Rehabilitation in the military penal right

The art. 134 of the Código Miltiar establish that, the rehabilitation reaches any feathers imposed by definitive sentence". According to the article in his/her initial part, the institute of the rehabilitation not just reaches the private feathers of freedom, simple prison, detention or seclusion, as well as the restrictive feathers of right, accessory feathers, or another that they have been imposed by the State Military Justice, of Federal district or of the Union, to the military ones or the civilians, that they have been processed and judged before this Specialized Justice. The only condition sine qua non that establishes at first the article is that the feathers have been imposed through a definitive sentence. Actually the article should have used the expression definitive decision. A feather have been impose in a definitive way by a decision uttered by Judge of first instance, or for a decision uttered by the Tribunal. In the first case, the decision will have been imposed by a sentence that will have when in judge effective of definitive, but if the interested part interposes resource this sentence won't be more definitive and it will only produce their effects after the decision to be uttered by the competent Tribunal through a sentence, of which still in some hypotheses foreseen in the Federal Constitution and in law infraconstitucional it will be possible to interpose extraordinary resource for Federal Supreme court or special resource for the Superior Tribunal of Justice, both with headquarters in Brasília and jurisdiction in the whole national territory.

§ 1st the rehabilitation can be requested elapsed five years of the day in that it be extinguished, anyway, the main feather or to finish the execution of this or of applied safety's measure in substitution (art. 113), or of the day in that to finish him/it period of the conditional suspension of the feather or of the conditional liberation, since the convict:

The interference of the rehabilitation request for the interested party, civil or military, federal or state, demands accordingly what was established for the military penal law the completion of some essential requirements, without which the request cannot be appreciated by the magistrate of the Military Justice, and in reason of this the request should be extinct of plan for lack of one of the conditions of the action. According to the determination in the paragraph under analysis, the interested party will only be able to enter in judgement with the request since they have elapsed at least five counted years of the day in that it has been extinguished, anyway, the main feather, or have finished the execution of this or of safety's measure that was applied in substitution according to the established in the art. 113 of CPM, or of the day in that it finished him/it period of the conditional suspension of the feather, or of the conditional liberation. For a better understanding of the norm under analysis, it is done necessary to transcribe the established in the art. 113 that it was mentioned in this paragraph. According to the art. 113, of the Military Penal code, “When the convict is framed in the only paragraph of the art. 48 and he/she needs special healing treatment, the private feather of freedom can be substituted by the internment in establishment psychiatric enclosure to the judiciary insane asylum or the penal establishment, or in special section of an or of other”. THE established period for CPM is not the same of the Penal code powder-reform of 1984. According to the art. 94, “the rehabilitation can be requested, elapsed 2 (two) years of the day in that it be extinguished, anyway, the feather or to finish his/her execution, being computed the period of proof of the suspension and the one of the conditional liberation, if it doesn't befall repeal”. it is Verified that CPM is much more severe than the Penal code as for the period so that the interested party can enter with the rehabilitation request. Although the established period in the legislation castrense is more severe this continues prevailing as essential condition for the entrance of the measure.

a) he has had home in the Country, in the period above referred;

After the requirement of the period of five established years in the military penal law, the first established requirement for the paragraphs of the article under analysis is it regarding the time of residence in the country, that will only reach the resident foreigners in the country that you/they have been condemned by the Military Justice of the Union, or the Brazilians that were not living at the country in the moment of the condemnation in the reality or for some reason they were absent of the country. In most of the cases, the people to fill out the established requirement for the law for they be Brazilian, born or naturalized residents in the country. In case the interested party doesn't come to fill out this requirement will have to await the five year-old temporary lapse under penalty of having his/her rejected request of plan for the magistrate.

b) he has given, for that time, demonstration executes and constant of good public and private behavior;

The interested party in getting the penal rehabilitation should demonstrate that if it turned a trustworthy person and that it has been proceeding in his/her public life and toilet of form dignificante, not frequenting places destined to the exploration of the prostitution, adult or infantile, not maintaining relationships with people of doubtful conduct, as for instance, those that are devoted to the exploration of the traffic of narcotics and other drugs tune, smuggling, among other behaviors that can demonstrate that the person didn't stand back of the illicit practical calls.

c) it has compensated the damage caused by the crime or demonstrate absolute impossibility of doing to the day of the request, or exhibit document to prove the victim's renouncement or novation of the debt.

