Discussion on the (un) constitutionality of law n. 12,970 of May 8, 2014, before the Brazilian legal system

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“DISCUSSION ON THE (IN) CONSTITUTIONALITY OF LAW No. 12.970 OF MAY 8, 2014 BEFORE THE ‘BRAZILIAN LEGAL SYSTEM’.

EMENTA: “IN THE TREATMENT OF THE LEGAL SYSTEM SHOULD PREVENT THE WILL OF COLLECTIVE ETHICAL CONSCIOUSNESS REGARDLESS OF THE WILL OF THE STATE. IT IS THE REASON ARISING OUT OF THE EPISTEMOLOGY OF THE LEGAL SYSTEM AND ITS OPERABILITY “.

TITLE I – EPISTEMOLOGY OF THE LEGAL SYSTEM.

HANS KELSEN

“PURE LEGAL SYSTEM” STATIC: Δ = PYRAMID OF STANDARDS.

“The Kelsenian view is of a pyramid of norms, a closed and static system.”

2) MIGUEL REALE

DYNAMIC LEGAL SYSTEM:

VALUE FACT VALUE

“The Realean vision is of three subsystems (or dimensions): of facts, values and norms. The system is open and dynamic, in constant dialogues “.

3) “COMMUNICATING LEGAL SYSTEM”.

– TRAJECTORY OF THE LEGAL SYSTEM:

 

– FACT → LEGAL FACT → LEGAL FACT.

– → SYNERGY OF COLLECTIVE ETHICAL CONSCIOUSNESS.

The profile of the person and of the social body is in its identity its reason for being and the Ethics of ‘Human Values’ becomes transparent in the eyes of all. Thus, the reach of the ‘Human Values’ of an anthropological nature that each person or society exposes constitutes a mode of cultural expression and that identifies to a great extent what the right to be advocated by the ethical-collective conscience. The symbiosis between “Ethics and Law” constructs a binomial capable of defining the social environment through which the State is passing and which reflects in the formulation of the “Content of the Norma”: the interaction between “Material Justice” – composed of ‘Fundamental Principles’ and the ‘Fundamental Principles’ – and ‘Formal Justice’, is characterized by the legal system in force and feasible, as they form the norm that translates into the concrete result of moral, cultural, political, economic and legal development of a particular people. In this context the norm reflects the social conduct stratified in time and space and its spirit or metaphysical meaning makes up the exercise of the popular will motivated by the ‘Values’ accepted and considered relevant, therefore it involves an incessant desire for progress ‘Institutional State’ . From a criterion of valuation of the relevant social conduct – juridical fact – by the ethical-collective conscience exposes a ‘Value’ founded mainly from “Natural Law” – in any of its aspects: divine, natural or rational – even in the settlement of the “Legal Sociology” that becomes, in turn, useful from the enthronement of the Standard in the legal order promulgated by the State. Thus, the norm is integrated by a conduct valued by its ethical concept [2] and that has in the culture of the people its presupposition of formation and that the dominant political power makes it apt or useful so that it is attended by all. The judgment of ethical quality of society is limited to the action of the State which coincides with the will of ethical-collective conscience and the benefit derived from it, from the material content of the norm adjusted to its fundamental values ​​and principles. The ethical values ​​of society, as of man, are not identical with the values ​​of their existence [3] – and those are altered according to time – hence in terms of the fundamental political decisions of the succeeding state. The state coexists with the society that gives it existence and the ethical concepts of that society are associated with the idea of ​​the spirit that gives life to the body or the space that projects to the world. The ‘Social Justice’ comes from an ethical concept of state practice that is in keeping with the interest of the society served, making a way to be followed and jointly achieved. The freedom of action of the Democratic State is directly proportional to the ethical foundations that society assists in the construction of its permanent cultural development. By the way, the historical data of ‘Positive Right’ worship the ‘idea that it has an intimate cause and effect relationship with social and political data and many other factors. There is a reciprocal relationship of causality [4], “even intrinsically with legal ethics, for if the norm is fair it must have beyond its aesthetic, but also its content to be legitimate and supported in the ‘Essential Values’ justifiable by the ethical-collective conscience , in time and space. Although it can affirm that there is no perfect legal order and infinite as to its validity, nevertheless, it is based on the thought that the legislator, like any man, has its imperfections and finite time of existence and therefore over time the norm it becomes unaccompanied by the reality that surrounds it by erecting it legitimate or invalid in the eyes and feelings of society in order to regard it as unjust. Thus, the main idea of ​​the idea of ​​justice is the axiology, that is, in its material content, having as its presuppositions: security, equity – social solidarity or ethical-collective cooperation – and in its formal axiological plane, institutional order established by the power of the State proportionally adequate with the fundamental rights of man, these protected in the essential values ​​of the determined social body and, therefore, having as concrete effect the subsumption of these factors with the norm, constituting at last the formulation of a conduct to be legitimately accepted by the community as a whole. In the effort to build a profile of a State protected by a legal order aimed at the full exercise of a Justice [5], with constant ethical training and by corollary in the fulfillment of its responsibilities with the social entity, it is given the opportunity to know the Right in an evaluative perspective based on new elements, in their primary content and, in fact, including how it could not fail to be “axiology”, as one of its members, in a dynamic vision and capable of becoming a significant dimension in this universe renewed. In this context, it is verified, for example, the examination of the question of the compatibility between the Power disciplined by the Human Sciences, as mentioned by Foucault [6] and the Legal Power or Legal Power. According to Foucault, the Power produced by the Human Sciences is derived from the scientific knowledge and applied by professionals in institutions, such as: in schools, hospitals, barracks, prisons, families and factories. Thus, it is not compatible with the Legal Power that focuses on the Sovereign Power of the State. On the other hand, Boaventura de Souza Santos [7], on the other hand, admits this compatibility by arguing that this scientific thinking is no longer accepted today, since there is constant interaction between Human Science and Formal State Power, in application of the rule to the specific case and even quotes the following example: “the accused or accused who depends on the legal scientific verdict on his mental health can be sent by the same institution, the Court, to make the examination before the doctor or even before the Institute Legal Physician of the Penitentiary “. In fact, this last conclusion is adequate to the current understanding that Human Science should be an instrument at the mercy of the State and in the case of applying the rule of law to the concrete case by the State Judge, it should take into account not only the effects technical and scientific, as an element of conviction, but also the ethical effects of its decision. Not only must the norm have its ethical content involved, but the decision of the magistrate also, that is, the fundamental values ​​that society enshrines must be present at the time of production of its verdict. Therefore, in order to have the symbiosis between the Human Sciences and the Law, including the norm, as the latter, one of the integral dimensions of its universe, there must be an exemplary harmony between both, including as a relation its axiological content and its aesthetics , at the time of its execution.

