A aplicação dos institutos despenalizadores da lei dos juizados especiais criminais no âmbito da violência familiar e doméstica contra a mulher: a posição do Supremo Tribunal Federal frente ao princípio da proporcionalidade

Abstract

The depenalization rules from Special Courts Law are not applied anymore since the law nº 11.340/06, also known as “Maria da Penha law”. Many legal discussions have lead to constitutional lawsuits at the Supreme Federal Court of Brazil. These constitutional lawsuits are concerned about the constitutionality of many rules from law nº 11.340/06, especially its article 41, that excludes familiar and domestic violence crimes against women from Special Courts Law’s efficacy, regardless the sanction legally specified. Brazil’s Supreme Court has declared the law constitutional in Habeas Corpus nº 106/212 – from state of Mato Grosso do Sul, in Constitutionality Declaratory Action nº 19 – from the Federal District of Brazil and in Inconstitutionality Direct Action nº 4424 – from the Federal District of Brazil. This work’s task was to examine women’s rights historically until the “Maria da Penha” law, as well as examine constitutionality decisions from Brazilian Supreme Federal Court about the aforementioned article 41, especially wether these decisions observed constitutional principle of proportionality and its corollaries of adequation, necessity and proportionality in a strict sense. The study was developed through bibliographical research, performed by means of books, monographies, doctorate and LLM thesis, legal magazines and articles, legislation, judicial decisions and public websites. The work has concluded that Supreme Court of Brazil’s decisions have offended particularly the legal principle of necessity and woman’s self-determination of will. Both the Brazilian Supreme Court’s decision and the Legislative Power, by abolishing depenalizing rules in the field of domestic and familiar violence against women, were unreasonable and, thus, offended constitutional principle of proportionality.