Código de Processo Penal Comentado | Flavio Meirelles Medeiros

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Art. 319. These are precautionary measures other than imprisonment:  (Wording provided by Law No. 12,403, of 2011). 
I – periodic appearance in court, within the period and under the conditions established by the judge, to inform and justify activities; (Wording provided by Law No. 12,403 of 2011). 
II – prohibition of access or attendance at certain places when, due to circumstances related to the fact, the indicted or accused must stay away from these places to avoid the risk of new infractions; (Wording provided by Law No. 12,403 of 2011). 
III – prohibition of maintaining contact with a certain person when, due to circumstances related to the fact, the accused or accused must remain distant; (Wording provided by Law No. 12,403 of 2011).
IV – prohibition to leave the Judicial District when the stay is convenient or necessary for investigation or instruction; (Included by Law No. 12,403 of 2011). 
V – home collection at night and on days off when the investigated or accused has a fixed residence and work; (Included by Law No. 12,403 of 2011). 
VI – suspension of the exercise of a public function or activity of an economic or financial nature when there is justifiable fear of its use for the commission of criminal offenses; (Included by Law No. 12,403 of 2011).
VII – provisional hospitalization of the accused in cases of crimes committed with violence or serious threat, when the experts conclude that he is not responsible or semi-responsible (Article 26 of the Penal Code) and there is a risk of repetition; (Included by Law No. 12,403 of 2011). 
VIII – surety, in the infractions that admit it, to ensure the attendance at the acts of the process, to avoid the obstruction of its progress or in case of unjustified resistance to the court order; (Included by Law No. 12,403 of 2011). 
IX – electronic monitoring. (Included by Law No. 12,403 of 2011). 
§ 1 (Revoked by Law No. 12,403 of 2011). 
§ 2 (Revoked by Law No. 12,403 of 2011). 
§ 3 (Revoked by Law No. 12,403 of 2011). 
§ 4 The guarantee will be applied in accordance with the provisions of Chapter VI of this Title, and may be combined with other precautionary measures. (Included by Law No. 12,403 of 2011).

Important amendments to Law n. 12,403/11

Precautionary measures. An important listing of Law 12,403/11. Of greater importance among the amendments formulated by Law n. 12,403/11 were the various precautionary measures listed in the new wording of Article 319. These are new precautionary measures applicable to the accused. Contrary to what it may seem at first reading, they came to the benefit of the accused, since with them it is possible to replace pre-trial detention with a less onerous precaution that is sufficiently adequate for the desired legal security. By the way, this is precisely the expression of  paragraph 6 of article 282 , when it says that “pretrial detention will be determined when it is not appropriate to replace it with another precautionary measure (article 319)”. In other words, the legislator prefers precautionary measures to preventive measures. Only when the non-detention precautionary measure is not applicable does the preventive measure apply. This conclusion is relevant, that the new personal precautionary measures were created for the benefit of the accused, as it is capable of authorizing a very important conclusion: the enumeration of these measures is illustrative.

Doctrine

Camile Eltz de Lima:  The problem of penal detraction in alternative precautionary measures to prison: from gaps to possible discounts . wunderlich.com.br.

Renato Marcão:  On the applicability of restrictive precautionary measures (arts: 319 and 320 of the CPP)  . Legal Content.

Rogerio Schietti Cruz:  Precautionary measures in the design of the new CPP . senado.leg.br

Rogerio Schietti Cruz :  Criminal Procedural Subsidiarity and Alternatives to Precautionary Prison . metajus.com.br.

Jurisprudence

Need for concrete and individualized grounds for the imposition of precautionary measures provided for in art. 319 of the CPP:  Proper justification — concrete and individualized — is required for the imposition of any of the alternative measures to imprisonment provided for in art. 319 of the CPP. This is because these precautionary measures, although more beneficial, represent a constraint on individual freedom ( HC 231.817 SP, Justice Judge Jorge Mussi, judged on 4/23/2013 – Newsletter No. 0521 ).

The precautionary removal from office cannot be questioned via habeas  corpus published in the DJE of 14-9-2015  – Newsletter 789, First Panel).

Precautionary measures other than prison, although more beneficial, imply restrictions on individual rights, requiring justification for their imposition. Source: jurisprudence in theses (STJ).