1-Theory of Niklas Luhmann’s System.

In the definition of Von Bertalanfly, the creator of the General System Theory, system is the ‘set of units in [8] mutual interrelationships’. For Morin, the system is “an interrelationship of elements that constitute a global entity or unity. Other definitions could be presented, but what is important to keep in mind is that the notion of system always encompasses two ideas: relationship and organization. In a system, its elements are related and thus acquire an organization, a totality that reveals the rule of the system. ” Systemic theory is endowed with a universality and reflectivity. By claiming a universality, of everything to be able to explain, systems theory will, by itself, explain itself. This gives him a third characteristic, which is also attributed to the systems he studied: self-reference. “[9] Still in the formation of systemic theory applied to sociology, Luhmann developed some concepts of Talcott Parsons [10] which established a” theory of action “based on the schematism end / middle – component” action “- of Weber, and the” system “component of Durkheim.

Specifically as to the theory of action, in tight summary, Parsons structuring structural functionalism outlines a theoretical construction visualized in the “cross-diagrams”. According to Willis Santiago Guerra Filho (GUERRA FILHO, 2009, p.208) systems theory must be able to explain everything using the system (self-reference) and what is not a system, that is, the surrounding environment or environment. Society and its intrinsic complexity stimulates the differentiation between environment and system, this in turn in different systems or subsystems. “The ‘systemic differentiation’ between ‘system’ and ‘environment’ is the basic artifice used by theory, which differentiation is brought ‘in’ from the system itself, so that the total system, society, appears as the ‘environment’ of the partial systems themselves, which differentiate themselves from them by gathering certain elements, linked by relations, forming a ‘unity’ “(GUERRA FILHO, 2009, p.208). It is considered a system as unit based on the organization, that if kept invariant, maintains the system. What may vary are its component elements of this system. For the organization what matters is the peculiar type of relationship between the elements, and for the structures what matters is that there are elements in interaction, provided by the medium to the system [11]. The systemic conception, in the way presented by Luhmann, “intends to explain the recursive patterns of interactions between social actors, which form communications systems, which, in reality, constitute the very nature of societies” [12]. Another aspect developed by Niklas Luhmann was the adoption of an open system model, replacing the usual closed model. [13] Importing concepts from physics, economics, biology, mechatronics, among others, and applying them to sociology, important concepts were adapted as entropy (which causes the systems to establish a process of exchange between system and medium) and exchange. In this aspect the system must be able to distinguish itself from the environment, being able to combine all the possibilities of operations, existing systems that can observe and distinguish, that is, with capacity of differentiation of the systems and means. It happens that in the social system, in the Luhmann’s model, it is operatively closed, while generating and producing its own operating elements internally without the interference or influence of external elements, but open while exchanging between system and medium by external irritations. Diagrammatically it is as if it were a homeostasis, where the system remains open receiving stimuli, irritations, of the environment, seeking dynamic equilibrium through the reduction of conflicts regulate the internal environment, sometimes behaving as a closed system because it does not require external elements to its self-regulation, but only, while open, to stimulate its regulation.

According to Marcelo Pereira de Mello [14]

“The idea that the legal system is a closed system should not obscure the fact that every system maintains connections with its environment. Luhmann formulates this conception in the following way: the legal system is opened because it is closed and closed because it is opened. (…) The author, with this paradox, wants to express the particular form of the relationship between the legal system and the corporate environment. As it affirms, the legal system has its component and its own form of expression: the norm; its own mode of operation, the lawful and unlawful code. There may be political influence in legislation, but only the law can change the law. Only within the legal system can the change of legal norms be perceived as a change of law (Luhmann 1986, p.113). To which I add: it is always a rule that decides which facts have legal relevance or not. In this sense, the legal system is a normatively closed system. ”

At the same time, it considers that the system is “normatively closed”, when establishing that only the norm that decides the legal relevance, the legal system is “cognitively open” in that it is stimulated by the information of the environment and in continuous adaptation to the requirements of the environment.

Luhmann calls the “double contingency of systems” the fact that they operate in a normatively closed manner and at the same time operate in a cognitively open way, “in which the asymmetry between the system and its environment forces them to reciprocal adaptation and change.”

Thus legal systems present a combination of normative and cognitive dispositions, establishing conditionalities for the introduction into the system of environmental stimuli, or irritations.

“In this sense, legal norms, unlike Kelsen and Durkheim’s conceptions, do not derive from a factual legal order nor from a fundamental norm, but are ‘conditionalities programs’ for the introduction into the system of environmental stimuli. Different from living systems, social systems would have instead of living elements, meanings, thoughts, etc., only communicative elements, communications, which produce other communications, do not exist in the environment but only in the social system (society) as a global communicative system. In this “macro system” the partial systems, called “functional systems”, appear as environment for each other.

