Lack of consensus on the application of continued crime in Military Criminal Law from a constitutional viewpoint

Abstract

This article aims to investigate the application of continued crime within the scope of Military Criminal Law and the incidence of article 71 of the Common Penal Code to the detriment of articles 79 and 80 of the Military Penal Code. Thus, it seeks to understand the concept and consequences of continued crime and the doctrinal and jurisprudential divergence. For that, decisions of the Courts of Justice of the States, of the Courts of Military Justice and of the Superior Courts are investigated. The research is classified as deductive, descriptive and bibliographical. In conclusion, it was found that there is no consensus on the incidence of article 71 of the Common Penal Code to military crimes, with favorable and contrary arguments being found in the analyzed judicial decisions and in the doctrine. Nevertheless, we sought to analyze from a constitutional point of view the foundations of decisions on the subject. In this way, what can be seen is that the Military Courts tend to be more lenient, applying the rule of the Common Penal Code, which is more beneficial, as it does not adopt the material cumulative, but the exacerbation of the penalty. However, within the scope of the Courts of Justice, the Superior Court of Justice and the Federal Supreme Court, the application of articles 79 and 80 of the Military Penal Code prevails, as it is a special rule. Therefore, a more in-depth analysis of the subject by the legislator and also by the highest Court is urgent, since jurisprudential dissent gives rise to legal uncertainty.