STF resumes judgment of action that questions the performance of the Military Justice

The justices of the Federal Supreme Court (STF) resumed the trial of a 2013 action that questions the law on the competence of the Military Justice to judge members of the Armed Forces for crimes against civilians committed in special security operations in elections or GLO (Garantia of Law and Order).

In the so-called Direct Action of Constitutionality (ADI 5032), the Attorney General’s Office states that changes made by complementary law 97/1999 expanded the competence of the Military Justice to judge their peers in special operations, unlike Military and Civil Police who are judged in common justice.

The text establishes that civil defense activities of the Armed Forces are now considered military for the purposes of judgment by the Military Justice.

The action has been on trial in the virtual plenary of the STF since last Friday (10), with four votes against the questioning, by Justices Marco Aurélio (rapporteur, already retired), Alexandre de Moraes, Luís Roberto Barroso and Luiz Fux; and two in favor, from Edson Fachin and Ricardo Lewandowski.

In voting in favor of the unconstitutionality of the law, Lewandowski stated that “the questioned norm creates a kind of hypothesis of jurisdiction by prerogative of function” (see in full). For the minister, public security is an activity constitutionally assigned to the different police forces and that the Armed Forces’ performance is only as cooperation.

“There is no mention of a crime committed in the exercise of office and because of it capable of attracting the competence of the Military Justice”, says the minister in his vote.

A view similar to that of Edson Fachin, who says he “recognises the unconstitutionality” of the legislation because of what is already expressed in the 1988 Constitution “within the scope of the competence of the Military Justice” (see in full) . “Therefore, it is 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”, he added.

Ministers consider special operations as attributions of the Armed Forces

On the other hand, Moraes, Barroso and Fux followed Marco Aurélio’s decision that the request that challenges the constitutionality of the complementary law is unfounded (see in full). “The performance of the Armed Forces in guaranteeing law and order, in patrolling border areas and in civil defense actions, even in exceptional circumstances, signals the realization of the essence of the military statute in each and every modern State: the protection, even in times of peace, of national sovereignty,” he reported.

“The attempt to equate the performance of the Armed Forces to that exercised by ordinary police institutions appears inappropriate. […] Far from proving to be continuity of police activities by other means, military action in guaranteeing peace and social order responds to different parameters, both by virtue of the specific formation and training to which members of the Armed Forces undergo and by the recognition of the purpose different than what they propose”, he added in his vote.

The trial runs until Friday (17) and the result can still be reversed with the vote of the other ministers.