So what is not environment is system, while subsystems, or partial / functional systems, are considered environment in relation to the others because they are external to them, although they are parts of the macro system (social system). This relationship is schematically presented below, in a very simplified way.

In social systems it is fundamental to have a mechanism of self-observation that would bring into it the difference between system and environment.

In social systems it is fundamental to have a mechanism of self-observation that would bring into it the difference between system and environment.

“For Gunther Teubner, (…) to study society as an autopoietic communicative system, one has to use a concept of ‘autopoiesis’ in which this would not be a blind process, as for Maturana, but a combination of self-production and self-observation “.

Luhmann proposes to substitute the structural functionalism (or functionalism of the maintenance of the structures, that has origin in the stimuli of ethnological and social-anthropological studies), of ontological roots and that, in his view, contained a series of limitations, by a consistent in functional equivalences . According to Javier Torres Nafarrate, “Equifunctionalism is the concept to designate a method, which, in order to solve problems, develops a special sensitivity towards different equivalent solutions.”

Coupled with this change in functionalism, from structural to functional (later termed systemic), it enhanced and adapted the theory of action by Talcott Parsons, whose works influenced Luhmann’s system in one way or another.

In this respect it is interesting to reproduce Luhmann’s text:

“Thus, the theory of action is more oriented to the individual as a subject and, in this way, sociology opens the possibility of integrating psychic and organic aspects of the one who acts; on the other hand, the system theory is used to designate large-scale (macrosocial) realities, in order to preserve their highly abstracted character “(emphasis added).

Luhmann expressly establishes a distancing of interpersonal relations, or micro-revolutions, taking as principle the large scale of system theory, a preponderant factor for not only the theoretical foundation of his theory, but for other themes of contemporary law, such as example the philosophical incorporation of the ‘criminal law of the enemy’.

Revision of Systemic Law.

In the understanding of reality questions arise that go beyond the mere human vision to reach the values ​​and meanings or meanings of the cognitive phenomena that underlie the reason and the sensorial of the Man, as a person, or as a social being that projects itself in time and in the space. Thus, the sciences try to explain the reasons that justify the concreteness of these cognitive phenomena, but not all have as their reach the social phenomenon as a singular object located in a trajectory of visible scope, observing the external conditions of communication; its content reflected in the general repercussion; of Systems or Dimensions that are designed to serve a common purpose; and in the formatting of a structure capable of producing effects that alter the reality not only of a being, but of a broad or reduced social context, according to the context of its universe of reference. Therefore, each System, according to the “System Theory”, highlighted in item I above and now revisited, has in itself a range of by-products or sub-systems and that these have their own autonomy, but are interconnected by a via of external communication attending or promoting the desired reach of the binding System. In this metaphysical system, as well as in each sub-system, it is good to try to describe the meaning and the rules of its foundation; the causes and conditions of his own existence; the principles of their degree of commitment to the common general interest; their capacity for reconstruction in the event of a crisis (autopoiesis), misuse of purpose or decay of their formation or structure presuppositions, the challenges to be overcome due to time or for any other reason leads you to believe in overcoming them due to external or even internal requirements. Finally, to verify the necessity of its existence as a phenomenon to be observed, understood and to be shaped with the reality that is around him.

Faced with this metaphysical universe that is too extensive to be examined in this study, it gives rise to a System [15], in particular, which has as its primacy the dimensions or sub-systems: factual, ethical-social, principiological, political and normative , as the concrete aim of serving the common good of a given society, in the time and space appropriate to its examination. This system is called Law and has an original implication in people’s way of life, because they live in a common environment: in the social environment [16]. In this desideratum, the right to attend to its legitimacy is formed by dimensions or subsystems that are interconnected by the ethical-collective conscience, constituting among them its constant and dynamic link. Thus, from the realization of the trajectory of fact, or (juridical fact) [17] and reaching its apex in fact, with collective ethical-social intensity (legal fact), and following the path of legitimation by the concepts ethics of society, going beyond the principles that enshrine these values, and the role of public policy as a subsystem that selects the principles and values ​​that at the historical moment have their social importance, according to the interest, opportunity and convenience proper to that society. subsystem, to constitute the norm, another subsystem and which has in its content material justice, comprising the and social values ​​that are implicitly concentrated in the materialization of the collective ethical-social will, as well as of the formal justice that consists in the materialization of the will of the State that explicitly exposes the regulation of the conduct of the social Man. Finally, in order to complement this cycle guided by the ethical-collective conscience, the public policy sub-system comes once again, but with a different perspective, which is fostered by the planning of social programs and legitimate execution to be carried out by the government or by the dominant legitimate power, according to the dictates of the norm, with the transparent purpose of serving the common good of the collectivity, in time and space. Therefore, the Law in this context, as being a System capable of producing effects and which has in the ethical-social valuation of the fact (juridical fact) its primordial and the common good of society its greatest purpose. In addition, it is necessary to formulate, before the above, a geometric figure [18] below that well exposes this understanding able to guide the interpreter of the Law as to its dynamics. In addition, it emphasizes that Law, as a social system, also has its core always focused on meeting the “Fundamental Principles” (eg, Article 9.3 of the Spanish Constitution, art.1 of the Brazilian CF / 1988; 20 of the German Constitution, Article 33 of the Belgian Constitution, art.1 of the French Constitution, art.1 of the Greek Constitution, art.2 of the Italian Constitution, art.2 of the Portuguese Constitution, etc.) that constitute the true substrate of the ethical, political, and normative formation of the Democratic State of Law and of the social Man, as seen:

F- Juridical Fact;
V- Value (ethics);
P- Principle;
P1 (Public Policy 1);
N – Standard;
Formal Justice;
Justice Material;
P2 (Public Policy 2);
Very common;
Synapse = Ethical-Collective Consciousness;
Democratic state;
Natural Sciences; Socially Irrelevant Facts and Human Acts;
Illicit; Illegitimate.

