STF: Judgment on scope of Military Justice is suspended – 02/16/2023 – Power

Justice Ricardo Lewandowski, of the STF (Supreme Federal Court), sent the action that deals with restrictions by the Military Justice on crimes committed by members of the Armed Forces for judgment in the physical plenary of the court.

The analysis took place since Monday (13) in the virtual plenary of the court, the platform on which the members of the Supreme cast their votes, and would end this Friday (17). The score was already 5-2 so as not to diminish the powers of the Military Justice.

With the so-called “highlight request”, the trial is restarted, on a date yet to be defined by the president of the court, Minister Rosa Weber.

Ministers who have already voted can choose to maintain their positions or reformulate them, except those who retired after expressing their vote.

The highlight request is made when a minister understands that there are controversies that need to be debated, since the virtual does not admit debates. Lewandowski had requested a view (more time for analysis) in this same process.

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.

The 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”.

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.

At the time, Alexandre de Moraes followed Marco Aurélio in his positioning. “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 the minister’s vote.

Edson Fachin was the first minister to disagree. He maintained that it was 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”.

Fachin also stated that the competence of the Military Justice is restricted and limited to military crimes. “It is therefore not 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 also asked for a view of the action and returned it, at the end of last year, in a virtual plenary session. He voted with Marco Aurélio and Moraes.

After Lewandowski’s new request for review, the action was again judged in plenary this Monday, and the minister voted with Fachin.

“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”, said the minister when voting.

On Tuesday afternoon (14), Fux voted with Marco Aurélio, Barroso and Moraes. This Wednesday (15), Dias Toffoli also accompanied the retired minister. This left the score at 5-2, in favor of not restricting the powers of the Military Justice, reaffirming the responsibility of this branch of the Judiciary to judge crimes that occurred during GLO operations.

Until 5:30 pm this Thursday (16), the votes of ministers Kassio Nunes Marques, Rosa Weber, Cármen Lúcia and Gilmar Mendes had not yet been published. André Mendonça, who replaced Marco Aurélio, does not vote.

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.