Formulário de apuração de transgressão disciplinar - FATD: ausência do devido processo legal no processo disciplinar militar

Abstract

This paper has as its core the defense of the principle of freedom as one of the most valuable legal assets of the human being, surpassed only by the right of life, seen as the greater legal asset. It is in this perspective that the Disciplinary Transgression Form is used, as an instrument that investigates possible military transgression governed by the Army Disciplinary Regulation and which, after finalised, can restrain the right to Freedom of that military, among other disciplinary sanctions, when applicable. For a better perception about the proposed theme, it will focus on the historical context in which the military regulations occurred in Brazil and how they were applied to the present, from the perspective of the Army Disciplinary Regulation and military Penal Code, among other Military and administrative Laws, among others. The restrainment of freedom refuted in this paper does not imply in desire for extinction of it from the legal order, but that the means that conceive it are those constitutionally conquered, following what is proposed in law, which would be “Due Process of Law”. The Disciplinary Transgression Form, as will be verified in the lines of this paper, is a accelerated rite that does not contain constitutional principles, such as technical defense, the natural and impartial judge, among others, without which it explicitly hurts the “Due Process of Law” and wide defense, According to the Federal Constitution of 1988 (CF/88). It is in this sense that the Disciplinary Transgression Form should not be the instrument for administrative investigation of disciplinary transgression and, consequently, punishment of military servant. As we will see in the course of this study, there are legal administrative mechanisms for determining the fact and, if needed, for the application of a sanction to the specific case.