See the 6 cases in the Supreme Court that challenge the use of the Military Justice system in Brazil

Civil society organizations and human rights experts are asking the Court to place constitutional limits on military tribunals

Rio de Janeiro - Militares seguem operando na favela da Rocinha para combater confrontos entre facções de traficantes de drogas (Fernando Frazão/Agência Brasil)

“I wasn’t at the wrong place at the wrong time, I was going about my daily life, in my car with friends and we were approached by soldiers and searched. After 15 minutes, another military patrol shot at my car,” Vitor Santiago, resident of the Maré favela and victim of neglect and violence by the military, told a hearing of the Inter-American Commission on Human Rights. During a military operation in 2015, he was shot in his car, became paraplegic, suffered a spinal cord injury and had a leg amputated.

“I spent 90 days in the hospital, had a number of surgeries and my hope was that justice would be served as soon as possible”. However, in 2018, the soldier who shot Vitor was acquitted by the Military Justice system, which, as far as he is concerned, is evidence of strong crony militarism: “It’s a soldier who commits the crime, a soldier who judges and a soldier who acquits”. 

Constitutional bounds 

According to experts in public security and combating institutional violence, the problems of the Military Justice system are related to the fact that these courts have overstepped their constitutional bounds of resolving strictly military affairs. 

In this respect, two issues stand out. The first is related to trials of civilians by military courts. This practice increased substantially during the period of the military dictatorship (1964-1985) and, even after losing its authority to prosecute crimes against national security, the trend of expanding the military judgment of civilians continued even after the Constitution of 1988, largely due to the increased role of the Armed Forces in public security activities.

The second point is that the Military Justice system circumvents the jurisdiction of jury trials and judges crimes committed by military personnel exercising functions outside the traditional role of the Armed Forces, namely their work in the area of public security, such as the so-called GLO (operations to guarantee law and order). 

As a result, abuses and crimes against the lives of civilians committed by public security agents and members of the Armed Forces are at risk of not being investigated and prosecuted transparently, creating a backdrop of impunity and rights violations, especially for the residents of favelas and urban outskirts across the country, in particular young black men, and for agricultural workers in rural areas where GLO and police operations are carried out with little or no control from society. 

“The current situation of Military Justice in Brazil does not provide civil society with legitimate means of controlling military activity,” said Gabriel Sampaio, a lawyer and coordinator of the program to Combat Institutional Violence at Conectas. He goes on to say that “the courts run by the military cannot be detached from society, with dynamics and rules that do not apply to the population and other civil legal institutions”. 

International concern

In September 2021, the UN released a report that stated that investigations into murders and disappearances committed by public security agents and military personnel should be handled by jury trials and civilian justice systems, and not by the Military Justice system. This shows that Brazil is violating basic principles of justice by allowing military personnel to judge their peers who are under investigation for committing willful crimes. 

This concern is also expressed in the book “Collateral damage: the intervention of the military in public security,” in which the journalist Natália Viana investigates the judgments of military courts and also focuses on the lives of soldiers “who end up with a rifle in hand, often thousands of kilometers from home, shooting men as young as they are”. 

“After studying these cases, I identified some patterns — the soldiers’ lack of empathy with the victims and their families, the repetitive statements from the Army always telling the same story and the shameful role of the Military Justice system in dealing with these situations,” wrote Viana, who went on to cite the French president Georges Clemenceau, who said that “Military Justice is to justice what military music is to music”. 

Below, Conectas lists six cases pending in the Supreme Court that address the role and the jurisdiction of the Military Justice system in Brazil.

ADI 5032: Crimes committed by military personnel must be prosecuted by the Civil Justice system

The ADI Case (Direct Action of Unconstitutionality) No. 5032, submitted in 2013, asks that Armed Forces personnel who commit crimes while exercising non-standard military activities, especially in the field of public security – such as GLO (Operations to Guarantee Law and Order) – must not be prosecuted by Military Justice courts but instead by the Civil Justice system. In partnership with the Military Public Prosecutor’s Office, the organization Torture Never Again, the Federal Public Defender’s Office and the Brazilian Criminal Sciences Institute, Conectas is an amicus curiae in the case.

ADPF 289: Military Justice should not judge and prosecute civilians in peacetime

Before the military dictatorship, the justice system overseen by the Armed Forces was only permitted to judge and prosecute civilians in specific cases, such as attacks on the external security of the country or on military institutions. During the period of military rule, however, the powers of the Military Justice system were expanded. “The current situation does not guarantee a fair trial for people charged with crimes and it violates fundamental rights established in national and international treaties,” said Gabriel Sampaio, coordinator of the program to Combat Institutional Violence at Conectas. “The Military Justice system should only judge administrative cases related to the functioning of the Armed Forces.” Conectas is participating in the ADPF (Allegation of Violation of a Fundamental Precept) Case No. 289 as an amicus curiae together with the organizations Comissão Arns, Coletivo Papo Reto, Institute for the Defense of the Black Population, Justiça Global and Institute for the Defense of the Right to a Defense.

ADPF 826: Persecution of the work of the press must be stopped

In the interpretation of the Supreme Court, military crimes can only exist in cases where military institutions are affected. In practice, however, the criteria implied by expressions such as “affecting military institutions” enables the illegitimate application of the Military Criminal Code and can be used to constrain the work of the press. In July 2021, given the growing normalization of the military presence in the government, the Brazilian Press Association (ABI) asked the Supreme Court to hear the matter again through ADPF 826, from the point of view of freedom of expression and the right to information. 

ADI 5901: Armed Forces officials should not judge colleagues who commit crimes against civilians

Law 13,491/2017, which expands the jurisdiction of the Military Justice system, generates a conflict between the basic principles of justice and Brazil’s obligations under international law that only authorize the limited application of Military Justice and only for ‘functional crimes’ (against the public administration). Furthermore, the law could benefit the military and create a kind of safe conduct so soldiers are not held accountable for the excesses they may commit. In view of this, ADI 5901 filed by the PSOL (Socialism and Liberty Party) challenges this authority assigned to the Military Justice system. In a request for amicus curiae, Conectas and the Allard K. Lowenstein International Human Rights Clinic at Yale Law School said that the lack of impartiality and independence “prevents access to justice and facilitates impunity in cases of human rights violations”.

ADI 5804: Crimes committed against civilians should be judged by the Civil Justice system

ADI 5804 challenges provisions of Federal Laws Nos. 13,491/2017 and 9,299/1996 that alter the Military Criminal Code and the Code of Military Criminal Procedure. According to the case, these changes violate the Federal Constitution by establishing the procedure that military police inquiries, chaired by officials from Brazilian states and the Federal District, investigate willful crimes against the life of civilians ahead of a criminal case in the Civil Justice system. 

ADI 4164: Military Justice system should not investigate willful crimes committed by military personnel 

With several points in common with the previous case, ADI 4164 is asking the Supreme Court to declare parts of Law 9,299/1996 and other Decree-Laws unconstitutional. The claim is that the provisions of these laws violate the Federal Constitution by giving the Military Justice system the task of investigating all crimes committed by military personnel, including the opening of military police inquiries for willful crimes against life that will later be judged by the Civil Justice system.