{"id":34042,"date":"2021-11-03T12:35:46","date_gmt":"2021-11-03T12:35:46","guid":{"rendered":"https:\/\/conectas.org\/?post_type=litigiopt&#038;p=34042"},"modified":"2021-11-17T17:00:50","modified_gmt":"2021-11-17T17:00:50","slug":"adpf-289-jurisdiction-of-military-courts-to-judge-civilians","status":"publish","type":"litigiopt","link":"https:\/\/conectas.org\/en\/litigiopt\/adpf-289-jurisdiction-of-military-courts-to-judge-civilians\/","title":{"rendered":"ADPF 289: jurisdiction of Military Courts to judge civilians"},"content":{"rendered":"<div class=\"tts_content_wrapper_1\" ><p><span style=\"font-weight: 400;\">ADPF Case (Allegation of Violation of a Fundamental Precept) No. 289, pending in the Supreme Court, will decide whether the Military Justice system has jurisdiction to try civilians in peacetime. The case was filed in 2013 by the Office of the Prosecutor-General.&nbsp;<\/span><\/p>\n<p><span style=\"font-weight: 400;\">The competence of military courts to judge civilians was expanded during the military dictatorship (1964-1985). Before this, the justice system overseen by the Armed Forces was only permitted to prosecute non-military personnel in very specific cases, such as attacks on the external security of the country or on military institutions. Therefore, as confirmed by public security experts, these powers acquired during the period of military rule, which include cases of libel and contempt, are entirely incompatible with the Federal Constitution of 1988.&nbsp;<\/span><\/p>\n<p><span style=\"font-weight: 400;\">The organizations Conectas Human Rights, Comiss\u00e3o Arns, Coletivo Papo Reto, Institute for the Defense of the Black Population, Justi\u00e7a Global and Institute for the Defense of the Right to a Defense are participating in the case as amicus curiae. These organizations say that this issue is important and that what is at stake is the defense of fundamental rights, guaranteed by the Federal Constitution of 1988. Accordingly, they are asking the Supreme Court to disqualify Military Courts from judging civilians.&nbsp;<\/span><\/p>\n<p><span style=\"font-weight: 400;\">According to information published in July 2021 by the website SBT News, over the past 18 months, Military Courts have tried 771 civilians. Of these, 163 were convicted, 50 were acquitted and the other cases have not yet been completed.&nbsp;<\/span><\/p>\n<p><span style=\"font-weight: 400;\">In addition to ADPF 289, other cases in the Supreme Court \u2013 namely ADI 5901 and ADI 5032 \u2013 also challenge the role of Military Courts. In this context, a report released by the UN in September 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, as is often the case in Brazil.<\/span><\/p>\n<hr>\n<h2><strong>Technical information<\/strong><\/h2>\n<ul>\n<li style=\"font-weight: 400;\" aria-level=\"1\"><b>Case:&nbsp;<\/b><span style=\"font-weight: 400;\">ADPF 289<\/span><\/li>\n<\/ul>\n<ul>\n<li style=\"font-weight: 400;\" aria-level=\"1\"><b>Court:&nbsp;<\/b><span style=\"font-weight: 400;\">Supreme Court<\/span><\/li>\n<\/ul>\n<ul>\n<li style=\"font-weight: 400;\" aria-level=\"1\"><b>Status:&nbsp;<\/b><span style=\"font-weight: 400;\">Awaiting judgment<\/span><\/li>\n<\/ul>\n<ul>\n<li style=\"font-weight: 400;\" aria-level=\"1\"><b>Procedure:<\/b>\n<ul>\n<li style=\"font-weight: 400;\" aria-level=\"1\"><span style=\"font-weight: 400;\">08\/15\/2013: Initial petition<\/span><\/li>\n<li style=\"font-weight: 400;\" aria-level=\"1\"><span style=\"font-weight: 400;\">06\/14\/2019: Case included in the schedule of cases for the first time. Scheduled to be judged, initially, on October 9, 2019.<\/span><\/li>\n<li style=\"font-weight: 400;\" aria-level=\"1\"><span style=\"font-weight: 400;\">10\/08\/2019: Removed from schedule of cases.<\/span><\/li>\n<li style=\"font-weight: 400;\" aria-level=\"1\"><span style=\"font-weight: 400;\">10\/10\/2019: Granting of requests for admission as amicus curiae from various civil society organizations opposed to the expansion of the jurisdiction of the Military Justice system. Over the years, several requests have been made.<\/span><\/li>\n<li style=\"font-weight: 400;\" aria-level=\"1\"><span style=\"font-weight: 400;\">06\/30\/2021: Case included again in the schedule of cases. This time, scheduled for October 21, 2021.