In a neutral sense, the Natural Sciences and the socially irrelevant facts that can be admitted in the dynamic social constructive cycle of Law stand out, if the ethical-collective conscience gives due importance to their meanings and assimilates them as being not only empirically inspired , but of ethical-collective density surrounding (legal fact). Lastly, the Binary System, which translates into the System that contradicts the Law in its manifestations of illegality and illegitimate. The illicit because it constitutes a fact that contradicts the norm in its Formal content and the illegitimate, in turn, is contrary to Material Justice and will be highlighted below, based on the analysis of the present geometric figure of the BINARY SYSTEM:

F- Unlawful or Illegible Fact;
V- Ethical value violated;
P- Unattended Principle;
P1 (Public Policy 1: Illegitimate);
N – Norm disrespected;
Formal Justice;
Justice Material;
P2 (Public Policy 2: Inefficient);
Common Good: Infringement;
Synapse = Ethical-Collective Consciousness;
Democratic State of Law (EDD) – Preterite;
Natural Sciences; Socially Irrelevant Facts and Human Acts;

In the binary trajectory of the fact it translates into the inversion of the fact that it was legal and that it became illegitimate or illegitimate (1), causing an injury in one of the subsystems of the Law and that must be recomposed by the democratic order, that is, by the Institutions that have constitutional competence to do so or even in the face of the reprobation of the collective ethical-social conscience is imposing on the State or the governmental power constituted the reconstruction – autopoiese – of the values ​​and social principles for having been affected. As far as this is concerned, axiology (2) has its comprehension in the valuation of the moral concepts that society preserves, since it dignifies the social Man and that is altered at all times, even because the dynamics of reality itself, therefore, imposes itself. Therefore, when an illegal or illegitimate action of any of its members affects this legal subsystem, it is appropriate to subject it to a resocialization through a mechanism of social defense capable of producing effects that address not only the ethical-social environment, but which does not violate human dignity.

In pursuit of this, with reference to the binary subsystem of the illegitimacy of public policies (4 and 8) is an injury against the Democratic State of Law itself, because the ethical-collective conscience (10) was violated in its greatest projection by which all should be guided : in the loyalty and honesty of those who represent or are leaders of the Nation. The absence of these requirements becomes a state unable to respond to the yearnings of society and accordingly the means of communication between the various legal subsystems already mentioned are obstructed, converging to a paralysis, making a static state with the distancing of those who possess temporarily the state political power of the other members of society that has unlimited social power and which reflect the very reason for the existence of the Right.

In addition, when examining the norm, as well as being a subsystem of Law, its core and its components of Formal Justice and Material Justice stand out. Consequently, in the occurrence of vice (5), in any of these components, in a binary perspective, the illegality appears in Formal Justice (6) or also illegitimacy in the Material Court (7). The illegality that consists of an injury in Formal Justice translates into the occurrence of the phenomenon of the antithesis of the will of the State, materialized in the making of the normative order in force and in the dogmatics of the Right to its comprehension, that is, distorting what the norm advocates for its interpretation, with the adequacy of the legal fact considered vitiated. On the other hand, the illegitimacy of Material Justice improves in the absence of an echo between the legal subsystems, values ​​(axiology) and principles (3) that society believes are vital for the formation of Law, with the action of the one who these meanings inherent in ethical-collective consciousness.

Finally, the Binary System of Law to be understood must be based on the premise of the emergence of an illegal or illegitimate fact that was considered relevant to the collective ethical conscience and also to the State, such as the enthronement of an illegitimate norm in which precepts on the secrecy of the investigation even after a claim due to air crash: without a legitimate justification, imposing a limitation on the constitutional attribution of the Public Prosecutor’s Office and even limiting the exercise of judicial activity, contrasting head-on with the higher Principles arising from the ‘Democratic State’ of Law “(11), as well as with the end of the” Legal System “implanted, configuring in the risk of the social order not to attend to the common good (9) of society or even in its improvement.

TITLE II – OPERABILITY OF THE LEGAL SYSTEM.

– “LEGAL SYSTEM EFFECTIVE”.

Presidency of the Republic
Civil House
Legal Sub-Office

LAW No. 12.970, OF MAY 8, 2014.

Veto message Amendments to Chapter VI of Title III and art. 302 and repeals arts. 89, 91 and 92 of Law No. 7,565, of December 19, 1986 – Brazilian Aeronautical Code, to dispose of the investigations of the Aeronautical Accident Investigation and Prevention System (SIPAER) and access to aircraft debris; and makes other arrangements.

THE PRESIDENT OF THE REPUBLIC I hereby announce that the National Congress decrees and I sanction the following Law:

Art. 1 Chapter VI of Title III of Law No. 7,565, of December 19, 1986 – Brazilian Aeronautical Code, shall become effective with the following changes:

“CHAPTER VI

SYSTEM OF INNOVATION AND PREVENTION OF AERONAUTICAL ACIDENTS – SIPAER

Section I

From Sipaer Research

………………………………………….. …………………………………….

Art. 86-A. The sole purpose of the investigation of aeronautical accidents and incidents is the prevention of other accidents and incidents by means of the identification of the factors that have contributed directly or indirectly to the occurrence and the issuance of safety recommendations.

Single paragraph. At any stage of the investigation, operational safety recommendations may be issued.

………………………………………….. …………………………………….

