Supreme Court to decide whether crimes committed by military personnel should be prosecuted by Civil Justice system
Human rights organizations say the Military Justice system in Brazil is not in a condition to meet the need to hold military personnel accountable for crimes committed against civilians
As competências da Justiça Militar em julgar civis e agentes das Forças Armadas que cometem crimes contra a vida são algumas questões em pauta no STF (Foto: Fernando Frazão/Agência Brasil)
The Supreme Court will analyze again on Friday, February 10, whether members of the Armed Forces who commit crimes against civilians when conducting public security activities should be judged by the Civil Justice system.
The discussion is within the scope of ADI Case (Direct Action of Unconstitutionality) No. 5032, filed in 2013 by the Office of the Prosecutor General. The case asks the Supreme Court to rule as unconstitutional passages of legislation (Complementary Law No. 136/2010) that extends the jurisdiction of the Military Justice system, enabling military courts to judge colleagues who commit crimes against the life of civilians.
In December 2022, the case was included in the virtual judgment schedule, but it was withdrawn after an adjournment requested by Justice Ricardo Lewandowski. Now, the case has returned to the schedule. As such, the court justices may publish their votes between February 10 and 17. So far, four votes have been cast in the judgment: three dismissing the case and one dissenting vote.
Conectas, together with the organization Torture Never Again, the Federal Public Defender’s Office and the Brazilian Criminal Sciences Institute, was admitted as an amicus curiae in the case. These human rights organizations and the Public Defender’s Office claim that in a GLO (Operation to Guarantee Law and Order), for example, there is no predetermined judicial police body and the administration of the system for investigating and prosecuting military personnel is inefficient.
The organizations that specialize in human rights and tackling institutional violence also point out that if a soldier commits the crime of torture against a civilian during an Army operation, he must be investigated and prosecuted by the Civil Justice system, in an independent case. They believe that the extension of the jurisdiction of the Military Justice system to judge these situations means that Brazil is violating its own laws and international human rights treaties.
“The Military Justice system in Brazil is not in a condition to meet the need to hold military personnel accountable for crimes committed against civilians. There is no structure for assisting the victims, nor for independent investigation, and its committees are mainly formed by military personnel who, without any legal training, ensure military discipline and hierarchy, which reinforces its limited legitimacy to decide on functional crimes [against the public administration] and not on conduct and crimes committed against civilians, such as abuse of authority, torture and murder, among others,” said Gabriel Sampaio, director of Advocacy and Litigation at Conectas. At least six cases pending in the Supreme Court ask for the establishment of constitutional limits on the Brazilian military jurisdiction.
Regulation in Bahia
In the state of Bahia, for example, the Supreme Court’s prevailing position was used to issue a Regulatory Instruction (no. 01/2019) on the investigation of willful crimes against life committed by government agents against civilians. This regulation “makes it difficult to investigate, identify and prosecute intentional crimes against the life of civilians committed by military police,” said Wagner Moreira, coordinator of the Popular Forum for Public Security of the Northeast.
The clauses of this regulation restrict the investigative responsibilities of the Civil Police, establishing that, in cases of homicides or injuries caused by military police officers against civilians, investigations by the Civil Police must be requested by the Public Prosecutor’s Office, the Public Security Secretary or the Civil Police Chief. As such, there are restrictions on the investigation of deaths of civilians caused by military police officers, contrary to constitutional norms. The state of Bahia has the 5th highest rate of police lethality in the country, according to the Annual Report on Brazilian Public Security from 2022.