Regulation to Discipline Soldierly and Their Unconstitutionalities

The art. 144, of CF, he/she says that, "THE public safety, to owe of the State, right and responsibility of all, it is exercised for the preservation of the public order and of the people's incolumidade and of the patrimony, through the following organs". With base in the mentioned device, it is noticed that the public safety is an essential function of the State, which should care for for their citizens' physical integrity, avoiding the occurrence of the penal infractions. Due to the importance of this activity, the State cannot privatize the safety, unlike other sections that they are transferred for the deprived initiative, and not even to put her/it in one second glides without the necessary investments for the combat to the criminality.
In service CF, the public safety is exercised by the following organs: federal police; federal traffic police; federal rail police; civil police; military police and military fire brigades. Each one of them possesses their competences delimited in the constitutional text, and the other attributions foreseen in infra-constitutional laws. Enter the organs mentioned in the art. 144, of CF, only two possess military aesthetics, the fire brigades and the military police, with graduations and positions similar to the members of the Army.
The Military police exercises activities of ostensible policing and no activities gone back to the preservation of the national security, that for force of art.142, caput, of CF, is prerogative of the Armed forces. Only in case ends, it is that the members of the Auxiliary Forces will be the disposition of the National Army, art. 144, § 6th, of CF. To give service CF, the Military police has been investing in the aprimoramento of their several organs and of their members in the search of a better service to the collectivity to be rendered.
In the search of the improvement of the human material, with the introduction of new disciplines in the courses of officials' formation and formation of squares, a lot of Corporations left the regulations discipline out of the reforms, in desatendimento CF. The regulations discipline were received by the effective Constitution, but dispositions that are in conflicts with the insured warranties to the Brazilian and resident foreigner in the country exist.
1. regulation to discipline soldierly
The military policemen and military firemen in the exercise of their constitutional activities are subject to a responsibility criminal, administrative and civil, for the damages that come to cause to the public administration (civil or military) and the physical and patrimonial integrity of those administered. When disrespecting a disposition foreseen in the regulation to discipline, the military policeman commits what is called of transgression to discipline soldierly.
The transgression to discipline soldierly it can be understood as being, all action or omission contrary to the military duty, and as such classified in the terms of the regulation. He/she stands out of the military crime that it is more serious offense to that same duty, set down second him in the military penal legislation. They are still considered, also, transgressions discipline, the actions or omissions no specified in the present article and unqualified as crimes in the military penal laws, against the National Symbols, against the honor and the military individual pudonor; against the decency of the class, against the social precepts and the norms of the morals; against the subordination beginnings, rules and orders of services, established in the laws or regulations, or prescribed by competent authority (art. 8th, of the Ordinance n.º 76.322 of September 22, 1.975).
In understanding Ana Clara Victor of the Passion, to define which would be such actions or omissions is task that could only be carried out by the own holders of such attribute, that, in the case, they are the military policemen, as a whole, and no the military administrator's person or commander. The honor concept, pudonor and decency is abstract, relative and personal: the one that an individual considers disgraceful or unbecoming, it cannot be it for the others. Like this, it is verified that the military authority doesn't at least have titularidade to fill out the type to discipline contained in the norma1.
But will it be that the norms contained in the regulations discipline of the Military police of the States members of the Federation were received by the new constitutional text, and do they meet in consonance with the determination in the precepts that treat of the rights and the citizen's fundamental warranties?
2. norms discipline and their origins
The Military police possess their roots in the ordinance sent by the then regent Priest Antônio Diogo Feijó. To that respect, José Nogueira Sampaio observes that, the Law of October 10, 1831 that was formed like this, I extend to the provinces the institution of the permanent guards, it means the basic monument of the state military police" .2 THE State of São Paulo to give service to the ordinance regencial created on December 15, 1831 for action of the Brigadier Rafael Tobias of Aguiar his/her Permanent Body of Guards, with 100 men in the infantry weapon and 30 men in the cavalry weapon. The Força Policial created in that period passed to have an entire military organization based in the structure of the National Army, with graduations and put and current responsibilities of the functions that should be developed.
Unlike the civil agents, the military policemen to the they practice an administrative lack, transgression to discipline, they can have his/her right libertatis reduced by a period of up to 30 (thirty) days, accomplishing the prison in closed regime, in existent chess in the barracks. The transgression to discipline it is classified as for his/her nature in light, average and serious, and that graduation determines the dosimetria of the administrative sanction. Now, for the least in the State of São Paulo, the military policemen in rule are not arrested in the chess, but they are collected to the barracks without they could leave to the Organization Military Policeman (OPM), under penalty of they practice military crime.
