Controversial issues in criminal law: The conflict between the Superior Court of Justice and military law

DOI: https://zenodo.org/records/17433893

Abstract

Military law, by definition, demands heightened diligence from those entrusted with its application. The present article seeks to demonstrate the reasons for this necessity, particularly within the judicial sphere, where a broad range of appeals must be adjudicated with consistency and in strict accordance with the law. In this context, the establishment of clear and coherent criteria for jurisprudential interpretation is indispensable. The determination of jurisdiction in matters of military law—taking into account both the subject matter and the individuals involved—often presents

considerable complexity. This difficulty is particularly evident in cases adjudicated by either the Federal Military Justice or the State Military Justice systems. Compounding this challenge, the Superior Court of Justice has, on occasion, rendered precedents that are inconsistent. To illustrate these concerns, the analysis turns to a recent case in which judicial error is readily apparent: the determination of jurisdiction over the investigation of an alleged sexual offense committed by a retired officer of the Brazilian Army, who was then serving as a "Prestador de Tarefas por Tempo Certo" (Temporary Service Provider). The alleged victim was a student at a state public school who, at the time, was enrolled in the CivicMilitary Education Program under the accused’s supervision. In addition, the study revisits previously adjudicated jurisdictional conflicts and examines another pending case whose distinctive features merit careful reflection. The Brazilian military justice system is sui generis, comprising two distinct branches: the Federal Military Justice and the State Military Justice. These branches are distinguished by significant constitutional differences. In criminal matters, the Federal Military Justice possesses broad jurisdiction, processing and adjudicating military crimes as defined by law, irrespective of the perpetrator’s status—including civilians. By contrast, the criminal jurisdiction of the State Military Justice is strictly limited. While it also processes and adjudicates military crimes defined by law, its jurisdiction extends solely to offenses committed by state military personnel, expressly excluding civilians and members of the federal armed forces. In civil matters, pursuant to Constitutional Amendment No. 45/2004, only the State Military Court holds exclusive jurisdiction to process and adjudicate actions challenging military disciplinary acts. Where jurisdiction over a given case is not readily discernible, conflicts of jurisdiction— whether positive or negative—may arise. In such circumstances, the Superior Court of Justice, as the guardian of federal legislation, is called upon to resolve these conflicts, and it is expected to do so in a manner that prevents their recurrence or the creation of new conflicts.