The Military Judge's competition in second grade for the trial of the cases against the discipline of actions

1. The introduction

The Judicial Power it is the guardian of the rights and the guarantees of principle of the civic one and also the responsible one to assure the her/it all the people, Brazilians and residing in foreigners the country, the right to a jurisdicional of the effective installation. The law doesn't allow any species of the discrimination that can impede the access to the Justice that is essential in the democratic State of Right for the pacification of the you the work, leaving this way the social conflicts that can house the extreme cases the violence or the rest of the social rules.

The law spending of the years continues to be one of the Man most of the important creations. The State to allow the harmonic coexistence among the several necessities of the social groups the existence of a contour of laws, with a Judicial Power properly organized and it structured. Also, it is also necessary the presence executes of the forces of security, state and federal, that you/they helps the administrative and judicial authorities in the exercise of its institutional functions.

The preservation of the public order for the force of the art. 144, the caput, of the Federal Constitution, is a private attribution of the organs of public security, police Police, Military Civilian and Military brigades of Fire, in the States-members of the Federation, Federal Police, Federal police of Traffic and Police of the Federal Bar, in the magnitude of the Union. The Civil Guard doesn't integrate the organs of security and his members cannot exercise functions of ostensible and preventive police, or the attributions of the investigation equals 1.

The organization of a Justice in all the countries that abandoned the solution of their litigations through the use of the force had for the objective to allow the preservation of the rights and fundamental guarantees of the Man, while contributing to the harmonic coexistence among the several social groups that many times possess several interests, that you/they should be disciplined through the law, in the search of to help as much most as the minorities that form the society.

2. The organization of the Military Justice

In the Brazilian juridical system, the Military Justice separates in: The military justice of the Union and Justice of the Army of States, and the first judges in the rule the military members of the armed forces (the Army, Armada and Aeronautics), when these violate the devices foreseen in the Military Penal code, while Monday he/she judges the members of the Auxiliary Forces, (the Military police and the Military brigades of Fire).

To 1 case of the Military Justice of the Union it is constituted by the Council of Justice, formed by proportionate civil judge to the position through a public competition of tests and holding, and more 4 (four) official whose they put and they patent they will depend on the position or the accused's graduation. The council of Justice for the his/her times he/she separates in: Special council that the you/they is dedicated in the opinion of the officials, less the general officials 2 that are processed and they judged the originariamente in the Tribunal Military Superior, and Permanent Council that the you/they is dedicated in the opinion of the squares (soldier, cable, sergeant, sublieutenant, or suboficial, cadets or official students and the applicant-to-official one or naval flag.

Due to the existent mixed formation in the Council of Justice, in other terms, formed more by a civil judge the military judges, this organ calls himself of escabinado or escabinato. The military ones that you/they integrates the act of the Council in the Military Justice for a period of three months at the end that the new officials will call themselves for the comporem the Cut Castrates you.

It is important if he observes that those the Council is presided over by an official that has the biggest position or it patents the other members of the escabinato regarding, and that the main office of the Specialized Justice in 1 the grade possesses the denomination of Army Magistracy to Intervene. In States of the Federation, for the force of the Constitutional Amendment nr. 45/2004, the council of Justice passed to be presided over by the Judge of Right of the Military Justice.

The organization of the State Military Justice in 1 the case is similar the one of the Federal Military Justice kept some particularities about the positions and graduations of the Military police and Military brigades of Fire. In the State Corporations, the highest position in the military hierarchy is the Position of PM of Colonel or BM.

In the State of Mines Gerais, the State Military Justice possesses three Army Judicial Auditings, while in the State of São Paulo, the Justiça Castrates four Military Auditings of Knowledge it is possessed and an Intervening Military of Execution, all with the thirst in the Capital, not existing anyone Intervening in the interior. In Big River Sul makes, two Auditings exists in the Capital and two Auditings in the interior, and us other States of the Federation it only exists an Intervening Judicial Soldierly with the thirst in the Capital, the same event with the Federal district where the army of PM and of BM they are not judged more the one Intervening Military of the Union, what contradicted the principle of the federalism consecrated in the Federal Constitution of 1967, and also the Constitutional Amendment nr. 01 of 1969, and in the Federal Constitution of 1988.

To 2 case it is constituted by the Tribunal Military Superior in the magnitude of the Military Justice of the Union, (S.T.M) that judges the next resources of the Federal Military Auditings, and also the original matter foreseen in the Law of Organization of the Military Magistracy and in the Interior Regiment of the Cut that exists from 1808 when to the Real family it arrived in Brazil.