<\/span><\/li>\n<li style=\"font-weight: 400;\" aria-level=\"1\"><span style=\"font-weight: 400;\">10\/18\/2021: Request filed for admission as amicus curiae by Conectas, together with Comiss\u00e3o Arns, Coletivo Papo Reto, Institute for the Defense of the Black Population, Justi\u00e7a Global and Institute for the Defense of the Right to a Defense, with legal counsel from Rede Liberdade.<\/span><\/li>\n<li style=\"font-weight: 400;\" aria-level=\"1\"><span style=\"font-weight: 400;\">10\/19\/21: Filing of the briefs of these organizations arguing for the unconstitutionality of the expansion of the jurisdiction of the Military Justice system.<\/span><\/li>\n<li style=\"font-weight: 400;\" aria-level=\"1\"><span style=\"font-weight: 400;\">10\/21\/21: Case removed from the schedule of cases on October 21 and included again on October 27, 2021.<\/span><\/li>\n<li style=\"font-weight: 400;\" aria-level=\"1\"><span style=\"font-weight: 400;\">10\/26\/21: The civil society organizations that requested amicus curiae status in the case but that had not yet been granted admission asked for a postponement of the judgment and the approval of their requests for admission so they could contribute to the debate.<\/span><\/li>\n<li style=\"font-weight: 400;\" aria-level=\"1\"><span style=\"font-weight: 400;\">10\/27\/21: The requests for admission are analyzed and accepted, including the request by the Institute for the Defense of the Black Population, an organization that does not have a CNPJ Taxpayers\u2019 Registry Number \u2013 a new precedent since the ruling in the ADPF Favelas Case (635) \u2013 and the judgment is removed from the schedule of cases without a new date to be judged.<\/span><\/li>\n<\/ul>\n<\/li>\n<\/ul>\n<ul>\n<li style=\"list-style-type: none;\">&nbsp;<\/li>\n<\/ul>\n<\/div><div class=\"tts__custom-position_bottom_fixed\" ><\/div>","protected":false},"featured_media":33830,"menu_order":0,"template":"","meta":{"ngg_post_thumbnail":0},"temaltigio":[12276],"categoria_litigio":[],"class_list":["post-34042","litigiopt","type-litigiopt","status-publish","has-post-thumbnail","hentry","temaltigio-confronting-institutional-violence"],"acf":{"subtitle-pt":"Military Justice system should only judge cases relating to the functioning of the Armed Forces","links_para_referencia":[{"titulo-referencia":"Procedural timeline in the Supreme Court (ADPF-289)","arquivo_referencia":false,"link_externo":"http:\/\/portal.stf.jus.br\/processos\/detalhe.asp?incidente=4448028"}],"noticias":{"noticia1":{"ID":32702,"post_author":"26","post_date":"2021-07-16 15:24:22","post_date_gmt":"2021-07-16 15:24:22","post_content":"<span style=\"font-weight: 400;\">The first reports alluded to 80 shots, but the forensic investigation found that 257 bullets had been shot at the car containing the musician Evaldo Rosa dos Santos. Inside the vehicle, besides the musician, were his father-in-law, his wife, his 7-year-old son and a friend. Evaldo died at the scene. Eleven days after the shooting, the recyclable waste collector Luciano Macedo, who was shot while trying to help his family, also lost his life.&nbsp;<\/span>\r\n\r\n<span style=\"font-weight: 400;\">The shots were fired by Army personnel on Sunday, April 7, 2019. The soldiers were on a regular patrol of the security perimeter of the Military Base in the north side of the city of Rio de Janeiro. The crime has been pending without trial in the Military Justice system for more than two years.&nbsp;<\/span>\r\n\r\n<span style=\"font-weight: 400;\">Until 2017, complaints against military personnel were investigated by both the Military Justice and the Civilian Justice systems. In that year, however, the then president Michel Temer signed Law 13,491\/2017 that amended provisions of the Military Code that transferred to the Military Justice system alone the authority to investigate and judge members of the Armed Forces who commit willful crimes against the lives of civilians.<\/span>\r\n\r\n<span style=\"font-weight: 400;\">The Military Justice system consists of two levels: the Military Justice Councils, which are lower courts formed by four active officers and one civil judge; and the Superior Military Tribunal, formed by 15 justices, the majority of whom are active military personnel.