3. regulation to discipline and Federal Constitution
Before the coming of CF 1988, most of the regulations discipline were edited through ordinances sent by the boss of the Executive Power (Governors or Intervenors) nominated for the President. In the State of São Paulo, the regulation to discipline date of November 09, 1943, I Decree n.º 13.657, that it was sent by the then intervenor Fernando Costa, nominated for President Getúlio Vargas. The regulation to discipline of the Aeronautics, I Decree n.º 76.322, date of September 22, 1975.
In service to the beginning of the reception, the regulations discipline approved through ordinances they were received by the new constitutional order, as it happened with the Penal code, Code of Penal Process, Military Penal code, Code of Military Penal Process and other legal diplomas. The fact of these legal diplomas have been received doesn't mean that can suffer modifications in disagreement with foreseen him/it in CF.
When treating of the military crimes and of the transgressions you discipline, the Federal Constitution in the art. 5.º, interruption LXI, says that, "nobody will be arrested except in the act crime or for written order and based of competent judiciary authority, except for in the cases of military transgression or crime properly military, defined in law". With base in the constitutional device, it is noticed clearly that the regulations discipline can be modified only through law, in his/her technical aspect, in other words, through norm elaborated by the Legislative Power. To deny this interpretation would be the same as to deny the existence of the democratic State of Right, or to remove of the citizen the right to the vote, or the right of going, to come and to stay.
That understanding is evident when it is analyzed the modifications that happened in the Penal Law. The Penal code was put in validity through a Law, that is not a Law in the technical sense of the word, but that was received by CF 1988. But, any modification to this legal diploma can only be made through approved Federal Law by the National Congress and not for ordinance, temporary measure, delegated law or any other instrument foreseen in the constitutional text. The same beginning is applied to the Military Penal code, Code of Military Penal Process, that you/they were put in validity through Law, but as they were received can be modified only through Federal Law. To that respect it doesn't exist any doctrinaire divergence and jurisprudencial and therefore as it is explained the misunderstandings that it is happening in the area of the regulations discipline?
It can be affirmed, with foundation in the art. 5th, LXI, of CF, that the new regulation to discipline of the Military police of Goiás, State Ordinance n.º 4.717/96, is unconstitutional and therefore it should be moved away through decision of the Judiciary Power by interested person's provocation. The same is applied to the alterations introduced in the regulation to discipline of the Military police of the State of São Paulo, after October 05, 1988. Actually, all of the regulations discipline of the military police of the States members of the Federation that suffered modifications through ordinance sent by the Executive's boss after the validity of CF 1988 are unconstitutional.
In that sense, Márcio Luís Chila Freyesleben when commenting on the modifications happened in the regulation to discipline of the Military police of the State of Minas Gerais observes that, "TO THE mode of speculations, the Ordinance n.º 88.545/83, RDM, suffered alterations of some of their devices, provoked by the Ordinance n.º 1011, of December 22, 1993. With effect, after CF/88 RDM started to have force and nature of ordinary law, not being acceptable that a law comes to be modified by an ordinance. It is unconstitutional" .3
With the same understanding, we found Ana Clara Victor of the Passion second the one which, "Like this, there are been Real need and interest on the part of the military administrative authorities in applying the detention feathers and prison to discipline it is imposed to make arrangements that you/they are the same ones instituted through law, given the unquestionable unconstitutionality of all the restrictive measures of personal freedom foreseen in the Ordinance n.o 4.717/96" .4
Therefore, with foundation in the determination in the art. 5th, interruption LXI, of CF, can be affirmed that the new regulations edited through state ordinances sent by the bosses of the Executive Power and the regulations that were altered through ordinances violate the determination red-handedly in CF being unconstitutional norms that you/they should be removed of the juridical ordenamento in the form foreseen for that procedure.
1. PAIXÃO, Ana Clara Vitor da. Norma Disciplinar Genérica. Universo Jurídico Goiás, internet, julho/2000. p.2.
2 SAMPAIO, José Nogueira. Fundação da Polícia Militar do Estado de SãoPaulo. 2.a ed. São Paulo, 1981.
3 FREYESLEBEN, Mário Luís Chila. A prisão provisória no CPPM, Belo
Horizonte : Del Rey, 1997, p. 202.
4 PAIXÃO, Ana Clara Vitor da, ob. cit., p. 03.
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Paulo Tadeu Rodrigues Rosa
Enviado por Paulo Tadeu Rodrigues Rosa em 19/11/2007
Reeditado em 19/11/2007
Código do texto: T743509

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Paulo Tadeu Rodrigues Rosa
Belo Horizonte - Minas Gerais - Brasil
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Paulo Tadeu Rodrigues Rosa