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The Attorney General of the Republic, Elizeta Ramos, filed a Direct Action of Unconstitutionality (ADI) in the Federal Supreme Court (STF), with an injunction, against art. the art. 216, § 2, of the Military Penal Code, inserted by Law 14,688, of September 20, 2023, which sets a lower penalty for the crime of racial and homotransphobic insult in relation to the punishment provided for in the Racism Law. ADI 7547 was reported by Minister Gilmar Mendes.

 

Law 14,688, according to the Federal Public Ministry (MPF), had the objective of adapting the Military Penal Code to the Constitution and the provisions of the Penal Code and the Heinous Crimes Law, in order to “promote an update of military criminal legislation ”. “When the project that resulted in the law was proposed, racial insult was typified only by the Penal Code, which established a penalty of 1 to 3 years of imprisonment, exactly the same provision that existed in the then project that updated the Military Penal Code”, highlights the MPF.

 

However, while the bill was being processed, the Supreme Court equated racial and homotransphobic slurs with racism. Thus, the National Congress enacted Law 14,532/23, which classifies racial insult as a crime of racism, with a penalty of 2 to 5 years of imprisonment and a fine — previously, the penalty was 1 to 3 years of imprisonment.

 

 

‘Inconceivable setback’

Thus, the MPF highlights that the law that updated the Military Penal Code began to “promote an inconceivable setback” by providing for a sentence of 1 to 3 years for the military crime of injury caused by the use of elements relating to race, color, ethnicity, religion and sexual orientation. According to the Public Prosecutor's Office, in practice there was a reduction in the penalty if the conduct was carried out by a soldier against another in the exercise of his duties or in places subject to military administration.

 

”The reprehensibility of conduct that offends human dignity, which must be protected regardless of race, color, ethnicity, religion, national origin or sexual orientation, is aggravated by the condition of it being carried out by military personnel against military personnel in a military environment governed by discipline and hierarchy. , and not the other way around”, highlighted Elizeta Ramos.

 

Transgression of constitutional status

In the action, the Public Prosecutor's Office emphasizes that admitting the reduction of the level of reprehensibility of the conduct means "clear transgression" of the punitive constitutional statute of racism. Furthermore, the attorney general also emphasizes that the rule violates arts. 3rd, IV; 4th, VIII; and 5th, XLI and XLII, of the Federal Constitution.

 

The ADI filed by the MPF also highlights that the criminal reduction is contrary to the Inter-American Convention against Racism, which establishes the commitment of States Parties to: “prevent, eliminate, prohibit and punish all acts and manifestations of racism, racial discrimination and related forms of intolerance.”

 

Other requests

The action also requires that the effects of the questioned rule be immediately suspended, which reduces the penalty for the crime of racial insult committed by a soldier against another. It also requires that information be collected from the Presidency of the Republic and the National Congress, and that the Attorney General's Office (AGU) be consulted.

 

Furthermore, the PGR requests that the Supreme Court judge the request to declare unconstitutional the expressions "race", "color", "ethnicity", "origin" and "sexual orientation", so that the type of resulting penalty has a primary precept identical to that inscribed in art. 140, § 3, of the Penal Code and the same sentence range.

 

If the STF understands that the declaration of unconstitutionality of the expressions cited by the attorney general result in the creation of a criminal type not foreseen or desired by the legislator, the PGR requests the declaration of unconstitutionality of the entire § 2 of the art. 216 of the Military Penal Code, so that the conduct described therein is contained within the types listed in art. 140, § 3, of the Penal Code, and in art. 2-A of the Racism Law, as amended by Law 14,532/23.