Judgments:

HC 302730/PA, Rel. Minister Sebastião Reis Júnior, Sixth Panel, judged on 12/16/2014, DJE 02/05/2015

RHC 042853/RS, Rel. Minister Gurgel de Faria, Fifth Panel, judged on 12/18/2014, DJE 02/02/2015

RHC 037377/SP, Rel. Minister Maria Thereza de Assis Moura, Sixth Panel, judged on 12/09/2014, DJE 12/19/2014

HC 292792/SP, Rel. Minister Felix Fischer, Fifth Panel, judged on 12/02/2014, DJE 12/10/2014

RHC 036443/SP, Rel. Minister Rogerio Schietti Cruz, Sixth Panel, judged on 09/16/2014, DJE 11/27/2014

HC 246582/MG, Rel. Minister Jorge Mussi, Fifth Panel, judged on 02/11/2014, DJE 02/25/2014

Ordinary appeal against excess of precautionary measures established in habeas corpus : It is admissible to file an ordinary appeal to challenge the judgment of the Second Degree Court granting the order of habeas corpus in the event that it is intended to question any excess of precautionary measures established at the time of approval provisional release ( STJ, RHC 65.974-SC, Judge Reynaldo Soares da Fonseca, judged on 3/10/2016, DJe 3/16/2016 – Newsletter n. 579 ).

The precautionary removal of a federal deputy is possible : Exceptionally, the precautionary removal of a federal deputy, defendant in a criminal action for a common crime before the Federal Supreme Court (STF), from the exercise of the parliamentary mandate and the function of president of the Chamber of Deputies ( AC 4.070 REF, rel. min. Teori Zavascki, judgment on 5-5-2016, DJE of 10-21-2016  – Newsletter 824, Plenary).

Money laundry. Drug trafficking. Criminal organization. Possibility of precautionary measures other than prison:  In the event that the subject’s role in the criminal organization of drug trafficking was limited to money laundering, it is possible that precautionary measures other than prison may be applied to him when the organization is found to be unable to continue to act, before the arrest of the members directly responsible for the trafficking ( STJ, HC 376.169-GO, Judge Nefi Cordeiro, Judge for judgment Judge Sebastião Reis Júnior, by majority, judged on 1/12/2016, DJe 14/12/ 2016 – Newsletter 594 ).

Precedent 588 of the STJ. Violence against women and the impossibility of replacing the custodial sentence:  The practice of a crime or criminal misdemeanor against women with violence or serious threat in the domestic environment makes it impossible to replace the custodial sentence with one that restricts rights (STJ, Third Section , approved on 9/13/2017, DJe 9/18/2017 ).

Restrictive measure of incommunicability with the parent/co-defendant. Illegality : Preventive arrest decreed. Substitution for house arrest. Precautionary measure imposed. Prohibition of contact with the other defendants. Provided communication with the sisters/corrés. Incommunicability with your parent/co-defendant. Inappropriate motivation. Flagrant illegality. It is inadmissible to enact the incommunicability of the accused with the parent/defendant as a substitute precautionary measure for imprisonment (…) Federal Constitution. After all, the incommunicability with her parent also strikes, in a fulminant way, the patient’s private and family sphere, without neglecting that even the segregated are allowed the visit of family members (STJ, HC 380.734-MS, Rel. Min. Maria Thereza de Assis Moura, unanimously, judged on 3/28/2017, DJe 4/4/2017 – Newsletter 601 ). 

Feasibility of the HC against precautionary measures other than prison :  It is possible to file a habeas corpus action against illegal coercion resulting from the application or execution of criminal precautionary measures other than prison ( HC 147.303, rel. min. Gilmar Mendes, DJE of 2-27- 2018 ).  

