  other matters related to the military administrative law, such as the entry into military service, career, promotions, disciplinary infractions and other military matters.  A  working  group  was  established  with  representatives  from  various institutions  of  the  judiciary,  including  two  Justices  of  the  Superior  Military Court,  to assess  the  question  of  the  increase  of  competence  of  Military  Justice under  various  approaches,  including  the  civil  trial.  The  works  are  in  progress, but have not yet produced any conclusive results. 13FINAL CONSIDERATIONS Civilians' trials by the  Military  Justice  has  been the target  of continuing assessment. Given its recognized importance, this theme has been prevalent in debates  observed  in  various  seminars,  conferences  and  symposia,  where  the progress  of  the  Military  Law  has  been  discussed.  Moreover,  the  concern  with the  strict  observance  of  the  principles  of  legal  process,  the  ample  right  of defense  and  the  full  development  of  the  contradictory  in judicial  activities  has evolved. In relation to the Brazilian Military Justice, unlike what is done in many other countries, there has been a full subordination of this specialized Justice to the Brazilian Judicial Power. Since 1934, the Federal Constitution and all other 
BRAZILIAN FEDERAL MILITARY JUSTICE'SJURISDICTION TO PROSECUTE CIVILIANS57related legislation have prescribed the trial of civilians who committed military crimes,   either   specifically   or   non-specifically   military   offenses.   Crimes committed  by  civilians  and  classified  as  military  receive  a  milder  treatment  in the common legislation even if they are of the same type. In  a  global  context,  two  patterns  can  be  observed.  On  the  one  hand, there  is  a strong  tendency  of  excluding civilians  from  military  jurisdictions.  On the  other  hand,  it  is  perceptible  a  growing  involvement  of  the  militaries  in matters  of  internal  security  around  the  world,  particularly  in  Brazil.  Not surprisingly,  an  increase  in  the  number  of  civilians  involved  in  the  practice  of military crimes has been observed. Most  recently,  there  are  several  pending  lawsuits  under  the  Brazilian Federal  Supreme  Court  questioning  the  competence  of  the  Military  Justice  in the  trial  of  civilians.  Regardless  of  contradictory  opinions,  it  is  true  that  the military  criminal  and  procedural  legislation  demands  changes.  Any  legislative amendment shall be guided by the maintenance of the constitutional mission of the  Armed  Forces  and  the  need  to  comply  with  the  fundamental  rights  and guarantees of law. Within the Brazilian context, the trial of civilians by the Military Justice is democratic, given that it is defined constitutionally and it meets the need for specialization.  Such  a  specialization  increases  the  quality  and  the  speed  of jurisdictional provision, since it causes the deepening and enhancement of the judges on a particular branch of law.    The issue of the trial of crimes committed by civilians by auditing judge in trial  courts, the  position  of  the  Supreme  Court  on  these  and  other sensitive topics  of  major  legal  repercussions,  will  only  be  clarified  and  defined  over the years and with advancements in discussions, either in the working group in the context of the National Justice Council or in specific cases. In conclusion, these are  the  main  ideas  that  I  hope  may  promote  a  healthy  and  promising environment for future debates on the topic and, in this sense, could contribute to the improvement of military law as a whole. Surely, we are far from exhaust this relevant subject. 14BIBLIOGRAPHY ARGENTINA. Federal Law nº 26.394/2008. BRAZIL. Complementary Law nº 97, 9 June 1999. _______. Constitution of the Federative Republic of Brazil of 1988. _______. Constitution of the United States of Brazil of 1934. 
58CARLOS AUGUSTO DE SOUSA_______. Federal Supreme Court. HC 106.171/AM. On behalf of: Joelson Jose Bentes de Oliveira. Minister Celso de Mello, 1ª/3/2011. Available in . Accessed in: 4 October 2016. _______. FREITAS. Ricardo de Brito A. P. The Military Penal System in USA. In Scientific Bulletin n. 1 of Higher School of Public Ministry of Union - October/ December 2001 - Available in: . Accessed in: 4 October 2016. _______. Military Criminal Code. Decree-Law nº 1.001, 21 October 1969. _______. Military Criminal Code Procedure. Decree-Law nº 1.002, 21 October 1969._______. NEVES, Cícero Robson Coimbra. Military Criminal Law Manual. 4th. Ed. - São Paulo: Saraiva, 2014. p. 46. _______. PRADO, Luiz Regis. Criminal Legal Good and Constitution. 3rd Ed. São Paulo: The Court Journal, 2003, pp. 52/53). COLOMBIA. Constitution of 1991. Inter-American Court of Human Rights. Case of Palamara-Iribarne v. Chile. Judgment of November 22, 2005 (Merits, Reparations, and Costs) .   Accessed in: 4 October 2016. ITALY. Constitution of 1947. MEXICO. Constitution of 1917. Ordinary Courts - Cyprus. European Justice . Accessed in:  4 October 2016. Ordinary Courts - Spain. European Justice . Accessed in: 4 October 2016.PARAGUAY. Constitution of 1992. PERU. Constitution of 1993. PORTUGAL. Constitution of 1976, Fourth Constitutional Revision of 1997. Specialised Courts - Bulgaria. European Justice . Accessed in: 4 October 2016.Specialised Courts - England and Wales. European Justice . Accessed in: 4 October 2016. 
BRAZILIAN FEDERAL MILITARY JUSTICE'SJURISDICTION TO PROSECUTE CIVILIANS59Specialised Courts - Greece. European Justice . Accessed in: 4 October 2016.URUGUAY. Constitution of 1967. Law 18.650/2010. VENEZUELA. Federal Constitution of 1999
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