Application of the beginning of the legality in the Regulation to Discipline of the Brazilian Army - RDE Ordinance Federal no. 4.346 of August 26, 2002.

Key words - Federal Constitution, Beginning of the Legality, Regulation to Discipline, Brazilian Army, to Can Legislative, Constitutional Warranties.

Abstract - Federal The Constitution of 1988 established expressly that the person can only be arrested in the act crime, or if you goes the marries in reason of the practice of military crimes and defined military transgressions in law. It goes it forces of the constitutional text, regulate you it disciplines them they were the ordinary law and they can only be modified through originating from law the legislative power.

States of São Paulo, Minas Gerais, Pernambuco, among other, assisting to the established in the constitutional text edited new regulations through originating from law the Legislative Power, which if denominated of law " stritu sensu ".

1. Initial Considerations

The freedom is a fundamental right of the citizen Brazilian, born or naturalized, civil or military, that can only be reduced as he/she teaches the doctrine through a decision originating from judicial competent judiciary authority, the natural judge's beginning, or in case of prison in the act crime in the form of the established in the effective Codes of Penal Process and I Process Penal Military.

In the State of Right, that in Brazil comes accompanied of the democratic expression tends in view the established in the constitutional text, to the freedom it is the rule and the prison to the exception, that should be applied only in the medium and serious infractions, or in the case of crimes considered vile in attendance to the established statement in the Law Federal no. 8072/90, that it is not applied to the Military Justice of the Union, of States and of Distrito Federal.

The Federal Constitution of 1988 when enumerating in the art. 5th the rights and the individual warranties that are insured to the Brazilians and the resident foreigners in the country at first he/she didn't make distinction with relationship to the citizen's status. According to the fundamental norm nobody will lose either your goods or your freedom without the due legal process is observed, with all the current warranties of this beginning, among them, the wide defense and the contradictory.

The military, federal or state, is the responsible for the preservation of the physical integrity and of the patrimony of those administered, and of the sovereignty of the country. The execution of this mission many times it demands sacrifices, and also the observance of special rules that has as foundation the hierarchy and the discipline, that they are the essential beginnings to the existence of the Military Corporations, so much in the ambit of the Union, as in the States-members of the Federation and of Distrito Federal.

The accomplishment of special missions doesn't remove of the military citizen's status, and it doesn't authorize that your freedom is reduced without the observance of the established precepts in law. The military is entitled besides of interposing constitutional action of habeas corpus with foundation in § 2nd, of the art. 5th, of the Federal Constitution, in transgression headquarters to discipline soldierly, since the act is abusive or illegal, otherwise the constitutional medicine will be unprovided foundation, tends in view that the República Federativa of Brazil through legislative ordinance and executive ordinance underwrote the American Convention of Rights that doesn't make any restriction in that sense.

The protective custody, the temporary prison, the prison due to pronunciation in the case of the deceitful crimes against the life, it will only be able to be decreed through act of competent judiciary authority. But, in the case of the military, state or you federate, the administrative authority can decree the prison of these servers, but this act requests the completion of the established formalities in law, requirements of the administrative act.

It is important to observe, that the completion of the legal formalities turns the administrative act to discipline soldierly legitimate, perfect, producing this way all your legal effects, moving away the possibility of being invalidated by the Judiciary Power.

2. Species of military according to the constitutional text

According to Antonio Houaiss he/she understands each other for militating what it is relative to the war, to soldier and Army, relative to the armed forces (Navy, Army and Aeronautics), to your organization, to your activities. The art. 22, of the Military penal code, Ordinance-law n º 1001, October 21, 1969, it sets down that, it is considered soldierly, for effect of the application of this code, anybody that, in time of peace or of war, be incorporate to the armed forces, for in them to serve in position, graduation, or subjection to the military " discipline.

Before the coming of the Federal Constitution of 1988, he/she understood each other for militating just the members of the armed forces, and the members of the Auxiliary Forces, military police and Military fire departments, just possessed the status of militating, being subject to the established rules in the penal code, according to a lot of times it was decided by the Supreme Federal Tribunal in the exercise of the diffuse control of constitucionalidade.

