Unconstitutionality of the processing and judgment of properly military crimes by the monocratic judge in the Union Military Justice

Abstract

The nº Law 13.774/2018 inaugurated a monocratic competence in the Union Military Justice, according to art. 30, I-B, of the Law nº 8.457/1992. However, due to the possibility of communication of elements, this new rule attributed to the singular judge the competence to judge properly military crimes committed by military personnel grouped with a civilian agent. In properly military crimes, the injury or the threat of injury to the hierarchy and discipline generically represents greater gravity, legitimizing the special normative treatment. The escabinato is the essence of Military Justice, which could not exist without that judicial body, under the penalty of not being able to offer adequate criminal protection to the constitutional principles of hierarchy and discipline. Therefore, the judgment of properly military crimes must take place before the Council of Justice, the most qualified body to accurately assess, regarding the aforementioned principles, the context, elements and consequences of the allegedly criminal conduct. Although it is possible to consider the possibility of separating processes, given that the civilian is not reached by the particular legal and moral regime inherent in military society, the fact that this agent, deliberately and consciously, attacks the cornerstones of military organizations, using the collusion with a member of this institution and practicing the most characteristic and peculiar crimes of Military Criminal Law, might serve as a basis for his judgment to also take place before the Council of Justice, giving rise to the recognition of the partial unconstitutionality of art. 30, I-B, of Law nº 8.457/1992.