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Supreme Court upheld action of PGR on Maria da Penha Law

Monday, February 13, 2012

By a majority of votes, beating the President, Chief Justice Cezar Peluso, the Plenary of the Brazilian Federal Supreme Court (STF)upheld, at its meeting on February 9, the Direct Action of Unconstitutionality (ADI) 4424, brought by Federal Public Prosecutor’s Office (PGR) referring to articles 12, paragraph I, 16, and 41 of the Maria da Penha Law (Law 11.340/2006).

The majority of the Court followed the vote of the rapporteur, Minister Marco Aurelio in the direction of possibility for the Public Prosecutor to initiate criminal proceedings without representation of the victim.

Article 16 of the Law provides that the public criminal actions "are conditioned to the representation of the victim," but for most of the ministers of the Supreme Court, that fact turns out to empty the constitutional protection guaranteed to women. It was also clarified that is not up to the Special Courts to judge crimes committed under the Law Maria da Penha.

Minister Rosa Weber

The first to follow the rapporteur, Minister Rosa Weber said that requiring the battered woman a representation to open the action undermines the dignity of the human person. "Such conditioning would deprive the victim of satisfactory protection for their health and safety", she said. According to her, it is necessary to establish that for the crimes committed with domestic violence against women, regardless of the penalty imposed, it does not apply the Law of the Special Courts (Law 9.099/1995). Thus, she understood that the crime of slight injury, when practiced with domestic violence against women, is processed through unconditional public prosecution.

Minister Luiz Fux

Following the vote of the rapporteur on the possibility of criminal action based on the Maria da Penha Law begin even without the victim's representation, Minister Luiz Fux said that it is unreasonable to require the woman to make a complaint against the companion at a time of complete emotional fragility due to the violence suffered.

"From the perspective of protection of human dignity, which is one of the pillars of the Federative Republic of Brazil, requiring the need of representation, in my view, turns out to be an obstacle to the implementation of this fundamental right, since protection remains incomplete and insufficient, owing to reveal a symbolic violence and an affront to an immutable clause".

Minister Dias Toffoli

Following the position of the rapporteur, Minister Dias Toffoli stressed that the vote of Minister Marco Aurelio is connected to reality. The Minister said the state is "participant" in the promotion of human dignity, regardless of gender, race and choices, as required by the Federal Constitution. Thus, basing his vote on Article 226, paragraph 8, which states that "the State shall ensure assistance to the family in the person of each of the members, creating mechanisms to suppress violence within their relationships", Minister Dias Toffoli followed the rapporteur.

Minister Cármen Lúcia

Minister Carmen Lucia highlighted the change of mentality by which society passes regarding the rights of women. Citing outdated sayings - as "in fights between husband and wife, do not put the spoon" and "what happens in bed is secret of those who love" - she said it is State’s duty entering the grounds of the "four walls” when in the marital relationship that takes place there also happens violence.

For her, discussions like today's at the Plenary of the Supreme Court are very important in this process. "The interpretation now offered to suit the norm to the Constitution seems to me to be based exactly on better protection of the woman and the possibility, therefore, to give an end to the effectiveness of the state's obligation to restrain any domestic violence. And this that is said today, with some euphemism, and with some care, that we are more vulnerable, is not quite true. In fact, women are not vulnerable, but abused, they are suffering women", he stated.

Minister Ricardo Lewandowski

By following the rapporteur, Justice Ricardo Lewandowski drew attention to issues surrounding the phenomenon known as "addiction of will" and stressed the importance of allowing the opening of the prosecution regardless of the victim pressing charges. "I think we have a legal and psychological phenomenon, that the jurists call addiction of will, known and studied since the ancient Romans. Women, as is shown statistically, do not represent criminal action against the companion or husband by reason of permanent physical and moral coercion and suffering that inhibits the free expression of will", he added.

Minister Gilmar Mendes

Even claiming to have difficulty in knowing whether the best way to protect the woman is to subject to public prosecution conditioned to representation of the victim or the unconditioned prosecution, Minister Gilmar Mendes followed the rapporteur. According to him, in many cases the unconditional prosecution may be an element of tension and family disruption. "But we are here setting an interpretation that, eventually, declaring (the norm) constitutional, we may review, in face of the facts, I will follow the rapporteur", he said.

Minister Joaquim Barbosa

The Minister Joaquim Barbosa, in turn, said that the Constitution deals with certain social groups when recognize that they are in vulnerable situations. For him, when the legislator, for the benefit of these groups, publishes a law that turns out to be inefficient, it is the duty of the Supreme, considering social data, to review policies towards protection. "This is what happens here," he concluded.

Minister Ayres Britto

For the Minister Ayres Britto, in a patriarchal and sexist context, the abused woman tends to go along with the abuser. "The proposal of the rapporteur to remove the mandatory representation from the abused as a condition for bringing the public prosecution seems to rhyme with the Constitution", he concluded.

Minister Celso de Mello

The dean of the Supreme Court, Minister Celso de Mello, also followed the rapporteur. "We are interpreting the law under the Constitution, and in this regard, the Minister-rapporteur has clearly established the significance of the exclusion of acts of domestic violence against women in the normative 9.099/1995 of Law (Law of Special Courts) with all the consequences, not only in procedural terms, but also on the material plane", he said.

For the Minister Celso de Mello, the Maria da Penha Law is so important that, as stated during the trial, it is essential to pay attention to Article 226, paragraph 8 of the Federal Constitution, which establishes the prevention of domestic violence by the State.

Minister Cezar Peluso

The only one to diverge from the rapporteur, the President of the Supreme Court, Minister Cezar Peluso, warned of the risks that today's decision may have on Brazilian society because it is not only the legal doctrine that is divided on the extent of the Law Maria da Penha. Citing studies of various civil society associations and also from IPEA, the STF President pointed to conclusions about the possible convenience of allowing the crimes committed under the Law are prosecuted and tried by the Special Courts, because of the greater speed of their decisions.

"We know that speed is an important ingredient in combating violence, that is, the faster the decision of the cause, the greater its effectiveness. Moreover, the inherent orality to the Special Courts is another important factor because this violence is manifested within the family unit. I was Judge of Family for eight years and I know how these people interact in the presence of the magistrate. We see that there are several aspects that should be considered for solving a problem of great complexity like this", he said.

As to the prevailing understanding that will allow the start of prosecution even if the victim does not have the initiative to report the fellow-offender, Minister Peluso warned that, if conditioning the character of the action was inserted in the law, there were reasons for that. "I can not assume that the legislator has been reckless to establish the conditioned character of the prosecution. He must have taken into account, certainly, evidence brought by people from the area of ​​sociology and human relations, including through public hearings, which have submitted data that can justify this conception of criminal action", he said.

By analyzing the practical effects of the decision, the STF President said that we must respect the right of women who choose not to lodge complaints against their partners when they suffer some kind of aggression. "That means the exercise of substantial core of human dignity, which is the responsibility of humans for their fate. The citizen is the subject of his history, it is the ability to decide for a path, and it seems to me that transpired in this norm now questioned", he said. The Minister cited as an example the circumstance in which the prosecution has begun and the couple, having made peace, be surprised by a criminal conviction.

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