Art. 88-A. The SIPAER Investigation and Prevention System will encompass practices, techniques, processes, procedures and methods used to identify acts, conditions or circumstances that, individually or jointly, pose a risk to the integrity of persons, aircraft and other property, solely to the benefit of the prevention of aeronautical accidents, aeronautical incidents and occurrences of ground.

1. The Sipaer investigation shall consider known facts, hypotheses and precedents in the identification of possible contributing factors for the occurrence or aggravation of the consequences of aeronautical accidents, aeronautical incidents and occurrences of soil.
2. The investigating authority Sipaer may decide not to carry out the Sipaer investigation or to stop it if it is already in progress in cases where an unlawful act relating to the causation of the incident is found and where the investigation does not benefit the prevention of new accidents or incidents, without prejudice to the communication to the competent police authority – GRIFO OUR.

Art. 88-B. The Sipaer investigation of a particular accident, aeronautical incident or occurrence of ground shall unfold independently of any other investigations on the same event, being prohibited the participation in those of any person who is participating or has participated in the first – GRIFO OUR.

Art. 88-C. The Sipaer investigation shall not preclude the establishment or the need for further investigations, including for the purpose of prevention, and, by aiming at the preservation of human life, through security of air transport, shall take precedence over the procedures investigations regarding access to and safekeeping of items of interest to the investigation.

Art. 88-D. If, in the Sipaer investigation course, evidence of crime is found, whether or not related to the chain of events of the accident, communication to the competent police authority shall be made.

Art. 88-E. Upon request of the police or judicial authority, the investigating authority Sipaer shall make available experts for the examinations necessary to conduct a civil aircraft accident, provided that:

I – there is no qualified technician or appropriate equipment for the required examinations in the personnel of the requesting organ;

II – the requesting authority discriminates the examinations to be made;

III – there is a trained technician and appropriate equipment for the examinations required in the staff of the Sipaer investigation authority; and

IV – the requesting entity defrays all expenses arising from the request.

Single paragraph. Staff made available by the Sipaer investigation authority may not have participated in the Sipaer investigation of the same accident – GRIFO OUR -.

Section II

From Sipaer Research Competency

Art. 88-F. The investigation of an accident with Armed Forces aircraft will be conducted by the respective Military Command and, in the case of a foreign military aircraft, by the Aeronautical Command or according to the agreements in force.

Single paragraph. (VETOED).

Art. 88-G. The Sipaer civil accident investigation will be conducted by the investigating authority Sipaer, which will decide on the composition of the Sipaer investigation commission, whose chair will be a qualified professional with valid Sipaer credential.

1st The Sipaer investigation authority shall request from the competent organs and entities, with precedence over other requisitions, reports, examination reports, including autopsies, and copies of other documents of interest to the Sipaer investigation.
2. The Sipaer investigation commission shall, within the limits set by the Sipaer investigation authority, be granted access to the damaged aircraft, its wreckage and the things transported by it, as well as to facilities, equipment, documents and any other wherever they are.
3o The responsibility for non-compliance with the provisions of paragraphs 1 and 2 of this article will be determined through an administrative disciplinary process, if the fact does not result in crime.
4o In the urgent cases, the search and seizure, through the judicial representation body of the Union, shall be applied by Law No. 5,869, dated January 11, 1973 – Code of Civil Procedure.
5. In the event of an aeronautical accident, aeronautical incident or occurrence of ground with civil aircraft, the Sipaer investigation authority shall have priority in embarkation on Brazilian civil aircraft used for public air transport.
6o In order to expedite the Sipaer investigation, the priority provided for in § 5 of this article shall be exercised upon presentation of a credential issued by the Sipaer investigation authority at the boarding airport to the representative of the requested company.

Art. 88-H. The Sipaer Aeronautical Accident Investigation will be completed with the issuance of the final report, document representing the Sipaer investigation authority’s statement on the possible contributing factors of a certain aeronautical accident and makes recommendations solely for the benefit of the operational safety of the aerial activity.

Single paragraph. The final report of an accident with Armed Forces aircraft will be approved by the commander of the respective Military Command – GRIFO OUR – -.

Section III

Professional Secrecy and Information Protection

Art. 88-I. Sipaer fonts are:

I – recordings of communications between the air traffic control organs and their transcriptions;

II – recordings of cockpit conversations and their transcriptions;

III – data on voluntary occurrence reporting systems;

IV – recordings of communications between the aircraft and the air traffic control organs and their transcriptions;

V – recordings of flight data and the graphs and parameters therein extracted or transcribed or extracted and transcribed;

VI – data from automatic and manual data collection systems; and

VII – other records used in Sipaer activities, including those of investigation.

1st In the interest of the Sipaer investigation, the Sipaer investigative authority will take precedence over access and custody of the sources cited in the caput.
2. The source of information referred to in item III of the main clause and the analyzes and conclusions of the Sipaer investigation shall not be used for evidentiary purposes in legal proceedings and administrative proceedings and shall only be provided upon judicial request, observing art. 88-K of this Law.
3rd All information provided for the benefit of Sipaer investigation and other activities affected by Sipaer will be spontaneous and based on the legal guarantee of its exclusive use for prevention purposes.
4o Except for the benefit of Sipaer investigation and other prevention activities, the Sipaer professional shall be barred from disclosing its sources and contents, applying the provisions of art. 207 of Decree-Law No. 3,689, of October 3, 1941 – Code of Criminal Procedure, and in art. 406 of Law No. 5,869, dated January 11, 1973 – Code of Civil Procedure.

Art. 88-J. Sipaer sources and information that are allowed to be used in an investigation or in a judicial or administrative proceeding shall be protected by procedural confidentiality.