The victim in the process penal, common or military, it has been left of side, without a larger attendance on the part of the State. Actually, the victim in the current Brazilian penal system that gives prestige to and a lot the accused's illustration, sits down most of the time embarrassed for finding in victim's condition, as if it had been the responsible for the practice of the illicit. Instead of being it aids the victim many times is submitted to a situation constraining, vexatious, that he/she brings him/her pain and suffering. The paragraph under analysis tries to lessen the suffering of that partly or of that that was victim of a military crime practiced by a servant that should protect those that are the addressees of public and national safety's services in the reality that you/they are rendered by the State. The victims in the reality don't know their rights and this way they don't work the State so that it can receive a compensation for the damages that had to support. As the established in this norm, if the interested party has not proceeded to the compensation of the damages supported by the victim or not to demonstrate that it doesn't possess conditions to do him/it cannot receive the benefits that were established for the law, that in the reality in reason of the dispositions of the Law of Penal Execution, that it is applied executes the State Military Justice, it lost his/her sense. The Military Penal code in the reality needs and he/she needs an effective reform, be concerning general part and also in what he/she refers the special part, in the search of the invigoration of the Military Institutions, mainly the State Institutions.

§ 2nd the rehabilitation cannot be granted:

As the established in this paragraph in certain situations the rehabilitation cannot be granted by the Judge of Right of the Military Judgement or for the Judge-auditor. The judge should be verified the request that was presented him/her if it doesn't frame in the established vedações for the Military Penal code. In the day by day of the auditings, it is verified that the rehabilitation requests are scarce, in other words, the military ones state that you/they were condemned by the practice of military crimes don't have if interested party in entering with a lawsuit pleading the concession of the rehabilitation, especially because as it was already mentioned, the Law of Penal Execution modified the juridical situation that it existed until the year of 1984. After all, as he/she teaches the doctrine subsequent law repeals previous law and the Military Penal code of 1969 needs a modification in his/her general part.

the) in favor of the ones that were recognized dangerous, except for exact proof in contrary;

The Penal Right passed and it is going by an evolution, where the accused possesses rights and prerogatives that not always they are recognized in the victim's favor, that should receive certain warranties, but that end being forgotten. After all, in the denominated penal process of modern the most important subject is not the society, but the defendant. The theoretical ones, that not always they lived in an effective way the practice, they affirm that the violence is not solved with the hardening of the penal right. The premise is not true. A society that lives the impunity sense ends up being subjects her/it an impunity increase. The violence should be combatted with social politics, but one cannot forget that the State should also possess effective mechanisms to answer to the actions practiced by those that abandoned the execution of the law. After all, the poverty no justice actions of barbarism, that healthy very several of legitimate claims. Those considerations are current of the fact of this paragraph to establish that those that go thankfully dangerous they cannot be benefitted with the institute of the rehabilitation. But, after all, what is a person thankfully dangerous, tends in view that CPM didn't establish in an objective way the reach of this concept. In practice, it will fall to the Public prosecution service, Federal or State, to answer the rehabilitation request presented by the interested party, demonstrated through lawful proofs that the author of the lawsuit would be a dangerous person, and, therefore he would not make right the concession of the penal rehabilitation.

b) in relation to the reached by the feathers accessory of the art. 98, interruption VII, if the crime goes of sexual nature to the detriment of son, protected or curatelado.

The legislator is not known for which reason, for knowledge lack or of interest, he/she forgot to establish certain vedações destined to the military penal right. The Federal Law 8072/1990, that in reason of decision uttered by Federal Supreme court lost his/her reach, I aim at, he/she doesn't foresee the hardening of the execution of the feather concerning the established crimes in the Military Penal code, Law 1001, of 1969. But, in spite of these subjects, that a lot of times are of doctrinaire nature, the legislator of 1969 established that if the military or civilian has practiced a military crime of sexual nature to the detriment of the son, protected or curatelado, cannot be benefitted with the institute of the penal rehabilitation. At the present time this vedação became letter died tends in view the established in the Law of Penal Execution, that it possesses a relevant social character, but that forgets that the Brazilian penal system needs a restructuring to avoid that the prisoners continue practicing rebellions without they are subject the any consequence. In the reality, the prisoner that he/she doesn't work should have his/her worsened feather, instead of being subject to benefits only for the fact of working, forgetting that all those that are outside of the walls of the prison need and they need to work so that they can sustain itself and his/her own family.

Period for renewal of the request

§ 3rd Denied the rehabilitation, it cannot be requested again except after the two year-old continuation.

