Reflexões sobre a (in)aplicabilidade da Lei 9.099/95 no âmbito da Justiça Militar Estadual

Abstract

This work aims at establishing theoretical reflections and criticism regarding the applicability of Law 9,099 of 95 in the State Military Justice based on a bibliographical and documentary research supported by the doctrine and jurisprudence. Article 90-A of the cited law expressly prohibits this application. However, the research shows that there is divergence of legal agreements on the subject, which ends up generating considerable controversy about the constitutionality of the legal instrument as it establishes unequal treatment to the military imposing disproportionate sanctions upon them if compared to other servers charged with similar crimes. It arised from the supposed protection of institutional bases of military forces, namely, hierarchy and discipline, whose protection offered by military criminal definitions would be incompatible with the decriminalization system promoted by the regulations of Lei dos Juizados Especiais (Law of Special Courts in Portuguese). Nonetheless, it is possible to see that the hierarchy and discipline are overrated at the expense of the dignity of the person, transforming the military condition into a reason to define, through article 90-A, the person's genuine criminal law and not the fact which is contrary to the logic of contemporary criminal policy. The discussion has become even more relevant with the expansion of the jurisdiction of military justice for the recent change in the Military Penal Code, because several other regulations typically common in criminal law will be applied in the Specialized Justice. In addressing the issue, there is a consensus on the incompatibility of article 90-A with the current moment of criminal policy oriented to the lowest incarceration and, therefore, the withdrawal of its incidence is suggested to be applied under the military justice field the law 9,099 of 95 institutions.