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Supreme Court declares the constitutionality of Article 41 of Maria da Penha Law

Unanimously, the Plenum of the Brazilian Federal Supreme Court (STF) declared, on Thursday (24), the constitutionality of Article 41 of Law 11.340/2006 (also called Maria da Penha Law), which rejected the application of Article 89 of Law 9.099/1995 (Small Claims Courts Law) with regard to crimes committed with domestic violence against women, making impossible the implementation of the institutes decriminalized therein, as the conditional suspension of proceedings.

The decision was made in the trial of Habeas Corpus (HC) 106.212, where Cedenir Balbe Bertolini, convicted by the court of Mato Grosso do Sul to the penalty of restricting freedom for 15 days, converted into the alternative penalty of provision of community services, contested this condemnation. Cedenir was punished under Article 21 of Law 3.688 (Criminal Misdemeanor Law), accused of having fired slaps and shoves into his partner. Before the Supreme Court, the defense had appealed unsuccessfully to the Court of the State of Mato Grosso do Sul (TJ-MS) and the Superior Court of Justice (STJ).

In the HC, which questioned the last of these decisions (STJ), the Public Defender (DPU), which acted on behalf of Cedenir in the trial, argued that Article 41 of the Maria da Penha Law was unconstitutional because it would offend the Article 89 of Law 9.099/1995.

This rule allows the prosecutor to request a stay of proceedings for two to four years, in crimes where the minimum penalty is equal to or less than one year, provided that the accused is not being processed or has not been convicted of another crime.

The DPU has argued, too, the court that sentenced Cedenir lacked of jurisdiction, because when it comes to a less offensive violation, the jurisdiction for the trial would be up to a special criminal court, as provided in Article 98 of the Federal Constitution (FC), and not the special court for the woman.



All justices present at the plenary session - to which was present also the head of the Special Secretariat of Policies for Women, Iriny Lopes - followed the vote of the rapporteur, Justice Marco Aurelio, for the denial of the HC.

According to the Justice Marco Aurelio, the constitutionality of Article 41 gives concreteness, among others, to Article 226, paragraph 8 of the Federal Constitution (FC), which provides that "the State shall ensure assistance to the family in the person of each of the members, creating mechanisms to prevent violence in their relationships”.

Marco Aurelio said the rule is consistent with what proposed Ruy Barbosa, according to whom the rule of equality is to treat unequals unequally. Because a woman, when suffers violence at home, is in a position unequal before man.

He dismissed, also, the argument that the court with jurisdiction to trial criminal Cedenir would be a Small Criminal Claims Court, because of the low offensiveness of the crime. Justices pointed out that violence against women is serious, because not only limited to the physical aspect, but also the emotional and psychological state, which are badly shaken when she is a victim of violence, with consequences often indelible.



By following the vote of the rapporteur, Justice Luiz Fux said the Special Courts for Woman have greater agility on trials and allow more extensive investigations of domestic aggressors, making use, including, of the hearing of witnesses.

In turn, Justice Dias Toffoli reminded the historical inequality that woman has suffered in relation to man. So much that, by 1830, the Brazilian criminal law came to allow a man to kill his wife when he found her in adultery. However, as noted, Brazilian law has evolved and found its culmination in the 1988 Constitution, which provided in its text the equality between man and woman.

However, he said, there must be affirmative action in order that the formal law becomes material law. Therefore, he advocated the daily insertion, in the media, of affirmative messages against violence against women and of family empowerment.

In the same way voted Justice Carmen Lucia, noting that the violence that women suffer at home affects their psyche (self esteem) and their dignity. "Law does not combat prejudice, but its manifestation”, she said. "Even against us there is prejudice”, she noted, referring to herself, to Justice Ellen Gracie and the vice attorney general, Deborah Duprat. And this prejudice, she said, manifests, for example, when a car driven by a man pulls up alongside the official car in which they find themselves, when a startled look discovers that the passenger in the official car is a woman. "Shame and fear are the greatest affront to the principles of human dignity, because we have to rebuild every day in the face of it," she concluded.

Also voted following the rapporteur Justices Ricardo Lewandowski, Joaquim Barbosa, Ayres Britto, Gilmar Mendes, Ellen Gracie and Chief Justice Cezar Peluso. They all endorsed the principle of unequal treatment of women, given its historical inequality before the men inside home.

Justice Ricardo Lewandowski said the lawmakers, when voten on Article 41 of Maria da Penha Law, clearly said that the crime of domestic violence against women is of greater offensive power. In turn, Justice Joaquim Barbosa agreed with the argument that Maria da Penha Law sought to protect and promote the development of the nuclear family without violence, without submission of women, helping to restore their freedom, thus ending the patriarchal power of man at home.

Ayres Britto described as "fraternal constitutionalism" the philosophy of removing prejudices, enclosed in the Constitution of 1988, citing Articles 3 and 5 of the Constitution. Gilmar Mendes, who also voted with the rapporteur, considered "legitimate this institutional experiment”, represented by Maria da Penha Law. He said domestic violence against women "derives from a deplorable domain situation”, caused usually by the woman's economic dependency.

Justice Ellen Gracie recalled that Maria da Penha Law was issued when she chaired the National Judiciary Council (CNJ) and involved an impetus to the establishment of special courts for women.

In conclusion, Chief Justice Cezar Peluso said that Article 98 of the Constitution, when defined the jurisdiction of special courts, did not defined less offensive criminal violations. Therefore, he said, an infraconstitutional law is allowed to define what such a violation is.


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