Compatibility between the Non-Prosecution Agreement and the principles of military hierarchy and discipline

DOI: https://zenodo.org/records/19110497

Abstract

This article analyzes the compatibility of the Non-Prosecution Agreement, introduced by Law No. 13.964/2019, with the structuring principles of military hierarchy and discipline. Using a theoretical-dogmatic approach and a deductive method, a bibliographic review and documentary analysis of norms and doctrine are carried out, also articulating empirical evidence of negotiation applications in a military context. Starting from the problem “how to reconcile a negotiation instrument with an institutional ethos based on authority and exemplarity?”, the study identifies risks (symbolic erosion of authority, trivialization of hierarchy, weakening of the principle of exemplarity) and benefits (efficiency, selectivity, swift reparation of damages, reinforcement of legitimacy). This paper proposes a compatibility model anchored in three pillars: proportionality, efficiency, and pedagogical/restorative purpose, operationalized by internal criteria (“filters”)—normative, material, and pedagogical—to be observed by the Public Prosecutor's Office in offering the agreement and by the military administration in disciplinary control. It concludes that the Non-Prosecution Agreement is not essentially incompatible with Military Criminal Law, provided it is applied exceptionally, selectively, and pedagogically, with firm judicial and disciplinary control and institutional communication that preserves the symbolic function of the sanction. The contribution lies in offering a practical decision-making framework to guide the application of the Non-Prosecution Agreement in less serious and common crimes submitted to Military Justice, balancing legal modernization and preservation of the military ethos.