Quick review of items

Quick examination of the items:  The various items are clear, self-explanatory and that is why we provide a brief analysis of each one here. Item I – periodic appearance in court, within the period and under the conditions set by the judge, to inform and justify activities : it is the judge who determines the periodicity. One of the purposes pursued may be that the accused does not flee. Item II – prohibition of access or attendance at certain places when, due to circumstances related to the fact, the accused or accused person must stay away from these places to avoid the risk of new infractions: may be intended to prevent the accused from circulating in the same places frequented by the victim or his family. Having the accused committed the act under the influence of alcohol, another purpose sought may be to prevent him from going to bars where alcoholic beverages are served . Item III – prohibition of maintaining contact with a certain person when, due to circumstances related to the fact, the accused or the accused must remain distant:  precautionary measure used mainly with the aim of preventing the accused from approaching the victim and his family members. It can also be used to keep the accused away from witnesses. Item IV – prohibition to leave the Judicial District when the stay is convenient or necessary for the investigation or instruction: so that the accused can be recognized by the victim or witnesses, as well as to prevent the accused from fleeing. Item V – home confinement at night and on days off when the investigated or accused has a fixed residence and work : its main objective is to keep the accused away from situations that may favor the commission of a crime. Item VI – Suspension of the exercise of public function or activity of an economic or financial nature when there is just fear of its use for the commission of criminal offenses: seeks to prevent the accused from persisting in delinquency when the offense of which he is accused took place in the exercise of public function or in activity of economic or financial nature or even if in these environments it destroys evidence. Item VII  –  provisional hospitalization of the accused in cases of crimes committed with violence or serious threat, when the experts conclude that he or she is not responsible or semi-responsible:  applicable in case the person not responsible or semi-responsible is dangerous. Item VIII – bail, in the offenses that admit it, to ensure attendance at the proceedings, to avoid obstruction of its progress or in case of unjustified resistance to the court order: in addition to the purposes listed in the item, with a view to indemnifying the damage  caused for the offense ( Article 336 ). Item IX – electronic monitoring: one of the most important safeguards. It serves, mainly, as a complement to another precautionary measure (in particular those of items II, III, IV and V), with a view to ensuring its effectiveness. Through electronic monitoring it is possible to specify exactly where the accused was at any time in the past. Monitoring is also used during the execution phase of the sentence, in accordance with provisions numbered 146-B to 146-D of the LEP, in order to control house arrest (authorized by the LEP in the open regime) and during temporary departure. See title  House arrest while serving sentence  under Cases, weighting of risks and proof of requirements , in annotations to article 318.

Jurisprudence

Guarantee without considering the economic capacity of the agent. Defect in the absence of adequate grounds:  The precautionary measure of the bail, maintained without taking into account the economic capacity of the agent, suffers from the defect of lack of adequate grounds ( HC 114.731/SP, rel. min. Teori Zavascki, judged on 1º-4 -2014, judgment published in the DJE of 15-4-2014  – Newsletter 741, Second Panel).

Provision of assistance by the Public Defender allows us to assume the patient’s hyposufficiency. Non-payment of bail by those who are able does not justify precautionary arrest:  The provision of assistance by the Public Defender’s Office makes it possible to assume the patient’s hyposufficiency. If he does not have the financial conditions to pay the bail amount, nothing justifies the imposition of precautionary arrest for this sole reason ( HC 129.474, rel. min. Rosa Weber, judgment on 9/22/2015, judgment published in the DJE of 13 -10-2015  – Bulletin 800, First Panel).

Precautionary measure and detraction of sentence: It is possible to consider the time submitted to the precautionary measure of night collection, on weekends and non-working days, supervised by electronic monitoring, with the time of sentence effectively served, for detraction of the sentence ( HC 455.097/ PR , Judge Laurita Vaz, Third Section, unanimously, judged on 04/14/2021.).

