Protective Measures are crucial tools for protecting individuals in danger, with a focus on victims of domestic and family violence, particularly women and children.
These measures serve as legal safeguards against physical, psychological, moral, financial, and sexual harm.
Legal protection is available through the Maria da Penha Law, the Statute of the Child and Adolescent, and the Statute of the Elder for cases of domestic violence against women, involving minors, and for the protection of the elderly, respectively.
The lawyer is crucial in these cases due to their emerging nature, as a prompt judicial decision is necessary.
Your actions should be strategic to ensure that the request is well-supported and increases the likelihood of deferment.
You will discover how to create successful requests, prevent assumptions, and take strategic action to guarantee the efficiency of legal protection in this manual.
How to Speed Up the Approval of Protective Measures
During the early phase of requesting protective measures, the attorney needs to arrange paperwork, outline the petition, and if needed, ask for assistance from the Public Prosecutor for better results.
Next, discover the key factors that need to be considered to enhance organization and improve your likelihood of success.
Organization of Documentation
Compiling the following elements is crucial to back up the request for a protective measure.
- This document is essential for emphasizing the current situation.
- Medical and psychological reports confirm the existence of physical or emotional harm, which is crucial for underage or elderly victims.
- Screen captures of messages, audio recordings, and threatening emails can play a crucial role in digital tests.
- Reports on employment opportunities for the elderly.
Initial Petition Format
It is crucial to provide a coherent and well-organized argument to emphasize the importance and necessity of implementing protective measures for the illiterate population.
- Provide a thorough report of the details, emphasizing the incidents that demonstrate the danger to the victim.
- Provide the key evidence supporting the necessity for protection, like newsletters, medical documents, or witness statements.
- Describe the specific dangers to the victim’s physical, psychological, or financial well-being if the request is denied.
- Its primary goal is to emphasize the importance of prompt protection through updated legal principles and relevant laws.
Report to the Public Prosecutor
The Public Prosecutor has the option to enhance the request and hasten the court decision, as stated in Article 19, §1 of the Maria da Penha Law and Article 74 of the Elderly Statute, even though it is not obligatory in every situation.
Protective Measure Request: Sequential Process
The request can be fulfilled through various methods, and having a lawyer’s assistance can be crucial in ensuring prompt and effective protection.
Here is a comprehensive guide on how to ask for protection measures.
Occurrence and Implementation of Protective Measures
The victim needs to report the incident and ask for protective measures from one of these authorities:
- Specialized Police Station for Women’s Care is preferred.
- Public Prosecution;
- Public Defender;
- Lawyers have the ability to submit requests directly to the court.
The police or judicial authority must record the request and start the procedures outlined in the Maria da Penha Law.
Order processing
When submitted at the police station, the request will contain:
- Identifying the victim and the perpetrator.
- Detailed account of experienced violence.
- Violence history and past records, if available.
- Potential observers.
- Additional information necessary to support the need for the protective action.
If the request is submitted by an attorney, it will be lodged directly in the Judiciary with the required paperwork and proof.
Order Evaluation
The judge must review the request and make a decision on the protective measure within 48 hours as stated in Article 18 of Law 11.340/06.
Upon receiving the file with the victim’s request, the judge must review the request, decide on urgent protective measures, refer the victim to the judicial assistance body if necessary, and inform the Public Prosecutor to take appropriate actions within 48 hours.
Protective emergency measures can be authorized by the judge, at the behest of the Public Prosecutor, or upon the offender’s request.
In cases of imminent danger, the police can require the immediate removal of the attacker, as stated in Article 12-C of Law 11.340/06, particularly in non-county seat municipalities without delegated resources.
Registration and Taxation – Enrolling and Taxation obligations
The protective measures authorized must be documented in a national database overseen by the CNJ as a legal requirement.
Noncompliance with the protective measures is considered a criminal offense, which can result in a prison sentence of 2 to 5 years and a fine, as outlined in Article 24-A of Law 11.340/06.
Online application
In certain states, individuals can seek urgent online protection measures using the gov.br system.
The victim logs into the system using their CPF and password, completing a detailed form about the incident.
The Women’s Care Center can be reached nationwide through Ligue 180 for additional guidance.
Strategies for Improving the Likelihood of Success in Requests for Emergency Protective Measures
The urgent protection measures request is a key legal resource to safeguard victims of domestic violence, as outlined in the Maria da Penha Law.