To 2 case it is constituted in some States in the case of the State Military Justice, you Mine Gerais, São Paulo and Big River make Sul 3, for the Tribunals of Military Justice (T.J.M). in the States-members where T.J.M that competition doesn't exist it is exercised by the Tribunal of Justice, TJ, or for a Specialized Camera integrated by five Main judges.

The Tribunal of Military Justice of the State of Mines Gerais is made up of seven judges 4, while being three civil judges and two military judges in Colonel's PM patents and an ownership of the military judge to the brigade of Military Fire in the same patent, all the ownership some the asset of the Corporation. In the State of São Paulo and of Big River Sul makes, the Military Tribunal constitutes of seven judges, while being four military judges and three civil judges, being an originating of one the class of the lawyers, another of the class of the service of the prosecution Public, and other a coming for the promotion of the judges of right of the class of Military Justice. The Military Tribunals besides judging the next resources of the Military Auditings still decide in the service the Federal Constitution and the State Constitutions the loss of the position and of the patent and of the graduation of the squares and also the declaration of indignity for the the members of the Military Corporations.

3. The competition of the Military Judges in Second Grade

The ordinary legislator with the base in the Constitutional Amendment nr. 45/2004 looked for to achieve the Reformation of the Judicial Power, and in the magnitude of the State Military Justice that finished creating two species of procedures for the competition crimes of this the Justice it Specialized, while appearing of this form two jurisdicionais of the organs, the Judge of Right and Council of Justice. The first one with the competition to process and to judge the military ones in the military crimes practiced against civil 5, and the second with the competition to process and to judge the military ones us other cases settled down in the Military Penal code.

Also, the Constitutional Amendment nr. 45/2004 created a new competition for the State Military Justice. After several years that judge the criminal matter, the Justice Castrates you State he/she had the jurisdicional of competition of altered his/her to process and to judge the matters of civil and administrative nature with regard to the discipline of actions.

As the action definition to discipline this ensejará several discussions of the doctrinaire and also the jurisprudencial, but at the beginning the term used by the Federal Constitution can understand each other as being the administrative action through that the Military Public Administration imposes a sanction to the military offender that was accused of the practice of a transgression to discipline the smallest crime to discipline, of slight nature, I average, or I register, foreseen in the Regulation to Discipline, or in the Code of Ethics and it Disciplines 6, or still as being the exercise of the Powers that the you/they is assured the Administration it Publishes, to discipline and hierarchical to regulate their relationships with they administered them and also as the military servants.

The military one that to feel damaged in the reason of a sanction imposed by the Public Administration for Not militating more than it can go by the Common Justice, it Holes of Public Finances 7. The action should intend before the Military Justice of the State, in the rule with the thirst in the Capital that is the competent Trial to process and to judge the matter questioned for the administered member of the Auxiliary Forces, or in the best doctrine the Military Forces of Security 8.

The diploma to be observed in the trial of this species of actions is the Code of Civil Process where the author should stuff the requirements of the case when he teaches Moacyr Amaral of Santos, the interest of acting, the legitimacy and artificial possibility of the demand without the Judge should consider the inapt initial, with the extinction of the process without the trial of the merit.

Also, the test of the obligation belongs to the author that should demonstrate the facts alleged in the initial, under the ticket of improcedência of the action, with the consequent condemnation to the payment of costs and it rewards the advocatícios. The civil jurisdiction is not governed by the principle of the gratuitousness, unless the author verifying the necessity of concession of the free justice that will be capable to in case the litigant's capacity is proven the one to be revoked whenever.

The matter should be regulated through a Law of Organization of the State Magistracy, in the service at the beginning federal foreseen in the Federal Constitution of 1988, that assures to the States-members of the Federation the political and administrative autonomy, and that it reaches besides the Executive Power, the Powers Legislative and Magistracy.

For the force of these modifications, it leaves the doctrine he/she understands that the military judges in second grade of the jurisdiction would not be competent to analyze the current resources of the decisions uttered by the judges of right of the Military Justice in 1 grade, it spreads in the view that the legislator left the competition of the escabinato for him it analyzes her/it of the current civil actions of discipline of actions.

The established norm for the constituent legislator flowed in any moment it extinguished the existent Military Tribunals in States of Mines Gerais, São Paulo and Big River make Sul, what leaves the second understanding that the military judges in the recursal of the case could not analyze the matters of civil nature. The competition in first grade doesn't made a mistake with the competition in second grade. In the reason of this difference it cares that it is of competition it exists it would originate of the Tribunals, without that suppression of the case or the same violation mean to the I begin of the natural judge and of the due legal process that the you/they integrates the principle of the due legal process.

