Repeal of the art. 17 of the Code of Military Penal Process (CPPM)
The Constitution Federal discipline that to the prisoner they are insured to the attendance of the family, and of the lawyer, being him/her still allowed the right to the silence, and the identification of the responsible for his/her prison, owing the authority policeman to send copy of the prison solemnity in the act to the judiciary authority so that this analysis the legality of the prison. The judge can grant the relaxation of the measure is absent the requirements that authorize her.
Before the coming of CF/88, it was possible the prisoner's, civil or military, incommunicativeness being banned to this besides the possibility to Have to a lawyer's attendance. Nowadays, this possibility was moved away of the juridical ordenamento, to avoid the abuse, the outrage. The temporary prison is an exception, could be decreed through motivated decision, but the prisoner will be able at any moment to communicate with defender.
2. Repeal of the art. 17 of CPPM
The art. 17 of the Code of Process Military Penal discipline that, "THE person in charge of the inquiry can maintain incommunicable the accused, that it is legally prisoner, for three days in the maximum", our griffin.
The teacher Roberto Menna Barreto of Assumption, in his/her work, Penal and Procedural Right Penal Military, when commenting on the incommunicativeness foreseen in the art. 17 of CPPM, it disciplines that, the incommunicativeness imposed by the person in charge of the inquiry, in the period and condition foreseen in the art. 17 of CPPM, it will elapse of instant or of temporary prison, regularly ordained by the judiciary authority that, together with the prisoner's lawyer, of her it will take science."
It is important if it it observes that the Federal Constitution of 1988 moved away the prisoner's possibility it to be incommunicable. The art. 5.º, interruption LXIII, allows to the prisoner the lawyer's attendance, in any moment, be in the protective custody or in the temporary prison. With base in the constitutional canon, the art. 17 of CPPM under analysis were revoked tacitamente.
The citizen, civil or military, no more it can be impeded of communicating privately with his/her lawyer. The protective custody of the military can be ordained since their presents legal requirements. In being arbitrary, abusive, it can be moved away through Habeas Corpus, being the art. 142, § 2.º of the Federal Constitution, that it impedes his/her pertinence in the transgression to discipline soldierly unconstitutional. Same decreed the protective custody of the military, this won't be reduced of their constitutional rights.
The authority, civil or military, that to impede the military prisoner's contact with his/her lawyer it will be committing crime of authority abuse, and it will still be able to be subjects her/it a compensation action for moral damages due to the embarrassment that to cause the lawyer, in service to the disciplined in the art. 37, § 6.º, of the Federal Constitution.
The art. 7.º, interruption III, of the Federal Law n.º 8.906 of July 04, 1994, disciplines that, "Saint right of the lawyer: to communicate with their customers, personal and privately, even without procurement, when these if they find arrested, stopped or collected, in establishments civil or military, although considered incommunicable". it should be observed, that subsequent Law when he/she deals with the same matter revokes previous law, as teaches the doctrine and the jurisprudence of our Pretórios.
Therefore, the institute of the incommunicativeness became score not more I accept in our juridical ordenamento. The lawyer as essential professional to the administration of the justice, civil or military, is entitled of communicating privately with his/her customer, even if this contradicting the constitutional precepts is considered incommunicable. The inobservance of that prerogative subjects the authority to the crime of authority abuse, in service to the disciplined in the Federal Law 4898/65.
Note: The text was published in the Bulletin of the Brazilian Institute of Criminal Sciences.
Prohibited the reproduction in the whole or partly without mentioning the source in service the federal law that takes care of the copyrights in Brazil.
Paulo Tadeu Rodrigues Rosa
Enviado por Paulo Tadeu Rodrigues Rosa em 17/11/2007
Código do texto: T741183
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