Military | The change of jurisdiction of intentional crimes against life…
The change of jurisdiction of intentional crimes against life for the Military Justice
Last Monday (16), Law 1391/1207, enacted by President Michel Temer, entered into force. This is a draft Complementary Law proposed in the Chamber of Deputies in 2016 and approved by the National Congress.
In short, the new law extends the jurisdiction of the Military Justice of the Union, establishing a privileged forum for military personnel who commit intentional crimes against the lives of civilians during the exercise of their duties.
Until the advent of the said law, the jurisdiction to prosecute and prosecute these crimes was common criminal justice. The text sanctioned by Temer was idealized for the period of the Olympics.
Nonetheless, the president vetoed precisely the mechanism that limited the application of the law to the events that occurred until December 31, 2016. Hence, the change is considered a true extension of the jurisdiction of the Military Justice.
According to the veto message, the recurrent use of the Armed Forces in conflicts in public security actions would justify the existence of a permanent rule to regulate the issue.
The Federal Public Ministry has opposed the text. For the agency, the measure would be “unconstitutional” to extrapolate the competence established in the Federal Constitution, in addition to contradicting the jurisprudence of the Federal Supreme Court (STF) and positions signed by the United Nations Commission on Human Rights, which determine the attribution of the Military Justice only to prosecute and prosecute cases involving offense to properly military institutions.
But, finally, what is the problem of bringing to the Military Justice the intentional crimes committed by its jurisdictions? If the facts will be prosecuted and tried through due process, with the right to ample defense and contradictory, what is wrong?
Moreover, starting from the premise that the soldier injured or killed in the work, would not it be faced with the presumption of an act destined for the greater good of public security?
Good. The latter would be the most serious of assertions, which obliges me to answer it at once: no. It is not presumed that the criminal, at least in theory, act of the military would represent a kind of “cost-benefit” to society, which would validate its institutional excesses.
In the same way, questions of order arise in the prosecution of intentional crimes against the civilian life by the Military Justice itself, being one of them, and especially, the partiality of the judges, undoubtedly able to shake the procedures of due legal process.
It’s as we shall see.
Let us begin with the composition of the Military Justice: Superior Military Tribunal (STM) and the Military Courts and Judges.
The Superior Military Court is composed of fifteen ministers appointed by the President of the Republic, after approval by the Federal Senate, of which three are General Navy Officers, four among Army General Officers, and three General Aeronautical Officers, all of the active and the highest rank of the career, and five among civilians.
It is worth mentioning that two of the civil ministers will be chosen from among the auditing judges and members of the Public Ministry of the Military Justice.
Translating: Of the 15 MTS ministers, 13, somehow, are part of the military universe.
Being part of a universe, whatever it is, imprints characteristics on people. At least for me, it is quite clear that our occupations shape us. What does working within the military universe do with people?
In the UN’s view, trials by military courts of crimes committed by their peers against civilians violate human rights and do not represent a partial procedure, while they are not conducted by “judicial authorities unconnected to the hierarchy of command of the security forces themselves.”
If impartiality is not of sufficient value to you, think of the systematic of the military man who, at the behest of superior, commits murder of a suspect civilian, for example. Now consider that this suspicious civilian was just an unsuspecting passer-by. Wrong place, wrong time.
The military judged under these conditions will be prosecuted and judged with support in the natural principles of militarism, such as discipline and hierarchy, which will potentially lead to his acquittal, since, in short, he was only following orders.
As it could not be before, even before the presidential sanction, the Army was in favor of the change, arguing that the judgment of the military by the Common Justice “could bring harm to his professional career.”
The reasons for problematizing the law are innumerable, and the State, which dared to take the Democratic surname of Right, is more and more resembling some totalitarian regime, where what is convenient is discovered, neglecting the rights of the suspect in the hands of the media, and it sweeps under the carpet the means that justify – at least for some – the ends.
Of all, the notorious fact is that this change displaces the partiality of the due legal process to which these facts should be subjected, in total opposite to the rest of the world.
Change is, in the flesh, a real setback, which undermines democracy and removes the responsibility of those who for some time immemorial have been authorized by the state to choose which lives have value.