It should still be observed that the military judges in second grade are magistrates with all the rights and the current prerogatives of the position, while beginning to acquire all the constitutional guarantees, vitaliciedade, the inamovibilidade, the irredutibilidade of expirations, beginning of the moment in that property of taking of you/they in the Tribunal of Military Justice, after the action of nomination of the Governor of the State where the option you proceeded with the base in the triple of the line sent by the Tribunal of Justice of the State in the service to the commands settled down in the Federal Constitution and in the Constitution of the State.

For the force of constitutional disposition any limitation doesn't exist this way, so that the military judges can analyze the matters that are of competition of the Tribunal of Military Justice. The resource possesses effective suspensive and devolutionary and beginning of the interference of the his/her the Tribunal begins to have the competition to analyze the matter that you discussed in first case.

The derived constituent legislator established a new competition for the State Military Justice of 1 case, but it didn't alter the competition of the second case. Beginning of the moment in that the correct judges began to have the competition to analyze the civil actions in States where the Military Tribunals the recursal of the matter exists they passed to belong to these Tribunals that integrate the structure of the Judicial Power. Us other States, the competition continues the ownership to the Tribunals of Justice in the service the constitutional dispositions of that the you/they takes care of the matter of the Federal Constitution of 1946.

Consequently, the Military Tribunals if they understand that that should not organize a Specialized Camera in the civil matter for us to judge the current resources of the decisions uttered by the Judges of Right of the Military Justice in the civil matter he/she won't be practicing any violation to the I begin constitutional he/she settled down with the Reformation of the Judicial Power through EEC 45/2004.

4. Last considerations

The established competition for EEC nr. 45/2004 in any moment you gone of the existent Military Tribunals in States of Mines Gerais, São Paulo and Big River make Sul, the possibility of them analyzes in the main office of the resource the decisions uttered by the Judges of Right that the act the Military Justice together in the criminal matter and in the civil matter.

The Military Judges that the you/they acts in the main office of second case that when they are invested in the public position he/she acquires all the guarantees that make sure to the magistrates, the irredutibilidade of expirations, inamovibilidade and vitaliciedade, immediately.

For the force of the constitutional guarantees and because they are the Tribunals the jurisdicionais of the organs to Militate with constitutional forecast elements that can prevent that those magistrates can analyze that the resources that are of competition of the his/her don't exist.

The fact of the Constitution to have established the competition of the Judges of Right in first case for us to analyze certain matters doesn't mean that the judges of the Tribunal that it is originating of of the military career they are not competent for us to analyze the same matter in the main office of the resource.

The Military Tribunals if they understand as this him/it and them they have the interest it can create a Civil Camera for us to analyze the resources that originate of of the First Case, the one one that besides it can be constituted by the Military Judges. But, if the Tribunals understand that the current structure should stay that any nullity had not existed to be cured by the Superior Tribunal of Justice or for the Federal Supreme court.

The competition of the Military Justice of first case doesn't made a mistake with the attributions of the Tribunal of Military Justice in second case, because I marry it contradicts the matter it could not exist it would originate unless it passed a suppression of the case.

The Constitutional Amendment n 45/2004 looked for to improve the State Military Justice and in this sense it owes the amendment to be interpreted with the base in the other legal dispositions, in the search of a jurisdicional of the effective installation that you/they can allow the maintenance of the hierarchy and of the discipline in the Military Corporations

Declare, that you/they is and they continue to the being the Military Institutions, so that these continue giving a service of quality more and more the population as him is spending in most of States from the XIX century.

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The bibliographical references

1. they were the policeman of forces in the system constitutional Brazilian in a deepened way, besides about the responsibility of the State, in the Responsibility of work of the State for the Actions of the National Forces of Security, of literary paternity of the Paulo Tadeu Rodrigues Rosa that is being revised by the Publisher and Distributor Supreme the Culture in the year of 2007.

2. the general officials for the force of the Statute of the Military ones are: Guerra's armada, the Back admiral, admiral of the Bad habit, Admiral of Squad,; I exercise Brazilian, General of Brigade, General of Division and General of me it Exercises; The air force, Brigadier, Old-brigadier, Lieutenant-brigadier, and Admiral's positions, Marshal of Field and Marshal of the Air, they only exist on time of Guerra.

3. the Organic act of the National Magistracy, LOMAN, fact the forecast of the Tribunal of Military Justice of the State of Paraná that settled.