Merely illustrative list and general power of caution of the criminal judge

Exemplary or exhaustive role? The general power of caution of the criminal judge:  The exhaustiveness of the list of precautionary measures in article 319 has been supported. The argument is that the extensive and integrative interpretation are prohibited in criminal procedural law when they result in restriction of the accused’s rights. The criminal judge’s general power of caution is denied. It is stated that the criminal procedure must observe the strict legality and typicality of its acts when it comes to restriction of rights. It is the binding of the judge to the exhaustiveness of precautionary provisions. We reached the opposite conclusion. The criminal procedural norms, when interpreted, must be immanted by the principle of  king favor, that is, in favor of the accused. The criminal judge has general powers of caution. And we advance, a power that even confers the right – yes, the right – to house arrest, instead of prison, to every prisoner in which the preventive measure proves to be more adequate, and sufficient, if carried out at home. It is a consequence of the magistrate’s general power of caution, which must always be exercised in the least burdensome way possible for the accused. Returning to the miscellaneous precautionary measures of the prison. Although they, at first glance, seem to restrict the rights of the accused, in fact they are not. On the contrary, they extend their freedom, insofar as their ultimate purpose is to avoid preventive detention, which is much more restrictive and burdensome to the right to come and go. All precautionary measures other than imprisonment aim, without exception and ultimately, to the same ends sought by the preventive, which demonstrates that they were created to replace it. The general power of caution of the judge is the antithesis of all or nothing, where everything is precautionary named and nothing remains to impose imprisonment. The general power of caution is the authorization of proportionality, fairness and reasonableness. The freedom of action of the subjects of the procedural relationship, among which are the magistrate, the defendant, the defender, the prosecutor and others (in our Brief General Theory of Criminal Procedure we maintain that the procedural legal relationship is not the triangular one of Büllow and Wach, but multiangular), does not transit only through express norms, symbolized in words and texts. It’s wider. The law lies beyond written norms. Literalities are partial expressions of law. The silence of laws speaks louder than their words. Norms, regardless of their expression, are contained in the order and inserted in the general principles of law. The totality of law can only be uncovered through interpretation and integration. The written list of precautionary measures is not exhaustive. Any precautionary measure other than personal imprisonment, not provided for by law, imagined and created by the magistrate, or by the doctrine, may, if it proves to be necessary, adequate and proportional, be applied, provided that it does not violate the legal order and the general principles of law , especially the constitutional ones. It is the power of caution of the magistrate. Now, if even in civil proceedings, where the protected legal interests, in most cases, do not have the same relevance as those protected in the criminal sphere, unnamed precautionary measures are authorized, why could they not be created, invented, authorized, within the scope of the criminal procedure? Neither legality nor taxation are in force in the criminal procedural precautionary law. Criminal precautionary law is necessarily guided by the rule of freedom of the judge, provided that proportionality and necessity are respected. There is no way for the magistrate to efficiently preside over the criminal process without precautionary power. Caution is not pity. It cannot be punished without legal provision ( are unnamed precautionary measures authorized, why could they not be created, invented, authorized, within the scope of criminal proceedings? Neither legality nor taxation are in force in the criminal procedural precautionary law. Criminal precautionary law is necessarily guided by the rule of freedom of the judge, provided that proportionality and necessity are respected. There is no way for the magistrate to efficiently preside over the criminal process without precautionary power. Caution is not pity. It cannot be punished without legal provision ( are unnamed precautionary measures authorized, why could they not be created, invented, authorized, within the scope of criminal proceedings? Neither legality nor taxation are in force in the criminal procedural precautionary law. Criminal precautionary law is necessarily guided by the rule of freedom of the judge, provided that proportionality and necessity are respected. There is no way for the magistrate to efficiently preside over the criminal process without precautionary power. Caution is not pity. It cannot be punished without legal provision ( There is no way for the magistrate to efficiently preside over the criminal process without precautionary power. Caution is not pity. It cannot be punished without legal provision ( There is no way for the magistrate to efficiently preside over the criminal process without precautionary power. Caution is not pity. It cannot be punished without legal provision (no punishment without law). Caution can. The punitive legal system is not unified. The procedural and material legal relations are independent and, although there is interpenetration, they have their own rules. One cannot import principles from one legal complex to another. Cauting is not criminal law, it is criminal procedural law. To punish, the judge is “imprisoned”. Just in case, he’s “free”. In criminal law, the judge cannot impose a sentence below the legal minimum. In criminal proceedings, anything that is less serious than preventive detention is authorized, provided that it is adequate and sufficient for the specific case. Whatever the magistrate “invents” less serious than preventive detention, he is authorized. Especially, if you are careful not to arrest. For the benefit of the accused. If we examine one by one all the typical precautions listed in Article 319, we shall conclude that they were all created for the benefit of the accused. To avoid the greater evil that would imprison him. These are coercive measures aimed at avoiding arrest. An example: Carlos drinks. He drinks and fights. He fights, and whenever he fights, he hurts people and gets sued. He’s collecting personal injury lawsuits. If this continues, his arrest will be inevitable. Practically the requirements of the preventive are already present. The Public Prosecutor’s Office hypothesizes an atypical injunction to attend a group of Alcoholics Anonymous, as a last chance for the accused. One wonders: does the judge not have the power to impose this atypical precautionary measure? Evidently he has. The atypical precautionary measure, like the typical precautionary measure, must be proportionate, necessary, adequate, useful, reasonable and individualized. These are coercive measures aimed at avoiding arrest. An example: Carlos drinks. He drinks and fights. He fights, and whenever he fights, he hurts people and gets sued. He’s collecting personal injury lawsuits. If this continues, his arrest will be inevitable. Practically the requirements of the preventive are already present. The Public Prosecutor’s Office hypothesizes an atypical injunction to attend a group of Alcoholics Anonymous, as a last chance for the accused. One wonders: does the judge not have the power to impose this atypical precautionary measure? Evidently he has. The atypical precautionary measure, like the typical precautionary measure, must be proportionate, necessary, adequate, useful, reasonable and individualized. These are coercive measures aimed at avoiding arrest. An example: Carlos drinks. He drinks and fights. He fights, and whenever he fights, he hurts people and gets sued. He’s collecting personal injury lawsuits. If this continues, his arrest will be inevitable. Practically the requirements of the preventive are already present. The Public Prosecutor’s Office hypothesizes an atypical injunction to attend a group of Alcoholics Anonymous, as a last chance for the accused. One wonders: does the judge not have the power to impose this atypical precautionary measure? Evidently he has. The atypical precautionary measure, like the typical precautionary measure, must be proportionate, necessary, adequate, useful, reasonable and individualized. his arrest will be inevitable. Practically the requirements of the preventive are already present. The Public Prosecutor’s Office hypothesizes an atypical injunction to attend a group of Alcoholics Anonymous, as a last chance for the accused. One wonders: does the judge not have the power to impose this atypical precautionary measure? Evidently it does. The atypical precautionary measure, like the typical precautionary measure, must be proportionate, necessary, adequate, useful, reasonable and individualized. his arrest will be inevitable. Practically the requirements of the preventive are already present. The Public Prosecutor’s Office hypothesizes an atypical injunction to attend a group of Alcoholics Anonymous, as a last chance for the accused. One wonders: does the judge not have the power to impose this atypical precautionary measure? Evidently it does. The atypical precautionary measure, like the typical precautionary measure, must be proportionate, necessary, adequate, useful, reasonable and individualized.

