O status de militar como condição de prosseguibilidade do processo por crime de deserção

uma construção equivocada

Abstract

The crime of desertion oversees the service and the duties of military activities. Its relevance stems from the special protection that the Constitution of the Federative Republic of Brazil 1988 provides the security and homeland defense, constitutional mission of the Armed Forces. Thus, the characterization of the conduct of desertion should be the preservation of democracy and the defense of sovereignty. However, it is often the dismissal of criminal cases before the deletion supervenes the deserter, by understanding the Military Justice that the military status and condition is procedibilidade and prosseguibilidade process for desertion. It is a mistaken jurisprudential construction which compromises the protection established by the military penal legislation. The problem is aggravated by the extension of that interpretation in situations that do not involve other inability of the accused. Such understanding is true waiver of the right to punish unauthorized by law castrense, since even perfected the crime, creates a cause of exclusion and extinction of criminal liability beyond the Military Criminal Code and mitigates the protection sought by the Constitution. Moreover, such an approach tends to weaken the separation (autonomy and independence) between instances (criminal and administrative) and subtract the prosecutor assignments inherent in their constitutional duties in criminal matters, which is why lack of interpretation under the Constitution to restore the rule of law and prevent the continuation frustrated many established procedures for determining the crime of desertion.