A (in)aplicabilidade do habeas corpus nas punições disciplinares

Abstract

This study begins approaching the many disciplinary rules of the Armed Forces and Auxiliaries Forces and searches to emphasize the prison sentences presents in each one of them as well as to describe that such acts are administrative acts and they are responsibility of the competent authority. It`s also about two of the foundations of the militaries forces, the hierarchy and the discipline. Concerning that the evolution of these institutes justify the application of the disciplinary penalties in the Armed Forces and Auxiliaries Forces. These subjects intend to present the disciplinary punishments as administrative acts, because of this condition accordind to the Constitution, they have the privilege of no judicial control. In this context, the study of the Habeas Corpus as an institute that, despite constitutionally guaranteed, is prevented in the cases of disciplinary punishments. Therefore in this present work there is the analysis of the Habeas Corpus and its characteristics, being compared with the prevention imposed by the article 5, LXVIII, of the CF/88 in the cases of disciplinary punishments. Also considering the analysis of the judicial control of the administractive acts as a way to guarantee as provided in the caput of the article 37, of CF/88. These facts will end to demonstrate that the article 142, § 2º, that prohibit the habeas corpus in the cases of the disciplinary punishments, must be interpreted in a restricted way, avoiding the analysis only of the motive and not of the judicial control that all administrative act should be submitted.