General power of caution. Obligation to undergo medical treatment in the course of the proceedings. Salise Sanchotene: The general power of caution is not punitive. For this reason, article 319 admits extensive interpretation and analogy. The norms of Article 319 are not intended to punish. On the contrary, they aim to avoid the greater punishment that would be the restriction of freedom in prison. Electronic monitoring is intended to prevent arrest. House arrest serves the same purpose. One cannot want to restrict the judge’s freedom to decide, bringing harm to the accused. Salise Sanchotene, federal judge, dealing with the application of medical treatment as a precautionary measure, decided correctly, that is, article 319 is not exhaustive: “With regard to the illegality of the precautionary imposition of psychiatric treatment, at no time was there a violation of article 319 of the CPP and articles 96 and 98 of the Penal Code. This because, the fact of adopting an alternative measure to criminal imprisonment, consisting of psychiatric outpatient treatment, was in no way in the sense of recognizing the semi or unimputability of the defendant, which would obviously require the establishment of the incident of mental insanity, as provided for in art. 149 of the CPP. The list of article 319 of the Code of Criminal Procedure is not exhaustive, and the precautionary norms have an eminently procedural nature and therefore admit extensive interpretation and analogical application to the content of article 3 of the CPP, which culminates in the incidence of the general principles of law in search of the effectiveness of the judicial action. In this case, there is no mention of a decision recognizing the semi-imputability of the accused. By the way, the defendant had full capacity over the illegality of the facts imputed to him.TRF4 – AP 5068165-51.2013.4.04.7100).

Injunction required by the accused against the victim:  The general power of injunction of the magistrate can be exercised in relation to third parties other than the accused. An example is the possibility of determining the withdrawal of people who are disturbing the order of business at the hearing ( articles 794  and  795 ). Since the injunction can be directed at people other than the accused, can it also be directed against the offended party? He can. If he is, for whatever reason, making threats to the accused, for example. Regardless of the measure of the judgment, the accused may or may not require police measures.

Freedom of the press and power of caution:  The offense to the dignity of the citizen through a written or virtual press agency may be subject to caution by means of an injunction. Freedom of the press and opinion is not absolute. The offended person is not always interested in material reparation for offenses against his reputation. There are occasions, and many, when what you want is for the crimes committed against your honor to stop. If there is a crime being committed through the press, the citizen can appeal to the judiciary.

Subjects of the power of caution:  If Mário has been threatened, and the police authority remains silent, it is inconceivable that the legal order leaves him unprotected. He can resort to the precautionary power of the criminal court. And it should be noted: the general power of caution is not directed only at the accused, but also at all the subjects of the process (including witnesses and the offended party – since these can also, among other behaviors, harass the accused, triggering the judge’s duty to maintain the regularity of the process) and also those who, although not participating in the procedural relationship, are, in some way, influencing it and causing damage to its regularity.

Possibility of application before Law 12.403/11: A consequence of the ideas set out in the previous titles is that, even before the amendments to Law n. 12,403/11, all these precautionary measures listed, and those not listed, could already be applied by the judge, as they were already contained within the criminal procedural legal order. Every norm of law stems from the most fundamental principles of order, which are the principles of security and justice. Strictly speaking, only these two principles would need to be expressed, since all the others, implicit in these commands, pre-exist their conception symbolized in the legal text. Hence the conclusion that laws and codes constitute, in the last analysis, a simple clarification of what is pre-existing, as a way of helping and guiding the interpreter and the enforcer of the law. The simple previous prediction of preventive detention already authorized,

Doctrine

Mariana Michelotto:  The electronic anklet as an alternative to the prison system. arnsdeoliveira.adv.br.

ustavo Badaró:  The new precautionary measures alternative to prison and the alleged general power of precaution in criminal proceedings: the impossibility of enacting atypical measures . Badaro Lawyers.

