Crimes dolosos praticados por militares contra a vida de civis: competência para processar e julgar, à luz da lei nº 13.491, de 13 de outubro de 2017

Abstract

The jurisdiction of the military justice has always been the subject of great doctrinal and jurisprudential discussion. When performing a historical retrospective, covering different periods of our Republic, it is possible to verify significant changes of military criminal acts over the years. Among them, those brought by Law no. 9.299/1996 and by Constitutional Amendment no. 45/2004, which were responsible for the displacement of the competence to prosecute and judge intentional crime against the life of civil, military justice to the ordinary justice. The theme, already pacified for the military, remained obscure for members of the Armed Forces, generating successive conflicts of competence, considering the different interpretations on the subject. In the midst of this discussion, and because of the recurrent use of Armed Forces in public security, was recently sanctioned the Law 13.491/2017, which substantially expanded the jurisdiction of the military justice system, at the time of amending the concept of military crime. Using the logical-deductive method, from doctrinal construction, jurisprudence and normative, in addition to complete the constitutionality of the law, although reactions in the opposite direction, it was felt that the jurisdiction shall be the court of the Jury when the intentional crime against the civilian life is practiced by state military. On the other hand, when committed by federal military, provided that within the hypotheses outlined in section II of the new Article 9 of the Military Penal Code, the competence for the processing and judgment will be of Military Justice of the Union, leaving a visible difference of treatment between members of the Armed Forces and the military.