4. in the reason of the coming of the Constitutional Amendment nr. 45/2004, the Law of Judicial Organization of the State of Mines Gerais, the Law n 59/2001, it went by the modifications with the coming of the Complemental Law 85/2005. In this sense, looking for to restructure the Power the Judicial Miner and also the Power Judicial Soldierly of the State that began to have the competition to analyze civil matter where the Tribunal of Military Justice began to have seven entire, while being four army, three colonels PM and a colonel BM, and three civil judges, being an originating of one the class of the lawyers, another of the class of the service of the prosecution Public, and other a coming for the promotion of the judges of right of the class of Military Justice.

5. in the States-members of the Federation where the Colonels, PM or BM were processed, and he/she judged the originariamente in the Tribunal of Military Justice in the military crimes practiced against civil, these for the force of the Constitutional Amendment nr. 45/2004 should be processed in this category of crimes and they should be judged before the Judge of Right of the Military Justice. In the State of São Paulo where the General Commandant and the Boss of the Military House are processed and they judged the originariamente in the Tribunal of Military Justice this disposition in the reason of the coming of the Amendment 45/2004 Constitutional it became unconstitutional.

6. to Military police of the State of Mines Gerais substituted the old Regulation to Discipline to military Police, I Decree the State nr. 23.085, of October of 1983, 10 for a Code of Ethics and it Disciplines of the Army of the State, the State of the Law nr. 14.310, of June of 2002, 19 accepted for the Assembly of the Legislative of the State that in the service to the constitutional text defines the transgressions expressly discipline that it is subject the military ones declare.

7. in spite of the coming of the Amendment 45/2004 Constitutional, some protected ones are still entering with the cases with regard to the actions it disciplines before the Stick of Public Finances that began to be incompetent to process and to judge the cases that involve the military ones he/she declares.

8. in the work the Military Administrative Right - the Theory and he/she Practices, Publisher Lumen Júris, the Paulo Tadeu Rodrigues Rosa has been looking for to avoid the use of the expression the Auxiliary Forces to understand that the Military police in the exercise of its constitutional functions of public order is not an auxiliary force, but a military force of security together with the Military brigades of Fire, being these responsible ones for the preservation of the rights and fundamental guarantees assured to the Brazilians and foreigners that live in the States-members of the Federation.

9. SAINTS, Moacyr Amaral. First the Lines of Civil Procedural Right. 14 ed. São Paulo: It hails, 1991.

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The bibliography

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CAHALI, Yussef Said. Responsabilidade Civil do Estado. 2a ed. São Paulo: RT,1995.

CALAMANDREI, Piero. Eles, os Juízes, Vistos por um Advogado. São Paulo:Martins Fontes, 1995.

CARVALHO FILHO, José dos Santos. Manual de Direito Administrativo. 2a ed.rev. e ampl. Rio de Janeiro: Lumen Juris, 1999.

CRETELLA JÚNIOR, José. Manual de Direito Administrativo. 6a ed. Rio de Janeiro: Forense, 1992.

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GASPARINI, Diógenes. Direito Administrativo. 4a ed. rev. ampl. São Paulo:Saraiva, 1995.

KELSEN, Hans. Teoria Pura do Direito. São Paulo : Martins Fontes. 1992.

KELSEN, Hans. A ilusão da Justiça. São Paulo: Martins Fontes : 1995.

LAZZARINI, Álvaro. Temas de Direito Administrativo. São Paulo: Revista dos Tribunais, 2000.

LAZZARINI, Álvaro. Estudos de Direito Administrativo. Coord. Yussef Cahali. São Paulo: RT, 1996.

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MASAGAO, Mário. Curso de Direito Administrativo. 4 ª ed. São Paulo : Revista dos Tribunais, 1968

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MOREIRA NETO, Diogo de Figueiredo. Curso de Direito Administrativo. 11a ed.Rio de Janeiro: Forense, 1996.

PIETRO, Maria Sylvia Zanella. Direito Administrativo. 5a ed. São Paulo: Atlas,1995.

ROSA, Paulo Tadeu Rodrigues. Direito Administrativo Militar – Teoria e Pratica, 2ª ed, Rio de Janeiro : Lumen Juris, 2005.

ROTH, Ronaldo João. Justiça Militar e as Peculiaridades do Juiz Militar na Atuação Jurisdicional. São Paulo : Editora Juarez de Oliveira, 2003.

SANTOS, Moacyr Amaral. Primeiras Linhas de Direito Processual Civil. 14 ª ed.São Paulo : Saraiva, 1991

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