The Amendments Constitutional no. 3/93 and 18/98 altered the art. 42, of the Federal Constitution of 1988, that he/she started to have the following composition, " The members of the military police and Military fire departments, organized institutions with base in the hierarchy and it disciplines, they are military of States, of Distrito Federal and of the Territories ". With base in this device, it can be affirmed that in Brazil two species exist now of military, the military ones federal that integrate to the armed forces, and the military ones state that integrate into the Auxiliary Forces.

When commenting the art. 22, of the Military penal code, Jorge César of Assis makes the following observation, " Equally, revoked this device. The concept of Militating, today is constitutional, having been foreseen in the art. 42 of the Great Letter, of 1988. Server Military Public is the gender, that presents two species ".

In this sense, with base in the precepts that were established in the constitutional text should be observed that the military ones federal they are the responsible for the preservation of the national sovereignty, while the military ones state and those that integrate the military police and the Military fire department of Distrito Federal are the responsible for the preservation of the physical and patrimonial integrity of those administered.

This way, in attendance to the beginning of the legality that is applied to the military administrative right, the military ones federal they should be governed by regulations you discipline edited by the National Congress and the military ones state they should be governed by regulations you discipline edited by the State Legislative Assemblies. That opinion is shared by Eliezer Pereira Martins, Ana Clara Victor of the Passion, Márcio Luís Chila Freyesleben, among others.

The State of São Paulo, that possesses a military police with more than a hundred thousand men, through the Law Complemental no. 893 of March 09, 2001, and the State of Minas Gerais through the Law no. 14.310 of June 19, 2002, they gave execution to the determination in the art. 5th, interruption LXI, of the Federal Constitution. The example of the mentioned States-members should be followed by other States of the Federation to avoid an inconstitucionalidade argüição as demonstrated by the doctrine with foundation in the constitutional beginnings that are applied to the species.

3. Concept and reach of the Military Transgression of Nature to Discipline

The transgression to discipline soldierly or military transgression if it distinguishes of the military crime that has for objective to protect the institutes that are important to the military administration, as to the life of the military, the patrimony of the administration, the administrative morals, once it tutors the precepts you discipline that are essential the life in the barracks. The transgression to discipline for study effect and with foundation in the Regulation to Discipline of the Navy of Brazil can be compared to a misdemeanor, because he/she refers exclusively to the hierarchy precepts and it disciplines, obligations and military duties, since these don't come to constitute a crime.

According to the Regulation to Discipline of the Navy, I Decree no. 88.545, of July 26, 1983, art 6th, " Misdemeanor to Discipline it is all action or omission contrary to the obligations or to the military duties established in the laws, in the regulations, in the norms and in the dispositions in vigor that you/they base the Military Organization, since not happening in what is capitulated by the Military penal code as crime ".

The Ordinance Federal no. 4.346, of August 26, 2002, that established the new regulation to discipline of the Brazilian Army, RDE, revoking the Ordinance Federal no. 90.608, of December 4, 1984, it defined in the art. 14 the one that one should understand for transgression to discipline. According to the mentioned norm, " Transgression to discipline it is all action practiced by the military contrary to the precepts estatuídos in the ordenamento juridical offensive pátrio to the ethics, to the duties and the military obligations, even in your elementary and simple manifestation, or, still, that affects the personal honor, the military dignity and the decency of the class ".

The reading of the established precepts in the Military Regulations evidences that the transgressions discipline they possess a generic character, what hurts the beginning of the legality, as it observes the doctrine, that is applied so much to the Penal Right as to the Right Administrative, Civil or Military, once the art. 5th, of the Federal Constitution, when establishing the rights and the citizen's fundamental warranties didn't make any differentiation among the born Brazilians or naturalized, civil or military.