&nbsp;<\/span>\r\n\r\n<span style=\"font-weight: 400;\">In February 2021, almost two years after the deaths of Evaldo and Luciano, the Inter-American Commission on Human Rights (IACHR) declared, in a report, that \u201cthe case reinforces the doubts about the ability of military courts to judge the conduct of their peers impartially\u201d.&nbsp;&nbsp;<\/span>\r\n<h3><b>Case in Supreme Court challenges jurisdiction of Military Justice system&nbsp;<\/b><\/h3>\r\n<span style=\"font-weight: 400;\">The circumvention of the authority of a Jury Trial to judge premeditated murder committed by military personnel during GLO (Guarantee Law and Order) operations, for example, removes from civil society an important means of controlling military activity. \u201cWithin the Military Justice system, there are no external control structures, there is no civil control, nor social control over investigative agencies,\u201d said Gabriel Sampaio, coordinator of the program to Combat Institutional Violence at Conectas. \u201cCases of abuse should be investigated by civil authorities and judged, in the case of willful crimes against life, by Jury Trial\u201d.&nbsp;&nbsp;<\/span>\r\n\r\n<span style=\"font-weight: 400;\">Moreover, \u201cthese changes introduced by Law 13,491\/2017 generate a conflict between the basic principles of justice and Brazil\u2019s obligations under international law that only authorize the limited application of military justice and only for \u2018functional crimes\u2019 [against the public administration]. There should be no different treatment for military personnel from the Armed Forces compared to police officers or even the civilian population. The crimes should be investigated and judged by civil authorities,\u201d added Sampaio.&nbsp;<\/span>\r\n\r\n<span style=\"font-weight: 400;\">In practice \u2013 in addition to violating the Federal Constitution \u2013 the law can benefit the military and create a kind of safe conduct so soldiers are not held accountable for the excesses they may commit.&nbsp; In view of this, the ADI (Direct Action of Unconstitutionality) No. 5901 filed by the PSOL (Socialism and Liberty Party) in the Supreme Court challenges this authority assigned to the Military Justice system.&nbsp;<\/span>\r\n\r\n<span style=\"font-weight: 400;\">In a request for amicus curiae in ADI Case 5901, Conectas and the Allard K. Lowenstein International Human Rights Clinic at Yale Law School said that the lack of impartiality and independence \u201cprevents access to justice and facilitates impunity in cases of human rights violations\u201d. The organizations also said that \u201cStates that do not limit military jurisdiction to crimes of a strictly military nature often tolerate or cover up human rights violations committed by the armed forces\u201d.<\/span>\r\n\r\n<span style=\"font-weight: 400;\">The experts Masha Lisitsyna, a human rights lawyer specialized in international litigation, and Eugene R. Fidell, an adjunct professor at New York University Law School and senior researcher at Yale Law School, also helped craft the document requesting amicus curiae status in the case.&nbsp;<\/span>\r\n\r\n<span style=\"font-weight: 400;\">ADI 5901 seeks to prevent Military Justice from becoming a system practically detached from society, with dynamics and rules that do not apply to the population and other civil legal institutions. Making the methods in which it operates more transparent is one way to ensure that human rights are included in the debate and respected.<\/span>","post_title":"Understand the main problems with the Military Justice system in Brazil","post_excerpt":"The first reports alluded to 80 shots, but the forensic investigation found that 257 bullets had been shot at the car containing the musician Evaldo Rosa dos Santos.","post_status":"publish","comment_status":"open","ping_status":"closed","post_password":"","post_name":"understand-the-main-problems-with-the-military-justice-system-in-brazil","to_ping":"","pinged":"","post_modified":"2021-07-20 13:06:15","post_modified_gmt":"2021-07-20 13:06:15","post_content_filtered":"","post_parent":0,"guid":"https:\/\/conectas.org\/?post_type=noticia&#038;p=32702","menu_order":190,"post_type":"noticia","post_mime_type":"","comment_count":"0","filter":"raw"},"noticia2":{"ID":33877,"post_author":"26","post_date":"2021-10-25 18:07:22","post_date_gmt":"2021-10-25 18:07:22","post_content":"<span style=\"font-weight: 400;\">The Supreme Court is scheduled to begin its judgment this Thursday, October 21, of a case that calls for the recognition of the constitutional incompetence of the Military Justice system to judge and prosecute civilians in peacetime. ADPF Case (Allegation of Violation of a Fundamental Precept) No. 289 was submitted to the Supreme Court in 2013 by the Office of the Prosecutor-General.