Tuesday, July 29, 2014

Jurisdictional battle lines being drawn in Brazil

Prof. Flavia Piovesan
The question of military jurisdiction over offenses committed by civilians is taking center stage in Brazil. For competing views, compare this op-ed by law professors Flavia Piovesan and Juliana Cesario Alvim with this one by President Maria Elizabeth Guimarães Teixeira Rocha of the Supreme Military Tribunal, who points out that Brazil has a long tradition of subjecting civilians to military jurisdiction for some offenses. The two professors, on the other hand, argue (rough Google translation):
Virtually no democratic nation allows, in actuality, the trial of civilians by military courts in peacetime. The Inter-American Court of Human Rights, to whose jurisdiction Brazil has submitted, is emphatic in asserting that in a democratic state military jurisdiction must have a restrictive scope directly linked to the protection of legal interests that are characteristic of the military. For the Court, only active duty military personnel may be tried by military courts, and only for military crimes. To do otherwise is an affront to the right to due process and the right to a fair hearing conducted by an impartial and independent judge. This is also the guidance of the UN and the European Court of Human Rights.

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