Mais togas e menos sabres: ampliação de competência dos juízes togados na justiça militar brasileira e o princípio do juiz natural

Abstract

The existence of military justice in Brazil has been harshly challenged throughout the twentieth century. It has been accused of being a court of exception, but has also been accused of being a class privilege, and also criticized for the high cost of its courts in relation to the military criminal procedural lawsuit. One of the main criticisms, however, concerns the fact that the military, although not legally aware, has a judicial function. In Brazil, both the Military Justice of the Union and the State Military Justice have, as judicial organs in the first instance, Councils of Justice composed of civil magistrates (togas) and military (sabers), and these are majorities. Therefore, starting from the legal presupposition that the Military Justice was constitutionally established as specialized Justice, so that it should not be extinguished, but reformed, it was analyzed in this work as the extension of the competence of the toga judges could heal its structural problems, concretizing the principle of the natural judge, and ensuring the impartiality of the court under the Federal Constitution of 1988. Based on the principle of unity, one of the principles of the hermeneutic-concrete method of constitutional interpretation, it was found that the composition of Military Councils does not meet to the requirement of the constitutionally competent judge, necessary for the realization of the principle of the natural judge.