BRAZILIAN FEDERAL MILITARY JUSTICE'SJURISDICTION TO PROSECUTE CIVILIANS CARLOS AUGUSTO DE SOUSAMinistro do Superior Tribunal Militar
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 https://e-justice.europa.eu/content_specialised_courts-19-bg-en.do?member=1. 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:
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
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
BRAZILIAN FEDERAL MILITARY JUSTICE'SJURISDICTION TO PROSECUTE CIVILIANS59Specialised Courts - Greece. European Justice