&nbsp;<\/span>\r\n\r\n<span style=\"font-weight: 400;\">The competence of military courts to judge civilians was expanded during the military dictatorship (1964-1985). Before this, the justice system overseen by the Armed Forces was only permitted to prosecute non-military personnel in very specific cases, such as attacks on the external security of the country or on military institutions. Therefore, as confirmed by <\/span><a href=\"https:\/\/www.jota.info\/opiniao-e-analise\/artigos\/justica-militar-inconstitucionalidade-ampliacao-competencia-21102021\" target=\"_blank\" rel=\"noopener\">public security experts<\/a><span style=\"font-weight: 400;\">, these powers acquired during the period of military rule, which include cases of libel and contempt, are entirely incompatible with the Federal Constitution of 1988.&nbsp;<\/span>\r\n\r\n<span style=\"font-weight: 400;\">\u201cThe current situation does not guarantee a fair trial for people charged with crimes and it violates fundamental rights established in national and international treaties,\u201d said Gabriel Sampaio, coordinator of the program to Combat Institutional Violence at Conectas. \u201cThe Military Justice system should only judge administrative cases related to the functioning of the Armed Forces.\u201d&nbsp;<\/span>\r\n<h2><b>Read more:&nbsp;<\/b><\/h2>\r\n<ul>\r\n \t<li style=\"font-weight: 400;\" aria-level=\"1\"><a href=\"https:\/\/conectas.org\/en\/noticias\/understand-the-main-problems-with-the-military-justice-system-in-brazil\/\" target=\"_blank\" rel=\"noopener\">Understand the main problems with the Military Justice system in Brazil<\/a><\/li>\r\n \t<li style=\"font-weight: 400;\" aria-level=\"1\"><a href=\"https:\/\/conectas.org\/en\/noticias\/military-justice-must-not-investigate-cases-of-enforced-disappearances-says-un-report-on-brazil\/\" target=\"_blank\" rel=\"noopener\">Military Justice must not investigate cases of enforced disappearances, says UN report on Brazil<\/a><\/li>\r\n<\/ul>\r\n<span style=\"font-weight: 400;\">Conectas, Comiss\u00e3o Arns, Coletivo Papo Reto, Institute for the Defense of the Black Population, Justi\u00e7a Global and Institute for the Defense of the Right to a Defense have all asked to participate in the case as amicus curiae.&nbsp;In their petition, the organizations stated that \u201cthe submission of civilians to judgment by Military Courts violates the guiding principles of the Democratic Rule of Law and the Constitution, such as due legal process, as it exposes civilians to the same specific set of rules as military personnel, making the judgments more severe and preventing the defense of civilians from being remotely proportional\u201d.&nbsp;<\/span>\r\n\r\n<span style=\"font-weight: 400;\">According to information published in July 2021 by the <\/span><span style=\"font-weight: 400;\">website <a href=\"https:\/\/www.sbtnews.com.br\/noticia\/justica\/171863-nos-ultimos-18-meses-771-civis-foram-julgados-pela-justica-militar\" target=\"_blank\" rel=\"noopener\">SBT News<\/a><\/span><span style=\"font-weight: 400;\">, over the past 18 months, Military Courts have tried 771 civilians. Of these, 163 were convicted, 50 were acquitted and the other cases have not yet been completed.&nbsp;<\/span>\r\n<h2><b>Military Justice in debate&nbsp;<\/b><\/h2>\r\n<span style=\"font-weight: 400;\">In addition to ADPF 289, other cases in the Supreme Court \u2013 namely ADI 5901 and ADI 5032 \u2013 also challenge the role of Military Courts. In a request for amicus curiae in the ADI Case (Direct Action of Unconstitutionality) No. 5901, Conectas and the Allard K. Lowenstein International Human Rights Clinic at Yale Law School said that the lack of impartiality and independence \u201cprevents access to justice and facilitates impunity in cases of human rights violations\u201d. The organizations also said that \u201cStates that do not limit military jurisdiction to crimes of a strictly military nature often tolerate or cover up human rights violations committed by the armed forces\u201d.