Domestic Legal Transplants

Interchange between Common Criminal Justice and Military Criminal Justice Systems

Abstract

The object of this study is to analyze the legal transplants (transfers, irritants or translations), with the domestic bias approach: between the criminal justice system and the military penal system. The problem is circumscribed in the supposed absence of objective standards that justify the importation of institutes of common repressive legislation, substantive and procedural, to the special legislation, which, in theory, creates legal uncertainty for those who are submitted to a kind of procedural lottery in the specialized court. The concern results accrue from the observance of the jurisprudence of the Federal Military Justice, especially the one drawn up by the respective Superior Court, which sometimes accepts the institutes of the common system, based on “criminal policy”, and at other times rejects them, grounding on the “specialty”, without detailing the reasons for the inapplicability or applicability and even its impacts on the contours of the special criminal justice system. The dogmatic method will be applied, based on bibliographical and jurisprudential research. At first the concept of legal transplants will be defined and, after, some selected judgments filed by the Superior Military Court will be analyzed and compared with the concepts initially outlined. Next, we will proceed to the study of a select group of judgments that, in theory, admitted the importation of institutes, focusing on the motivation of these decisions and on the prognosis of the adoption of institutes from one system to another. Finally, conclusions will be drawn on the issues initially presented for this academic investigation