The column asked for the opinion of two notable authorities — from the Judiciary and from — on the hypothesis of maintaining the patents of some defendants. Their names have been preserved.
Two questions were proposed:
– It is up to the Military Court to review evidence of
– How do you evaluate the statement that declaring a soldier considered a hero unworthy will tarnish the uniform and have a negative effect on the troops?
Here is the assessment of a former minister of the Federal Supreme Court:
The has established jurisprudence in the sense that it can declare, or not, the unworthiness for the officer position, because the Constitution does not make the loss of post and patent an automatic effect of criminal conviction, essentially because the STM is not a mere homologating body.
The art. 142, § 3, VI, of the Constitution says that the officer “will only lose his rank and patent” if he is judged unworthy of the officership or incompatible with it by a military court; and section VII determines that the officer sentenced, in common or military justice, to a custodial sentence of more than two years, by a final and unappealable sentence, will be subjected to this trial declaring indignation/incompatibility with the officer role.
Judgment of the representation by the STM is necessary, but, according to the STM itself, it is not obliged to judge the representation as valid.
Representation due to unworthiness/incompatibility is not a criminal review, it is not a disguised appeal, nor an instrument to re-examine authorship, materiality, evidence, typification or dosimetry examined in the criminal conviction.
The STM itself has already stated that this representation due to indignity “does not lend itself to review of the conviction” nor does it allow for the removal of material covered by res judicata, serving only the moral and ethical judgment on decorum, modesty and military honor.
The STM’s decision-making margin exists, but it is narrow.
The STM can examine whether or not the facts already definitively recognized reveal a breach of dignity, decorum, ethics and trust inherent to officialdom. But it cannot say, in substance: the evidence that supports the STF’s criminal conviction does not reveal the configuration of the commission of the crime of coup d’état.
This would contravene the res judicata formed in the constitutional and criminal jurisdiction of the STF.
In the case of conviction for an attempted coup d’état, for example, the STM’s refusal to declare the officer unworthy of officialdom would be highly problematic, because the attempted constitutional rupture translates conduct that reaches precisely the ethical core of officialdom: fidelity to the Constitution, republican discipline, institutional loyalty, honor and subordination of arms to civil power. The uniform is not an ornament of personal prestige; It is a symbol of service to the constitutional order and the democratic regime.
Here is the assessment of a former attorney general of Justice:
It is clear that the STM cannot review evidence already examined by a higher court that has already confirmed the commission of a crime. Non-compliance allows a complaint to preserve the competence and authority of the STF, article 102, l, of the Constitution or possibly an extraordinary appeal, article 102, III, a, contrary to the Constitution.
Article 120 of (Law 6,880) provides for the loss of the patent in the case of conviction to a sentence of more than 2 years of restriction of freedom by a civil or military court, making it clear that the conviction of the other court cannot be re-examined.
This is a great opportunity for the STM to correct past mistakes regarding the captain, who should have lost his rank when he was a lieutenant and was convicted in the first degree in a council made up of three colonels and then acquitted by 8 to 4 in the STM, in an episode related to bombs in military units.
The unacceptable hypothesis of a refusal to give full effect to the STF’s sentencing decision is worrying. It would be an attitude of confrontation with the democratic rule of law and it is unthinkable that it could prevail.
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