The Federal Constitution of 1988, in its art. 5, LXI, provides for four types of arrest: “No one shall be arrested except in flagrante delicto or by written and reasoned order of competent judicial authority, except in cases of military transgression or properly military crime, defined by law.” Thus, in flagrante, the arrest by judicial order, the arrest in disciplinary transgression and the arrest in crimes properly military.
However, this type of arrest for properly military crimes is apparently considered a dead letter in the Federal Constitution, especially for those operators who are unaware of the applicability of Military Law in Military Justice.
The Military Justice, a branch of public law little explored in our country, is an area of law that certainly has not received the attention of national jurists and jurists, being exploited by a few pathfinders. It is in this branch of law that the fourth possible possibility of arrest described in our Charter takes shape, with the application of a prison for military personnel who committed crimes properly military (today basically applying the arrest of the crimes of desertion, where at the time of arrest , the defendant will remain “automatically” 60 days in jail awaiting trial)
Military crimes are classified in crimes that are properly military and improperly military, where doctrinal classification simplifies in an objective way that a military crime is one that only the military can commit (desertion, for example), as well as other types of crimes such as crimes in art. 163 of the Military Penal Code – CPM (Refusal of Obedience) since the civilian would not fit such a framework, the type provided in art. 175 of CPM (Practicing violence against inferior), or the crime of art. 195 (abandonment of post), because the civilian would not be able to practice such crimes, but only the military of the active.
These military offenses permit an arrest warrant, without being in flagrante delicto, without a judicial order, but a fourth possibility of imprisonment only by the criminal type, although there is a true inapplicability of this type of arrest, since in practice only a judicial order or flagrante delicto is applied, and the mere classification of the type (proper or improper) is not enough to maintain the prison (currently the prison for desertion is a procedural prison for being properly military, but military judges often justify custody of pre-trial detention).
An improperly military crime is one that the civilian can also commit, when such conduct is foreseen in the military military order (CPM), and due to the applicability of art. 9th CPM (where in this article you will find all the description of when a crime is military or common), and even a military crime may be committed by civilians.
Yes, a civilian can also practice a military crime. When, for example, he invades a military facility and commits the offense of theft or theft of an armament, he is subject to criminal proceedings in the Military Military Court (provided that the crime is against the Armed Forces), and will be prosecuted and tried there.
In the Military Justice of the Union, the case will be heard before the Permanent Council of Justice , composed of a Judge-Auditor, a civilian, this effective member of the Judiciary, with his or her own career, and the other four judges, career of the Armed Forces, drawn on a list of the Military Garrison of the Military Region where they serve, and remain for quarterly periods for the composition of the council. To this council it is the judgment of squares and civilians or the like.
The judges of officers are also composed of the hearing judge, and four other career officers of higher rank than the accused, but the council is called the Special Council of Justice .
In the decision on merit, each member shall have the right to vote (open and in public), the first vote being decided by the Judge-Auditor, who sometimes clarifies technical matters of law. Subsequently, with the sequence of officers, from the most modern to the oldest, the declaration of his vote, without however the need to justify his decision, and may sometimes be limited to a decision of “acquittal or condemnation”.
This is a criminal procedure with its own rite, provided for in the Code of Military Criminal Procedure, with deadlines and different parts from those adopted by the CP, and above all by the principle of orality.