Gustavo de Mattos Brentano:  The application of the principle of insignificance by the Chief of Police .  Criminal Science Channel.

Video

Flavio Meirelles Medeiros: The criminal judge has a general power of caution .

Flavio Meirelles Medeiros: Pretrial detention carried out at home or house arrest

Jurisprudence

Freedom of expression and preliminary suppression of the text:  The proper measure for repairing the possible abuse of freedom of expression is the right of reply and not the preliminary suppression of the journalistic text, even before any more detailed assessment as to its content and harmful potential (Rcl 28,747 AgR, rel. for the ac. min. Luiz Fux, DJE of 11-12-2018

The power of caution to the detriment of third parties: It is possible to set  claims  to the detriment of third parties, not participating in the process, due to delay or non-compliance with an order issued by the Criminal Court ( REsp 1.568.445-PR ), Rapporteur Min. Rogerio Schietti Cruz, Rel. Acd. Min. Ribeiro Dantas, Third Section, by majority, judged on 06/24/2020, DJe 08/20/2020.).

Blocking of amounts deposited in financial agents: It is possible for the criminal court to effect the blocking via Bacen-Jud or the inscription in overdue debt of the amounts arbitrated by way of astreintes ( REsp 1.568.445-PR ), Rapporteur Min. Rogerio Schietti Cruz, Rel. Acd. Min. Ribeiro Dantas, Third Section, by majority, judged on 06/24/2020, DJe 08/20/2020).

Precautions and protection for women, children, adolescents, the elderly, the sick and the disabled

Extension of the Maria da Penha Law:  As established in  article 22, items I to V, of Law n. 11.340/2006 , when the practice of violence against women is verified, the judge may apply, immediately, to the aggressor, jointly or separately, the following urgent protective measures, among others: I – suspension of possession or restriction of possession of weapons, with communication to the competent body, pursuant to  Law No. 10,826  , of December 22, 2003; II – distance from the victim’s home, domicile or place of coexistence; III – prohibition of certain behaviors, including: a) approaching the victim, her family members and witnesses, setting the minimum distance between them and the aggressor; b) contact with the victim, her family members and witnesses by any means of communication; c) frequenting certain places in order to preserve the physical and psychological integrity of the victim; IV – restriction or suspension of visits to minor dependents, after consulting the multidisciplinary care team or similar service; V – provision of provisional or provisional alimony. Failure to comply with these protective measures authorizes the preventive detention of the offender, and this protection (the measures and the arrest of the offender) is extended to children, adolescents, the elderly,article 313, item III ). It should be noted that failure to comply with a court decision that grants an urgent protective measure is a crime provided for in  article 24-A of Law n. 11,340/2006 . The configuration of the crime does not depend on the civil or criminal jurisdiction of the judge who granted the measure.

Doctrine

Cláudia Cruz Santos:  Domestic violence and penal mediation: a possible coexistence? judge.pt/wp-content/ 

Fátima Nancy Andrighi:  Violence against women . stj.jus.br.

Guilherme Nucci:  Domestic violence: a serious matter treated irresponsibly in Brazil . guilhermenucci.com.br.

Leonardo Marconde Machaco:  Disregarding the victim’s will in the Maria da Penha Law is pure procedural violence .  Higher School of Police.

Lidiana Figuerêdo Martins Pinheiro  The international protection of refugee children’s rights  repositorio.ul.pt. 2015

Luiz Flavio Gomes:  38% of the deaths of women in the world are committed by their partners . Legal Content.

Sara Cristina Escalhão Gomes The Protection of Street Children in International Law repositorio.ul.pt. 216   

Taís Schilling Ferraz The importance of working with facts and projecting consequences . Conjure 

Jurisprudence – Domestic violence

Jurisdiction to prosecute and judge criminal action referring to alleged crime of threat committed by daughter-in-law against her mother-in   law crime of threat (art. 147 of the CP) practiced by a daughter-in-law against her mother-in-law in the event that the cumulative requirements of intimate relationship of affection, gender motivation and vulnerable situation are not present ( HC 175.816-RS, Reporting Min. Marco Aurélio Bellizze, judged on 6/20/2013 – Newsletter No. 0524 ). 