It should be observed, that the new regulation to Discipline of the Army, RDE, for the first time when it is analyzed the previous legislations it established in an expressed way in the art. 6th the meaning, concept, of the expressions personal honor, military dignity and I decorate of the class, that most of the time was not defined, being to criterion of the Military Public Administration represented by your administrators. The presented care when of the elaboration of the originating from ordinance the Poder Executivo didn't move away the width of the transgression concept to discipline soldierly, whose sanctions can subject the military the a detention to discipline, prison to discipline, or even to the licensing and the exclusion to good of the discipline, as it establishes the art. 24 of the new regulation to discipline of the Brazilian Army.

4. beginning of the legality in the transgression to discipline soldierly

The norm to discipline as well as the penal norm it is subject to the beginning of the legality, part of the doctrine that doesn't share of this understanding existing, in respect to the beginnings that were established in the Letter of 1988, that has for objective to allow the exercise of the wide defense and of the contradictory, in the search of a process that has as foundation the effective application of the justice, without impeding the application of the penalties that if they do necessary to the offender, that doesn't respect the hierarchy and it disciplines. In the case of a lack to discipline serious that turns the military incompatible offender with the military life this it should be dismissed, independently of your position or graduation.

The military transgression can take to the cerceamento of the freedom, that is a very fundamental of the citizen, or even the loss of the position or of the patent. In that sense, the lacks discipline they should be previously foreseen, established, for the offender to have knowledge of the facts that can take him/it to a judgement before the military administrative authority.

The defense of the legality doesn't mean the search of the impunity or even the break of the hierarchy and of the discipline. The observance of the constitutional beginnings doesn't impede and it will never impede the military offender's punishment. All should be punished besides in an exemplary way, but in conformity with the law by the exercise of the wide defense and of the contradictory.

In the military process-crime, you guarantee them constitutional they are observed and nor for that the accused in rule are absolved. According to Octavio Augusto Simon of Souza, judge of the Military Tribunal of the State of Rio Grande do Sul, " THE index of condemnations or confirmation of condemnations in the state Military Tribunal of Rio Grande do Sul are, on average, of 80% (considered the period from 1987 to 200), although, in first degree, be not like this, especially because the Law n º 9.099/95 facilitated the accused's procedural situation at that time in that invigorated in the Military Justice for decision of the Supreme Federal " Tribunal.

Therefore, it can be affirmed that the beginning of the legality unlike intended him/it by a part of the specialized doctrine, that has if turned minority, it possesses an effective application in the transgressions you discipline military. It should be observed, that the art. 37, caput, of the Federal Constitution of 1988 established in an expressed way that the administration public, civil or military, is subject to the beginnings of the legality, impessoalidade, morality, publicity and efficiency, that it reaches the Military Institutions of the Union and also the Military Institutions of States and of Distrito Federal.

Besides, thwarting part of the doctrine that affirms that it would not be reasonable the constitutional action of habeas corpus, the military that to feel offended in your right of to go and to come since the act is indeed illegal or abusive it can propose through lawyer or not asked of habeas corpus so that your freedom is preserved in attendance to the established constitutional precept in the art. 5 º, interruption LXVIII, and with foundation in the American Convention of Human Rights.

5. Inconstitucionalidade of the New Regulation to Discipline of the Army

The art. 5th, interruption LXI, of CF, established that the military, federal or state, he/she will only be able to have your freedom reduced in the case of prison in the act or in the case of order originating from judicial competent judiciary authority, excepted the cases of military crime or transgression to discipline soldierly defined in law.

The word law should be understood as the originating from norm the Legislative Power in the exercise of your typical function, which is, the elaboration of norms destined to govern the people's behavior that you/they live in a certain territory. In the case of a Federation, the laws can be coming of the City councils, Legislative Assembly of the States-members, or of the National Congress, Camera of the Deputies and Federal Senate.

The ordinances sent by the Power Executive, federal, state or municipal, and the temporary measures, that just possess law force while they be not submitted to the appreciation of the Legislative Power, they are not laws in your technical aspect, and they cannot possess the same status of the coming norms of the legislative in the exercise of your typical one.

In Brazil, as in other countries that follow the Roman-Germanic family, the crimes can only be established through originating from law the National Congress in the exercise of your attributions. The definition of crimes is not admitted through temporary measures, or even for ordinances under penalty of inconstitucionalidade to be recognized by the Supreme Federal Tribunal. The Brazilian penal code is an ordinance-law, as well as the Military penal code, but all the alterations that happened in these diplomas in elapsing of the years were established through coming Federal Laws of the National Congress.

