A reparação do dano e a lei 11.719/2008: análise do inciso IV do artigo 387 do código de processo penal

Abstract

The determination of minimum value in a criminal sentence as civil reparation for damage from an illicit act is a recent issue in the Brazilian criminal justice system. It was implemented by a bill which turned into a legal ruling in 2008, pertaining to the proposed overhaul of the Code of Criminal Procedure. As a new modification of the procedural system, it has generated many controversies surrounding its application. The issue is examined from the point of view of scholars, exploring their divergent understandings. From a forensic perspective, cases of the Brazilian courts are used to illustrate situations in which the standard is applied. Based on the study of reparations in Criminal and Civil Rights, the existing procedural repair systems are described, with emphasis on the autonomy of the courts (criminal, civil and administrative), as well as mentioning the laws of other countries that allow compensation for the harm caused by criminal offenses (felonies and misdemeanors). Reform proposals contained in the 2001 bills, culminating in the publication of the law 11.689/2008, 11.690/2008 and 11.719/2008 are also discussed. It was concluded that the conflicts arising in the doctrine and jurisprudence are common throughout the adjustment period after a legislative reform. The innovation concerning the fixing of minimum indemnity under a criminal sentence is a benefit for the victims of the criminal act and should be used effectively to ensure the satisfaction of the damage endured. In this sense, the other changes that brought to simplify and expedite the criminal proceedings, are also seen as beneficial to society and to preserve public order.