If the order is legal, there is no crime, neither on the part of the hierarchical superior, nor on the part of the subordinate. Indeed, the fulfilment of the latter is covered by strict compliance with the legal obligation, the ground for exclusion of the illegality provided for in art. 23, III of the Criminal Code. Remote control• [Technology] • [Technology] An electronic device used to operate a mechanism or system remotely. = REMOTE CONTROL, REMOTE CONTROL (3) Public law relationship: The hierarchical position which allows the holder to recognise the exclusion of guilt exists only in public law. She is not admitted to the private camp because she does not support the severe and unjustified punishment of those who do not comply with a manifestly illegal order of her superior. When analyzing the legality or illegality of the order, it is necessary to take into account the subjective profile of the executor and not the data common to the average person, since this is a question of guilt that always takes into account the personal circumstances of the agent to conclude whether he is guilty or not. (MASSON, Cleber. Criminal law: General part: Art. 1st to 120th 7th ed.
Rio de Janeiro: Forensics; São Paulo: Method, 2013. V. 1. pp. 511-513). (Enter in original) Also, imagine an order from a police representative to your investigative team to “scare” a boy who made an inappropriate proposal to his girlfriend. In this case, subordinates also comply with an illegal order from their immediate superior. However, the order is manifestly illegal, so everyone should be punished. The author of the order with aggravated penalty (SCC, art.
62, III), and the person who performed it, with a weakened sanction (SCC, Art. 65, III, c, second figure). The principle of legal constraint is found in several provisions of the Federal Constitution, such as article 5, item XVIII, which stipulates that “the creation of associations and, in the form of the law, the creation of cooperatives is independent of authorization and the intervention of the State in their operation is prohibited”. Or, as in Article 37, point XIX, which stipulates that “only a specific law may be created by local authorities and the constitution of a joint-stock company, a semi-public company and an approved foundation (…). 7. [Technology] [Technology] The same as the remote control. Hierarchical obedience is the cause of the exclusion of guilt, based on the inapplicability of various behaviors that occur when a subordinate public official commits a crime after obeying a non-manifestly unlawful order from the superior. According to article 5, item II, of the Federal Constitution, “no one is obliged to do or abstain from doing otherwise than ipso jure”. What is extracted from the operative part is a general and abstract commandment, from which we conclude that only the law can create rights, duties and prohibitions, so that individuals are bound by legal orders, disciplinary of their activities.
While individuals are free to do “almost” what they want, on the contrary, the public administration can only do what is expressly authorized by law. Therefore, all administrative activities must be strictly bound by law, and it is not up to officials to perform acts or activities without legal provision. The principle of legality in criminal law 5. [military] [military] member of an elite military force trained for high-risk special missions; Members of the commandos. “I never have and I will never be part of anyone`s base or command. One of the prerequisites for formulating this legal ground for non-requirement of miscellaneous conduct is, as pointed out above, the existence of a hierarchical relationship between the sender of the order and the consignee, which has always been traditionally reported as being established in the context of the legal relationship under public law (i.e. between agents or officials). Given this, we understand that with the advent of the law No. 13.344/2016 The figure of hierarchical obedience, described in Article 22 of the CP as a legal reason for not requiring different conduct, includes situations in which the hierarchical relationship is (concretely) identified, not only in the field of public-law relations, but also in the context of employment relationships. (ESTEFAM, André.
Criminal law: General part: Art. 1a 120. 9. Aufl. São Paulo: Saraiva Educação, 2020. 332-334). Feira de Santana Correio da Bahia Jerônimo begins the transition and ensures a change in the command of the Secretariat of Public Security Tribuna da Bahia Action of the Armed Forces of the State guarantees Bahia. As regards the principle of legal constraint, we only conclude that the reservation of rights remains a form of control, or even of division of legislative powers. The constitutional text, by reserving certain matters to the treatment of the law, sought to limit the discipline of particular but important matters so that they would not be regulated by any normative species.
However, it is necessary to make certain distinctions between the principle of legality and the principle of legal reserve. The latter would be a “kind” of the principle of legality and should be seen as an attempt by the law itself to control the treatment of certain matters in order to be dealt with exclusively by the law. The principle of legality is a logical consequence of the concept of the democratic rule of law. Because if we are a state governed by the rule of law that guarantees democratic participation, then of course the individual must be guaranteed the right to express his will freely and without hindrance. However, if the assignment is manifestly unlawful, the principal and the executor are responsible for the crime, as competition between agents is called. Both know the illegality of the conduct and contribute to the result. For the hierarchical superior, this is the general aggravating circumstance described in article 62, III, part 1 of the Criminal Code. And with regard to the subordinate, the general mitigating factor according to Article 65, III, “c” (in accordance with the order of the higher authority) of the Criminal Code applies.