Art. 88-K. For the use of Sipaer sources as evidence, in cases permitted by this Law, the judge will decide after hearing the judicial representative of the Sipaer authority, who shall rule within 72 (seventy-two) hours.

Art. 88-L. The Sipaer authority, or whom it delegates, may decide on the advisability of disseminating, without prejudice to accident prevention and legal forecasts, information concerning Sipaer investigations in progress and their respective sources Sipaer – GRIFO OUR -.

Section IV

From Access to Aircraft Wreckage

Art. 88-M. The civil aircraft involved in an accident, aviation incident or occurrence of ground may be closed off by the Sipaer investigation authority, noting that:

I – the interdiction order shall be signed by the Sipaer investigation authority and, if possible, by the aircraft operator or its representative;

II – upon authorization of the Sipaer investigation authority, the restrained aircraft may operate for maintenance purposes; and

III – the operator will remain responsible for the performance of any obligations that affect the aircraft.

Art. 88-N. Except for the purpose of saving lives, preserving the safety of persons, or preserving evidence, no damaged aircraft, debris, or things transported by it may be searched or removed, unless authorized by the Sipaer Investigating Authority. the custody of items of interest to the investigation until their release under the terms of this Law.

Art. 88-O. The competent police authority shall isolate and preserve the location of the air accident or incident, including the crashed aircraft and its debris, for the collection of evidence, until the release of the aircraft or debris by both the aeronautical authorities and by any responsible criminal intelligence officers investigations.

Art. 88-P. In coordination with the Sipaer investigative authority, other bodies, including the civil aviation authority and the judicial police, shall be granted access to the damaged aircraft, its wreckage or to any of the things transported by it, and may only be manipulated or retained of any objects of the accident with the consent of the investigating authority Sipaer.

Art. 88-Q. The duty of removal of aircraft involved in accident, wreckage and transported goods, anywhere, shall be the operator of the aircraft, who shall bear the expenses thereof.

1o At public aerodromes, if the operator does not arrange for the removal of the aircraft or its debris in a timely manner, it shall be for the aerodrome’s administration to do so, and the expenses shall be paid to the aerodrome.
2. In order to protect the environment, safety, health and the preservation of public and private property, the operator of the crashed aircraft shall provide for and pay for the sanitation of the premises, goods and debris when, by the place or state in which can not be removed.
(3) The sale of debris, parts, parts, components and engines shall be prohibited before they have been released by the Sipaer investigation authority and, if any, by the police investigator, after observing all other legal and regulatory requirements.

Art. 88-R. Those interested in the custody of the wreckage should be authorized by the investigating authority Sipaer, from the beginning of the Sipaer investigation up to ninety (90) days after its conclusion, by means of a request to the judge of the case, who will judge on its suitability and interest.

1st If more than one interested party is entitled to the caput form, the wreckage will be sent to the one who first qualified, and all the authorized judges will be notified of the custody decision by means of official communication from the Sipaer investigation authority.
2. The transportation costs of the wreck shall be borne by the party concerned, who shall provide transportation within ninety (90) days from the deferral of his custody, and, if such term is exhausted, the next party in the order of preference shall be called.
3o Once the authorized interested parties, without effecting the removal of the wreckage, within the period established in § 2o, or if there is no interested party, the owner of the aircraft injured, recorded in the Brazilian Aeronautical Registry, will be notified, by means of a letter with acknowledgment of receipt , to proceed, within 90 (ninety) days of notification, to the removal of the wreckage.
4o If the owner is not found, if there is a refusal of the letter with a receipt notice or returning it without the signature of the notified person or his legal representative, the Sipaer investigation authority shall publish a notice in the official press and on the official website of the organ in the computers, internet, establishing a period of 90 (ninety) days for the owner to proceed to the removal of the wreckage, under its onus and responsibility.
5. Once the deadlines for the removal of debris by the owner have been reached, in accordance with §§ 1 to 4, the items may be used for the instruction or destroyed by the Sipaer investigation authority, and in the latter case the waste may be disposed of as scrap .
6o For the determination of the fulfillment of the period of expression of interest and the order of preference, the date of entry of the judicial request in the protocol of the investigating authority Sipaer will be considered.

Art. 89 (Repealed).

………………………………………….. …………………………………….

Art. 91 (Revoked).

Art. 92. (Repealed).

………………………………………….. …………………………………… ”

Art. 2 The item v of subsection III of art. 302 of Law No. 7,565, of December 19, 1986, shall become effective with the following wording:

“Art. 302. ………………………………………… …………………

………………………………………….. …………………………………….

III – ………………………………………… …………………………..

………………………………………….. …………………………………….

v) fail to inform the aeronautical authority of the occurrence of an incident or accident involving aircraft under its responsibility;

………………………………………….. …………………………… “(NR)

Article 3 Persons interested in the custody of aircraft wreckage, held by the Sipaer investigation authority, relating to aviation accidents, the final report of which has been issued up to the approval of this Law, shall be authorized by the aforementioned authority. to the judge of the case, within 180 (one hundred and eighty) days of the publication of this Law.

Art. 4 Art. 89, 91 and 92 of Law No. 7,565, of December 19, 1986 – Brazilian Code of Aeronautics.

Article 5 This Law shall enter into force on the date of its publication.

Brasília, May 8, 2014; 193nd of Independence and 126th of the Republic.

DILMA ROUSSEFF
José Eduardo Cardozo
Celso Luiz Nunes Amorim
W. Moreira Franco

This text does not replace the one published in the DOU dated 9.5.2014.

 

– CRITICAL ADDRESSED TO LAW 12.970 / 2014.

– Friday, August 15, 2014.

Attorney warns that Sigil Act for air accidents is unconstitutional

Rodrigo de Grandis, who investigated the TAM case, believes that secrecy should only exist ‘because of the efficiency of the investigation’.