Competence of the Court of Domestic and Family Violence against Women:  The fact that the victim is a renowned public figure does not remove the competence of the Court of Domestic and Family Violence against Women to prosecute and judge the crime ( REsp 1.416.580-RJ, Rapporteur Justice Laurita Vaz, judged on 4/1/2014 – Newsletter No. 539).

Inapplicability of the criminal transaction to criminal misdemeanors committed against women in the context of domestic violence:  The criminal transaction is not applicable in the event of a criminal misdemeanor committed with domestic and family violence against women ( HC 280.788-RS, Reporting Min. Rogerio Schietti Cruz, judged on 4/3/2014 – Newsletter No. 539 ).

Establishment of illegal protective measure and habeas corpus:  It is up to habeas corpus to investigate possible illegality in the establishment of an urgent protective measure consisting of the prohibition of approaching victims of domestic and family violence ( STJ, HC 298.499-AL, Rel. Min. Reynaldo Soares da Fonseca, judged on 1/12/2015, DJe 9/12/2015 – Newsletter n. 574 ).

STJ Precedent 542 :  The criminal action related to the crime of bodily injury resulting from domestic violence against women is unconditionally public. Third Section, approved on 8/26/2015, DJe 8/31/2015.

Pretrial detention may be decreed for crimes involving domestic and family violence against women, children, adolescents, the elderly, the sick or people with disabilities, in order to guarantee the execution of urgent protective measures. Source: jurisprudence in theses (STJ).

Judgments:

HC 306070/SP, Rel. Minister Rogerio Schietti Cruz, Sixth Panel, judged on 03/05/2015, DJE 03/12/2015

RHC 051683/SP, Rel. Minister Jorge Mussi, Fifth Panel, judged on 12/18/2014, DJE 02/02/2015

HC 289286/MG, Rel. Minister Felix Fischer, Fifth Panel, judged on 10/02/2014, DJE 10/22/2014

RHC 043425/RS, Rel. Minister Laurita Vaz, Fifth Panel, judged on 03/11/2014, DJE 03/27/2014

RHC 032854/DF, Rel. Minister Marilza Maynard (TJ/SE Judge), Fifth Panel, judged on 02/19/2013, DJE 02/25/2013

HC 246481/DF, Rel. Minister Marco Aurélio Bellizze, Fifth Panel, judged on 09/18/2012, DJE 09/21/2012

HC 220948/DF, Rel. Minister Gilson Dipp, Fifth Panel, judged on 06/26/2012, DJE 08/01/2012

Precedent 536 of the STJ :  The conditional suspension of the process and the criminal transaction do not apply in the event of crimes subject to the rite of the Maria da Penha Law. Third Section, approved on 6/10/2015, DJe 6/15/2015.

Crime of bodily injury practiced in a domestic environment may have the deprivation of liberty substituted by a restriction of rights: It is not possible to replace a deprivation of liberty with a restriction of rights to the person convicted of the crime of bodily injury practiced in a domestic environment ( HC 129.446, rel. Min. Teori Zavascki, judgment on 10-20-2015, judgment published in the DJE of 11-6-2015  – Bulletin 804, Second Panel).

Precedent 600 of the STJ. Domestic violence and non-requirement of cohabitation:  For the configuration of domestic and family violence provided for in article 5 of Law n. 11.340/2006 (Maria da Penha Law) cohabitation between perpetrator and victim is not required ( Third Section, approved on 11/22/2017, DJe 11/27/2017 ).

Mild injury against women in the family context is a crime of unconditional public action:  Review of the understanding of the STJ. Adequacy to the guidance of ADI 4.424/DF – STF. Unconditional public action. Criminal action in crimes of minor bodily injury committed to the detriment of women, in the domestic and family sphere, is unconditionally public ( STJ, Pet 11.805-DF, Reporting Min. Rogerio Schietti Cruz, Third Section, unanimously, judged on 10/ 5/2017, DJe 5/17/2017. Topic 177 – Review – Newsletter 604 ).

Mild injury against women in the family environment . Repetitive theme 177 : Criminal action in crimes of minor bodily harm committed to the detriment of women, in the domestic and family sphere, is unconditionally public. Thesis signed by the Third Section, in the judgment of REsp 1.097.042/DF, judgment published in the DJe of 05/21/2010, which was REVISED: “The criminal action in crimes of light bodily injury committed to the detriment of women, in the domestic sphere and family, is public conditioned to the representation of the victim.”