The transgressions discipline before 1988 they could be established through coming Ordinances of the Executive Federal or State. The regulations discipline of the armed forces and auxiliary forces were recepcionados for the Letter of 1988 as laws. In that sense, any alteration in the regulations previous to 1988 can only happen through originating from law the Legislative Power.

According to the doctrine, the inconstitucionalidade of the regulations discipline edited with foundation in ordinances it was recognized with base in the constant teachings in the text Regulation to discipline soldierly and your inconstitucionalidades ". That understanding is shared by Márcio Luís Chila Freyesleben second which, " The Regulations Discipline of the Armed forces and of the Auxiliary Forces they had, for work of the ordenamento then effective, law force and, to the they be recepcionados for the new constitutional order, they suffered the effect of the novação, for us to receive the new validity foundation. Today, the transgressions discipline they should be regulated by ordinary law (art. 5 º, LXI, CF/88) and, therefore, the Regulations Discipline they started to have nature of ordinary law, being quite correct to assert that they will only be able to be altered, modified or revoked by ordinary law, because it is this your nature ".

The regulation to discipline of the Brazilian Army concerning definition of the military transgressions with foundation in the Federal Constitution it can be considered unconstitutional, falling to the Judiciary Power the analysis of the matter through the concentrated control to be exercised by the Supreme Federal Tribunal. The transgressions discipline powder-CF/88 they cannot be defined through ordinance, in respect to the beginning of the due legal process that is applied so much to the administrative process as to the lawsuit.

6. Final Considerations

The military administrative right is subject to the established beginnings in the art. 37, caput, of the Federal Constitution. The public administrator soldierly in the exercise of your functions he/she is due ater to the established beginnings in the fundamental norm, so that the administrative act can produce all your legal effects. The completion of the established requirements in the law moves away the possibility of the administrative act to be modified by the Judiciary Power.

The Federal Constitution of 1988 established that the accused in lawsuit or administrative they possess the same warranties, that have as foundation the exercise of the wide defense and of the contradictory. The offenders should be punished in an effective way, independently of the position or graduation, besides with the loss of the goods or of the function, when necessary, but they possess the right to the due legal process.

In the State of Right, the freedom is the rule and the prison an exception, that can only be limited with foundation in the law and in the cases previously established. In the case of a transgression to discipline, the art. 5 º, interruption LXI, of CF, establishes that the military crime and the transgression to discipline they should be foreseen in law.

The expression law should be understood as being the originating from norm the Power Legislative, Federal or State, in the exercise of your typical function, so that it can produce your juridical ones and you delegate effects. It should be observed, that a second understanding exists which the Statute of the Military ones would allow that the transgressions discipline they can be defined through regulations sent by act of the Boss of the Executive Power, that is according to the constitutional text the commander-in-chief of the armed forces.

The regulation to discipline of the Army concerning definition of the military transgressions with foundation in the Federal Constitution it can be considered unconstitutional, falling to the Judiciary Power the analysis of the matter. The hierarchy and it disciplines they are essential the Military Corporations, being right that in any moment the legitimate right is questioned of punishing on the part of the Military Administration, besides with the expulsion or the offenders' dismissal, once the society not more it tolerates the impunity. Just to the military it should be insured to the loss of the goods or of the freedom by the due legal process that was established for the Federal Constitution.

It is noticed that the Navy of Brazil and the air force Brazilian diversamente of the procedure that it was adopted by the Army preferred to maintain your regulations, that they were edited through originating from ordinance the Executive Power, Presidente, but that were recepcionados in the condition of federal law for force of the new constitutional text. Eventual changes in these regulations, or in case of her to intend to edit new regulations to avoid eventual questionamentos these should be edited through originating from law the Legislative Power. In the case of the armed forces, the law should be originating from the National Congress in the form of the regulations of the house and in attendance the competence that is established in the Federal Constitution, in the part that takes care of the legislative process.

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