Rodrigo de Grandis, prosecutor of the Republic said on Thursday, 14, that it is unconstitutional Law 12.970 / 14, which deals with the investigations of the System of Investigation and Prevention of Aeronautical Accidents (Sipaer) and imposes secrecy on the information of the black boxes of the airplanes. “It is a reserve of investigative space to the aeronautical authority, inexplicable in the Brazilian constitutional system,” warns the prosecutor.

Rodrigo De Grandis investigated the country’s biggest air disaster – 199 dead in the fall of the TAM plane, in the South zone of the capital, in June 2007. For him, the secrecy must exist due to the efficiency of the investigation. Law 12,970 / 14 was approved in May.

STATE: Mr. Is it for secrecy?

ATTORNEY OF THE RODRIGO DE GRANDIS REPUBLIC: As a rule, all investigations must be confidential. Research under spotlight is usually not efficient. Law No. 12.970 / 2014, however, establishes a confidentiality that compromises, because it can be extended to the Public Prosecutor’s Office and the Police, an adequate investigation of a criminal act, such as homicide (intentional and culpable), personal injury ( malicious and culpable) and of attacking the security of air transport.

STATUS: Does secrecy hinder or facilitate investigation?

RODRIGO DE GRANDIS: In the form stipulated by Law 12.970 / 2014, secrecy makes it difficult to investigate a criminal act related to an air accident.

STATE: What is your assessment of the law?

RODRIGO DE GRANDIS: Law number 12,970 is unconstitutional in several respects. Article 88-G, § 1 ensures a precedence of the Sipaer investigation that is not justified in the Brazilian criminal procedural system. It is therefore disproportionate in this case. The same is true of the precedence provided for in article 88-I, paragraph 1. What, however, seems to me to be more serious is the provisions of Article 88-I, § 2. The source of information referred to in item III of the caput and the analyzes and conclusions of the Sipaer investigation will not be used for evidentiary purposes in judicial proceedings and administrative proceedings and will only be provided through judicial request, pursuant to article 88-K of this Law.

STATE: What worries you?

RODRIGO DE GRANDIS: This article of the law is manifestly unconstitutional because it excludes from the appreciation of the Police, the Public Prosecutor’s Office and especially the relevant Judicial Branch elements of information about a possible criminal act. I do not know a similar device in the Brazilian legal system. Here there is a patent infringement of due process, both from the point of view of the adversary and the ample defense, since neither the Public Prosecutor nor the investigated person can use important evidence when in fact it occurred.

STATE: What is the need for confidentiality?

RODRIGO DE GRANDIS: The secrecy must exist because of the efficiency of the investigation. As proposed in law number 12.970 / 2014, I do not see protection of efficiency, but a reserve of investigative space to the aeronautical authority that is inexplicable in the Brazilian constitutional system.

“Theory of Implicit Powers”:

– “When the Constitution gives to a given body implicitly entrusts him the means of realizing it”.

– In this way, the theory of implicit powers allows us to understand that any constitutional rule that gives an organ the fulfillment of a given purpose implicitly allows it to use the means necessary and able to achieve such desideratum, unless expressly prohibited by the Constitution itself.

– Therefore, if the Public Prosecutor’s Office is granted the legitimacy for the initiation of the public criminal action, it is possible to investigate the fact for the procedure to denounce or not.

– The criminal investigation is an implicit power that would have the function to obtain sufficient elements to enable the formation of opinion of the promoter regarding materiality and criminal authorship.

– If the member of the Public Prosecutor’s Office can request investigative investigations, how can not the least, id est, do them motu propri? To the constitutional norm, as one reads from the principle of the greatest effectiveness, principle of effective interpretation, it must be attributed the sense that gives greater effectiveness.

– The prosecutor receiving a crime notice shall have the power-duty to collect confirmatory information, either by obtaining statements or by requesting evidence necessary to form his or her opinion regarding the offense. Therefore, if you can file a criminal action, you can collect elements for it.

– This is because in the civil area, both civil and criminal investigations, direct investigations are admitted from the state’s public prosecutor.

– It shall be the duty of the organ responsible for the ministerial action through requisitions, notifications and other diligences.

– Institutional guarantees of the Public Ministry and the fundamental rights it protects are closely linked.

– The Constitution, by giving primacy to the Public Prosecutor’s Office, gives it forms of protection so that the law or other normative source, even a constitutional amendment, can not affect it, otherwise, the society will be prejudiced in defense of the guarantee of the juridical order, and other desideratos that it is given to him by the art. 129 of the Federal Constitution, because the Public Prosecutor’s Office, as prosecutor of the law, is an institution whose permanence is necessary, for the good of society.It is what the Original Constituent said.

This is why the prohibitions on the activity of the Public Prosecutor’s Office that bring limitations to the faithful performance of its constitutional mandate are unconstitutional. One of them is implicitly observed, which is the power of ministerial investigation, which is given as a natural consequence of the activity of the author of the criminal action, as the Constitution directs.

Finally, the attempts to mitigate Parquet’s investigative activity seem unconstitutional.

EXPLOSION OF THE LEGAL SYSTEM: ‘ESPECIALLY IN ITS BARICENTER’.

[1] “Uma sociedade ética constitui-se naquela que busca o bem-estar de todos e onde o conceito de bem-estar seja estabelecido democraticamente” – Fabriz, Daury Cezar in “Bioética e Direitos Fundamentais”, p.77, Ed. Mandamentos.

