Internal competence for prosecuting and judging extravagant military crimes, a vision beyond the paradigm constructed by the Inter-American Court of Human Rights

Abstract

This article aims to promote a critical-legal analysis of the amendment promoted by Law nº 13.774/2018 in the Law of Organization of Military Justice of the Union (LOJMU), which established a significant change in the distribution of internal competence within the scope of Justice Military, regarding the processing and judgment of military crimes, with special attention being given to the understanding of the Inter-American Court of Human Rights on the matter. It is observed that, in addition to the competence of the Councils of Justice, a new judicial body was established, the Monocratic Judgment, whose competence is directed to the judgment of military crimes committed by civilians. However, in spite of this, it appears that Law n. 13.774/2018 did not clearly establish the competence for the judgment of criminal conduct not typified in the Codex Military, perhaps committed exclusively by military personnel (legislative omission). In this regard, an approach to the subject is necessary, weighing the distribution of internal competence when the occurrence of military crimes that are not provided for in the Military Penal Code (CPM), but which, as a result of the enactment of Law n. 13.491/2017, became the responsibility of the Specialized Justice, even more from the amendment promoted in LOJMU, in art. 27 and 30. Thus, the present discussion is of extreme importance insofar as reflective proposals will be outlined to conclude on the possibility, or not, in compliance with the Principle of the Natural Judge, of Armed Forces personnel (without there being in the as defendants the presence of civilians) be judged in a monocratic manner by the magistrate of the Federal Military Justice.