Precedent 588 of the STJ. Violence against women and the impossibility of replacing the custodial sentence:  The practice of a crime or criminal misdemeanor against women with violence or serious threat in the domestic environment makes it impossible to replace the custodial sentence with one that restricts rights (STJ, Third Section , approved on 9/13/2017, DJe 9/18/2017 ).

Restrictive measure of incommunicability with the parent/co-defendant. Illegality : Preventive arrest decreed. Substitution for house arrest. Precautionary measure imposed. Prohibition of contact with the other defendants. Provided communication with the sisters/corrés. Incommunicability with your parent/co-defendant. Inappropriate motivation. Flagrant illegality. It is inadmissible to enact the incommunicability of the accused with the parent/defendant as a substitute precautionary measure for imprisonment (…) Federal Constitution. After all, the incommunicability with her parent also strikes, in a fulminant way, the patient’s private and family sphere, without neglecting that even the segregated are allowed the visit of family members (STJ, HC 380.734-MS, Rel. Min. Maria Thereza de Assis Moura, unanimously, judged on 3/28/2017, DJe 4/4/2017 – Newsletter 601 ). 313

Fixation and enforcement of precautionary maintenance in criminal court:  Domestic and family violence against women. Food set as a protective measure. Judgment in criminal proceedings. Appropriate title. Default. Civil prison. Possibility. The decision rendered in a criminal proceeding that fixes provisional or provisional maintenance in favor of the partner and daughter, due to the practice of domestic violence, constitutes a legal title for immediate collection and, in case of default, subject to civil imprisonment (RHC 100.446 -MG, STJ, Reporting Justice Marco Aurélio Bellizze, unanimously, judged on 11/27/2018, DJe 12/05/2018).

Domestic violence. Moral damage. Application requirement. Exemption from evidentiary instruction. Repetitive theme 983:  In cases of violence against women committed in the domestic and family sphere, it is possible to set a minimum indemnity amount for moral damage, provided there is an express request from the prosecution or the offended party, even if the amount is not specified , and regardless of probative instruction (R esp 1643051 ms, rel. Minister Rogerio Schietti Cruz, third section, judged on 02/28/2018, DJe 03/08/2018 ).

Misdemeanor in the context of domestic violence and incidence of Law 11.340/2006:  The practice of criminal misdemeanor, in the context of domestic and family violence against women, attracts the incidence of Law 11.340/2006 ( HC 137.888, rel. min. Rosa Weber, DJE from 21-2-2018 ).

Violence committed by the grandson against the grandmother: Once a situation of vulnerability is verified, the Maria da Penha Law applies in the case of violence by the grandson practiced against the grandmother ( AgRg no AREsp 1.626.825-GO , Reporting Min. Felix Fischer, Fifth Panel , unanimously, judged on 05/05/2020, DJe 05/13/2020).

Non-bailable crimes and application of personal precautionary measures:

Personal precautionary measures other than imprisonment for non-bailable crimes:  Also in the case of non-bailable crimes, non-prisonable personal precautions may be applied in place of preventive measures. The Federal Constitution forbids the granting of bail for certain crimes (Art.  5, item XLII of the CF ). This does not mean that provisional release cannot be granted. In view of the provisions of  article 5, item LXI of the CF , by which “no one shall be arrested except in flagrante delicto or by  written and substantiated order of a competent judicial authority” and, furthermore, the constitutional principle of the presumption of innocence, it cannot be given broad interpretation to  article 5, XLII of the CF to prohibit, in addition to bail, also provisional release. The same exegesis applies to the interpretation of infraconstitutional laws that prohibit the granting of bail. There can only be imprisonment prior to the definitive acknowledgment of guilt if the measure is essential. The gravity of the offense alone does not justify provisional arrest. The issue is further discussed in our comments on  Article 323 .

Requirements for personal precautions:  See the heading  Requirements for personal precautions  in annotations to article 282.

Application ex officio or upon request:  See title  Application and non-compliance  in notes to article 282.

Non-compliance with the precautionary measure and decree of the preventive measure:  See this  same subheading  under the heading Application and non-compliance , in notes to article 282.

Jurisprudence

Money laundry. Drug trafficking. Criminal organization. Possibility of precautionary measures other than prison:  In the event that the subject’s role in the criminal organization of drug trafficking was limited to money laundering, it is possible that precautionary measures other than prison may be applied to him when the organization is found to be unable to continue to act, before the arrest of the members directly responsible for the trafficking ( STJ, HC 376.169-GO, Judge Nefi Cordeiro, Judge for judgment Judge Sebastião Reis Júnior, by majority, judged on 1/12/2016, DJe 14/12/ 2016 – Newsletter 594 ).

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