The penal rehabilitation only the interested party can be granted to fill out the requirements that were established for the Military Penal code, Law 1001, of 1969, that diversamente of the effective Penal code to the present moment didn't suffer modifications in his/her general part. After the reception of the request, a procedure judicial subject begins to the beginning of the contradictory with the effective participation of the Public prosecution service, in the case of the State Military Justice with the performance state promoters designated for the Military Justice of the State, and in the extent of the Union with the participation of the Military Public prosecution service, that it integrates the Pubic Ministry of the Union. At the end of the process, the Judge should utter a decision. The request that was presented can be judged reasonable or unfounded. The paragraph under analysis establishes that if the request be judged unfounded it will only be able to be renewed after the two year-old continuation.

§ 4th The periods for the rehabilitation request will be counted in double in the habitual criminal's case or for tendency.

The device under analysis establishes the counting of the period in double in the habitual criminal's case or criminal for tendency, terminology that is not used in the general part of the Penal code of 1940, that it was altered by the Federal Law 7.209 of 1984, that he/she took care of the reform of the general part. In this sense, nowadays, only the CPM uses habitual criminal's terminology or of criminal for tendency, but it is verified that in the day by day these terms are not more used. Besides, in the moment of the dosimetria of the feather, the magistrate of the Common Justice used to exasperate the accused's feather with base in these precepts. It is important if it it observes, that the military penal norm was not revoked expressly and, therefore he/she is in validity. In this sense, if the magistrate or the Tribunal of Military Justice, Tribunal of Justice or Superior Military Tribunal, they consider the interested party as habitual criminal or criminal for tendency in the moment of the fixation of the sentence this will have to await the period in double so that he/she can enter before the Judiciary Power with the rehabilitation request. In practice, it is verified that the art. 202, of the Law of Penal Execution, Federal Law 7.210/84, it moved away this compulsory nature, when assuring to the reeducating the secrecy of their criminal registrations, after the effective execution of the feather imposed by the Judiciary Power through a sentence in having judged or of a sentence in having judged, or after the extinction of the punishability in the established form in the Penal code or in the Military Penal code, not making any distinction as for the common criminal or as for the habitual criminal or for tendency. It is noticed, with base in this device and in others that integrate the general part of the Military Penal code that this needs to pass for a reform as well as it happened with the part of the Penal code. But, in reason of the lack of interest of the legislator infraconstitucional to safety's national forces, armed forces and forces policemen, civil or military, this reform will end up happening difficultly, falling this way to the magistrate in the moment of the application of the law to do the necessary interpretations in the search of the efetivação of the Justice, that is the foundation of the democratic State of Right and the final objective of the Right as Social sciences.

Repeal

§ 5th the rehabilitation will be revoked of occupation, or to application of the Public prosecution service, if the rehabilitated person be condemned, for definitive decision, to the execution of private feather of the freedom.

After the concession of the institute of the rehabilitation to the convict of the State Military Justice, of Federal district or of the Union, for a judicial decision in having judged and uttered by competent judge, Judge-auditor or Judge of Right of the Military Judgement, in the form of the dispositions of the law that you/they take care of the matter this it will be revoked of occupation by the magistrate, or to application of the Representative of the Public prosecution service, Federal or State, Common or Military, in case it is proven through suitable proof that rehabilitated has been it condemned in an initiate process-crime after the concession of the rehabilitation. According to the determination in the paragraph, so that the repeal of the benefit previously granted can happen is necessary that rehabilitated has been it condemned by a judicial decision in having judged for the practice of an illicit one penal where it has been him/her imposed a private feather of freedom, detention or seclusion. In this sense, if the person have been condemned to a restrictive feather of right or of fine, the repeal cannot happen. Besides, if the person has if used of one of the established institutes in the Law 9099/95, Law of Civil and Criminal Special Juizados, transaction or conditional suspension of the process, the established repeal in the norm penal castrense cannot also happen, tends in view the criterion that was adopted by the legislator, which is, judicial decision that has convict him rehabilitated to a private feather of freedom. Besides, with base in the dispositions of the paragraph under analysis, it should be observed that the law doesn't make mention of the condemnation the private feather of freedom should be originating from the Common Justice or of the Military Justice. Tends in view the term used by the norm, condemnation the private feather of freedom, is ended that if the beneficiary with the rehabilitation be condemned in the Common Justice or in the Military Justice to a private feather of freedom will have his/her revoked rehabilitation, which won't bring any consequence for force of the established in the art in practical terms. 202 of the Law of Penal Execution.

Note:

This work is protected for the federal Brazilian law of copyrights. In this sense, reproduction is authorized in the whole or partly since the due credit is checked the author of the work, owing this way to be mentioned the author's name and the link for Site Recanto of the Letters, Available in the Internet in: http://www.recantodasletras.com.br. it is expressly prohibited the commercial use of this work and also the creation of derived works.