[2] Na afirmação de Carlos Cossio na “Teoria Egológica do Direito” :“que el derecho es la conducta em interferência intersubjetva, ésta como objeto cultural está impregnada de valores que le dan um sentido, agregando que las normas cumplem um doble papel, ya que por uma parte son el pensamiento que mienta o describe a la conducta em su libertad y, por la otra integran la conducta de que ella misma hace mención, al integrar su sentido” – Cossio, Carlos, “La Teoria Egológica Del Derecho”, Abeledo-Perrot, Buenos Aires, 1964 -.

[3] Garcia, Ricardo Ginés, aduz: “Los valores éticos captados mediante los sentimientos se expresan em juicios de valoe ético. A diferencia de los juicios de existência, que contienen únicamente afirmaciones fácticas acerca lo que las cosas son, los juicios de valor señalan la repercusión que los actos propios o ajenos tienen para un sujeto, es dicidir, ponen de manifiesto el aprecio ou desprecio que las acciones poseen para un ser humano. Por ejemplo, emitimos un juicio de existência cuando afirmamos ‘el hombre es un animal racional’ y juicios de valor ético cuando decimos ‘ esta mujer es buena’ o ‘este juez es justo’ – in “Fundamentos Del Derecho”, Parábola Editorial, p. 89 – .

[4] Savigny, Carlos Federico de, apud Larenz, Karl in “Derecho Justo, Fundamentos de Ética Jurídica”, p.24, Editorial Civitas, S.A..

[5] Raws, John in “Uma Teoria de Justiça”, p.11, Ed. Martins Fontes: “Considero que o conceito de justiça se define pela atuação de seus princípios na atribuição de direitos e deveres e na definição da divisão apropriada de vantagens sociais. Uma concepção da justiça é uma interpretação dessa atuação”.

[6] Foucault, Michel, “La volonté de savoir”. Paris: Galimard (1976); “Discipline and Punish”. New York: Pantheon  (1977); “Power and Knowledge”, New York: Pantheon (1980).  

[7] De Souza Santos, Boaventura, “Critica de la Razón Indolente”, Vol.I, Desclee de Brauwer, Bilbau, 2003, p 55-56.

[8] BECHMANN, Gotthard; STEHR, Nico. Niklas Luhmann. Tempo Social – Revista de Sociologia, USP, São Paulo, n. 13, p. 185-200, nov. 2001.

[9] GUERRA FILHO, W. S.. Teoria da Ciência Jurídica. 2ª ed. São Paulo: Saraiva, 2009.

[10] LUHMANN, Niklas. Introdução à teoria dos sistemas. Petrópolis: Vozes, 2009.

[11] MELLO, Marcelo Pereira de. A perspectiva sistêmica na sociologia do direito: Luhmann e Teubner. Tempo Social – Revista de Sociologia. USP. São Paulo, v. 18, n.1, p. 351-373, junho.2006.

[12] NEVES, Rômulo Figueira. Acoplamento estrutural, fechamento operacional e processos sobrecomunicativos na teoria dos sistemas sociais de Niklas Luhmann. 2005. 149f. Dissertação (Mestrado em Sociologia). Universidade de São Paulo – USP. São Paulo. 2005.

[13] PUGLIESI, Márcio. Teoria do direito. 2 ed. São Paulo: Saraiva, 2009, p. 57.

[14]  Ob. Cit.: MELLO, Marcelo Pereira de. A perspectiva sistêmica na sociologia do direito: Luhmann e Teubner. Tempo Social – Revista de Sociologia. USP. São Paulo, v. 18, n.1, p. 351-373, junho.2006.

[15] A “Teoria de Sistemas”, cujos primeiros enunciados datam de 1925, foi proposta em 1937 pelo biólogo Ludwig Von Bertalanffy, tendo alcançado o seu auge de divulgação na Década de 1950 (ALVAREZ, 1990).O Sistema é um conjunto de partes interagentes e interdependentes que, conjuntamente, formam um todo unitário com determinado objetivo e efetuam determinada função (OLIVEIRA, 2002, p.35).

[16] Para Imanuel Kant ao tratar sobre o papel do entendimento no processo cognitivo afirma que “conhecer cientificamente é estabelecer relações necessárias ou causais – de dependência – entre os dados ou objetos ao alcance do sujeito, de modo a tornar previsível e controlável o seu comportamento”. Assim, transplantando esse significado para o Direito podemos afirmar que o Direito somente existe porque a sociedade existe e também que o Direito é controlável, pois está ao alcance da sociedade e, portanto é previsível o seu comportamento.

[17] Niklas Luhmann distingue entre contingencia simple, que se refere a las posibilidades ofrecidas por el ambiente físico –hecho – del sistema, y contingencia doble, que tiene encuenta la existência em el ambiente de otros hombres, cuya  conducta y cuyas expectativas  – hecho jurígeno – es  necesario poder prever para el desarrollo de la convivência social (Pilar Giménez Alcover, 1993, 185 ss.).

[18] Polo, Leonardo in “A Critica Kantiana del Conocimiento”, p.47, Ed. Escala: “El tiempo Kantiano funciona como regla; puede, por tanto, aplicarse al espacio, pero no se limita a eso. El tiempo, en la gnosiologia de Kant, está más vinculado al entendimiento, al concepto, que al espacio. Y, efectivamente, es evidente que yo puedo tener un concepto que no existe en el espacio de modo alguno. El triángulo en el espacio es siempre éste o aquél, pero su concepto vale para todos. El esquema del triángulo no es su imagen; es aquello por medio de que el concepto llega a la imagen, pero sin si dejar fijar por ella. En el tiempo como esquema – como regla de construcción – se encuentra, por tanto, la universalidad del concepto. El tiempo de la imaginación se compara con el espacio según la representación; pero, por otro lado y como regla de traza, abarca todos los casos posibles unilateralmente, mientras en el espacio sería necesito multiplicar infinitamente las representaciones” – grifo nuestro – .

 

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