STF judges to restrict scope of Military Justice – 02/14/2023 – Power

This week, the Federal Supreme Court (STF) is reviewing an action that restricts the possibility of trials of crimes committed by members of the Armed Forces in Military Justice.

The trial resumes just over a month after the anti-democratic attacks against the headquarters of the Three Powers in Brasília and amidst the debate over who should judge military personnel who have participated in these acts.

Presented in 2013 by the then Attorney General of the Republic Roberto Gurgel, the action questions the device of a law that makes the Military Justice responsible for analyzing crimes that occur in the so-called “exercise of subsidiary attributions of the Armed Forces”, such as in GLO operations ( Guarantee of Law and Order).

An example of a crime commonly cited by entities linked to human rights that are also opposed to this provision is torture. These entities exemplify that currently, if a member of the Army tortures someone in a GLO operation in a favela, he is not judged by ordinary Justice — but by Military Justice.

Although it has no direct relationship with the coup acts, the trial takes place amidst a scenario of questioning regarding investigations into the military who participated in the anti-democratic attacks encouraged by former president Jair Bolsonaro (PL) and his allies.

There are disagreements about the body that should be responsible for judging any crimes committed by the uniforms — there are different views on the subject, both among specialists, in the Federal Police and in the government.

The issue may eventually reach the Supreme Court, which would have to define whose competence it is to try these crimes.

The 2013 PGR action took some time to be judged by the STF. At the time, Gurgel wanted the analysis to be urgent, since “the Armed Forces, at least in Rio de Janeiro, are already working to fight crime, through the occupation of favelas”.

“Which means that crimes committed by the military against civilians are being submitted to military justice [Militar]with all the burden of violation of human rights that the fact implies”, said the then attorney general.

The process began to be analyzed in the plenary of the Supreme Court in 2018, with the report of Minister Marco Aurélio, who treated the matter as a “sensitive matter” and voted for the action as unfounded. That is, by maintaining the current law.

“This direct action gives rise to a far-reaching discussion, and should not be taken as a simple decision regarding the limits of competence of military justice”, says Marco Aurélio’s vote.

At the time, Alexandre de Moraes followed Marco Aurélio in his position. “In the case under trial, therefore, there was no increase in the chances of military crimes and there was no increase in the incidence of military criminal law or military criminal procedure in relation to civilians”, says Moraes’ vote.

“What happened was to clearly and exhaustively establish the activities to guarantee Law and Order, which are considered military activities,” he added.

Edson Fachin was the first minister to disagree. “It is incompatible with the republican ideal, mediated by the right to equality, the creation of jurisdictions that, without a constitutional normative basis, create distinctions between people”, said the minister in his vote.

Fachin also stated that the competence of the Military Justice is restricted and limited to military crimes. “It is not, therefore, up to the legislator to expand the scope of competence of the Military Justice to ‘activities’ or even just to the ‘status’ enjoyed by the military”.

At the time, Minister Luís Roberto Barroso asked for a review (more time for analysis) of the action and returned it, at the end of last year, in a virtual plenary, a platform on which the members of the Supreme cast their votes during a certain period of time. Barroso voted with Marco Aurélio and Moraes.

After another request for review, this time from Minister Ricardo Lewandowski, the action will be judged again in the virtual plenary until this Friday (17). Lewandowski voted with Fachin, which left the case at three votes to two.

“The questioned norm creates a kind of hypothesis of forum by prerogative of function. However, this Supreme Court has already decided that only the constitutional text can list the public agents that enjoy such privilege”, he said when voting.

Until 12:00 this Tuesday (13), the votes of Ministers Kassio Nunes Marques, Rosa Weber, Luiz Fux, Dias Toffoli, Cármen Lúcia and Gilmar Mendes were still needed. André Mendonça, who replaced Marco Aurélio, does not vote.

This week, the STF was triggered in another process that is also related to the performance of the Armed Forces.

The PSOL asked the Supreme Court for “partial nullity without reducing the text of article 142 of the Constitution”, with the aim of declaring unconstitutional “all interpretative variants that characterize the Armed Forces as a ‘Moderating Power'”.

The action is signed by a team of lawyers, including Walfrido Warde, Rafael Valim and Pedro Serrano — the latter has been supported by groups of lawyers to be nominated for the Supreme Court.

The action also wants to veto interpretations that expand the attributions of the article “beyond those established by the constitutional text, notably those that arrogate to them competences to arbitrate, through the use of their things and their persons, eventual disagreements and conflicts between State Powers “.

They also ask that interpretations that “allow the total or partial rupture of the current democratic regime” or the “establishment of an exceptional government by the Armed Forces or civilians supported by them” be not allowed.