<\/span>\r\n\r\n<span style=\"font-weight: 400;\">In September, a <\/span><a href=\"https:\/\/conectas.org\/en\/noticias\/military-justice-must-not-investigate-cases-of-enforced-disappearances-says-un-report-on-brazil\/\" target=\"_blank\" rel=\"noopener\">report released by the UN<\/a><span style=\"font-weight: 400;\"> 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, as is often the case in Brazil.<\/span>","post_title":"ADPF 289: Supreme Court to decide whether the Military Justice system is competent to try civilians","post_excerpt":"The Supreme Court is scheduled to begin its judgment this Thursday, October 21, of a case that calls for the recognition of the constitutional incompetence of the Military Justice system to judge and prosecute civilians in peacetime.","post_status":"publish","comment_status":"open","ping_status":"closed","post_password":"","post_name":"adpf-289-supreme-court-to-decide-whether-the-military-justice-system-is-competent-to-try-civilians","to_ping":"","pinged":"","post_modified":"2021-10-25 12:23:30","post_modified_gmt":"2021-10-25 12:23:30","post_content_filtered":"","post_parent":0,"guid":"https:\/\/conectas.org\/?post_type=noticia&#038;p=33877","menu_order":354,"post_type":"noticia","post_mime_type":"","comment_count":"0","filter":"raw"},"noticia3":{"ID":33883,"post_author":"26","post_date":"2021-10-21 18:25:02","post_date_gmt":"2021-10-21 18:25:02","post_content":"<span style=\"font-weight: 400;\">Read the op-ed by Gabriel Sampaio, a coordinator at Conectas on Combating Institutional Violence program, Roberta Marina, an advisor to Conectas on Combating Institutional Violence program, among other collaborators from various organizations.<\/span>\r\n\r\n<span style=\"font-weight: 400;\">The text published in JOTA, addresses the incompatibility of the Democratic Rule of Law in Brazil, after the transition between the dictatorial period and democracy.<\/span>\r\n\r\n<span style=\"font-weight: 400;\">\"Brazilian society is getting closer and closer to a state of exception, that is if it isn't already in one.\"<\/span>\r\n<ul>\r\n \t<li><a href=\"https:\/\/www.jota.info\/opiniao-e-analise\/artigos\/justica-militar-inconstitucionalidade-ampliacao-competencia-21102021\" target=\"_blank\" rel=\"noopener\"><span style=\"font-weight: 400;\">Read the full article on JOTA<\/span><\/a><\/li>\r\n<\/ul>","post_title":"Article: Military Justice and the unlawful way of expanding its jurisdiction","post_excerpt":"The text published in JOTA, addresses the incompatibility of the Democratic Rule of Law in Brazil, after the transition between the dictatorial period and democracy.","post_status":"publish","comment_status":"open","ping_status":"closed","post_password":"","post_name":"article-military-justice-and-the-unlawful-way-of-expanding-its-jurisdiction","to_ping":"","pinged":"","post_modified":"2021-10-26 13:02:50","post_modified_gmt":"2021-10-26 13:02:50","post_content_filtered":"","post_parent":0,"guid":"https:\/\/conectas.org\/?post_type=noticia&#038;p=33883","menu_order":350,"post_type":"noticia","post_mime_type":"","comment_count":"0","filter":"raw"}}},"yoast":{"focuskw":"ADPF 289","title":"","metadesc":"Military Justice system should only judge cases relating to the functioning of the Armed Forces","linkdex":"53","metakeywords":"","meta-robots-noindex":"","meta-robots-nofollow":"","meta-robots-adv":"","canonical":"","redirect":"","opengraph-title":"","opengraph-description":"","opengraph-image":"","twitter-title":"","twitter-description":"","twitter-image":""},"_links":{"self":[{"href":"https:\/\/conectas.org\/en\/wp-json\/wp\/v2\/litigiopt\/34042","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/conectas.org\/en\/wp-json\/wp\/v2\/litigiopt"}],"about":[{"href":"https:\/\/conectas.org\/en\/wp-json\/wp\/v2\/types\/litigiopt"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/conectas.org\/en\/wp-json\/wp\/v2\/media\/33830"}],"wp:attachment":[{"href":"https:\/\/conectas.org\/en\/wp-json\/wp\/v2\/media?parent=34042"}],"wp:term":[{"taxonomy":"temaltigio","embeddable":true,"href":"https:\/\/conectas.org\/en\/wp-json\/wp\/v2\/temaltigio?post=34042"},{"taxonomy":"categoria_litigio","embeddable":true,"href":"https:\/\/conectas.org\/en\/wp-json\/wp\/v2\/categoria_litigio?post=34042"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}