Habeas corpus na transgressão disciplinar militar: uma análise constitucional à luz do pacto de São José da Costa Rica

Abstract

The present work of course conclusion has as its central theme constitutional remedy today called habeas corpus, has its most remote origin in Roman law, mechanism through which any citizen could request that a free man be detained illegally, analyzing the legality of this legal instrument in the restriction of freedom when committing military disciplinary transgression. We observed that in its origin it was a broad instrument, since it allowed any citizen to impel it, an amplitude that remains until the present day. His first legal prediction, pointed out by authors of the area is the Magna Carta Inglesa, granted by King John without land on June 19, 1915, in the fields of Runnymed. This institute was introduced in Brazil upon the issuance of the decree of May 23, 1821, which provided that from that date no free person would be ar rested without a written judicial order, except in cases of flagrante delicto. Habeas corpus, established in the current constitution of the Federative Republic of Brazil, provides in its article 5, paragraph LXVIII, that the legal instrument cited in several cases involving a threat to its freedom. It has universal active legitimation, that is, anyone can file it, not requiring the subscription of lawyer. The present research project raises the problem of non-habeas corpus in prisons due to military disciplinary transgressions, which occur frequently in the military's daily life, and aims to discuss the legality of these prisons, analyzing for this reason the ap parent hierarchical conflict between constitutional norms in the light of the Pact of San José of Costa Rica and the abusiveness of the disciplinary regulations of the Brazilian military institu tions, trying to contribute to an understanding that may contribute to a discussion about the subject under study that may lead to the end of the abusive prisons suffered by that profes sional category as a result of the abuse of power disguised as hierarchy. The method of deduc tive approach and historical-deductive procedure was used. From broad-minded authors to more modern authors, as well as articles from digital periodicals by various authors, including doctors, masters and magistrates, extensive doctrine was used.