It is important for lawyers to use carefully thought-out strategies when preparing and presenting requests to ensure they are processed efficiently and successfully.
Next, we provide key strategies to improve the likelihood of success in the application.
- Quality documentation is crucial in obtaining protective measures, as it must clearly demonstrate the risk faced by the victim through various probatory elements such as occurrence bulletins, detailed reports, and material evidence. The stronger and more coherent the documentation, the higher the likelihood of persuading the judge to grant the measures.
- The request for protective measures must be legally well-founded, including specific references to relevant legal provisions like Article 19 of the Maria da Penha Law and its sections.
- The order should clearly and objectively outline the necessary protective measures to safeguard the victim, such as removing the home attacker, restricting contact with the victim, halting access to weapons, and safeguarding the victim’s assets.
- The judge must decide on the granting of protective measures within 48 hours according to Article 18 of the Maria da Penha Law.
- If the protective measures are in place but the deadline is near and the risk continues, the lawyer can request an extension under Article 19, § 6 of the Maria da Penha Law. Additionally, if new threats emerge or if the existing measures are inadequate, it is possible to ask for a review or additional measures.
- It is crucial for the lawyer to collaborate with the women’s protection network, including specialized police stations, Public Defenders, reference centers, and temporary shelters, in addition to taking legal action. This collaboration enhances the request for protective measures and guarantees that the victim receives emotional and practical support throughout the proceedings.
- After receiving protective measures, the attorney should advise the victim on their rights and ensure that court orders are followed. If the aggressor violates these orders, it is crucial to promptly alert the authorities and seek enforcement of the specified penalties (Art. 24-A of the Maria da Penha Law).
Legal Basics of Protective Measures
In Brazil, protective measures are primarily established in the Maria da Penha Law (Law No. 11.340/2006), which aims to reduce and prevent domestic violence and violence against women in families.
The goal is to ensure the victim’s physical, psychological, sexual, financial, and moral well-being, as mandated by Article 226, § 8 of the Federal Constitution. This article requires the State to support families by implementing measures to prevent violence within their relationships.
The family, which is the foundation of society, receives special protection from the state according to Article 226 of the Constitution.
I’m happy to help! Please provide the text you would like me to paraphrase.
The government must provide support to families by implementing measures to prevent violence within family dynamics.
The Maria da Penha Law includes emergency protection measures that a judge can order to ensure the safety of the victim.
Upon receiving the victim’s request, the judge must assess it within 48 hours and make a decision regarding the measures requested. The judge may also involve the judicial assistance body and inform the Public Prosecutor for further action.
Upon receipt of the complaint from the victim, the judge will make a decision within 48 hours.
I am aware of the solution and the inquiry, and I will determine the necessary urgent protective measures.
I’m happy to help! Please provide the text you would like me to paraphrase.
Avoiding Accusations and Maintaining Autonomy
To improve the likelihood of delaying the protective measure, the petition should be explicit, well-supported, and based on evidence.
- Avoid making generic requests: Specify the necessary actions and connect each one to a particular risk scenario.
- Demonstrate the immediate danger the victim is in with factual evidence to support the urgency.
- Other solutions are inadequate in providing sufficient protection for the victim.
Implementation and Failure to Comply with the Measure
- Monitoring and observing the victim.
- It is crucial to provide guidance to the victim or their legal guardian on what steps to take if there is non-compliance.
- Advise the victim to promptly report any new incidents.
- Request for additional police support or surveillance through electronic means.
- Requesting preventive detention in the event of non-compliance (Article 313, III of the Criminal Procedure Code).
Protective Measures Against the Attacker’s Different Types
These measures are designed to stop ongoing violence and safeguard the victim in different aspects of their life, from physical well-being to the protection of their property rights.
The main forms of protection that can be used against the attacker are as follows:
- One common action taken is to require the aggressor to leave the victim’s home or living place in order to prevent further harm and allow the victim to stay in a safe environment without the attacker present.
- The judge can forbid the aggressor from coming near or contacting the victim, their family, or witnesses of the aggression. This restriction extends to indirect communication methods like phone calls, messages, or social media to protect the victim from any disturbance.
- The aggressor may be prohibited from going to certain places like the victim’s home, workplace, or school to protect the victim’s normal routine and safety, and prevent potential confrontations or embarrassment.
- In situations where the victim relies on the perpetrator for financial support, the judge can order temporary financial assistance for the victim and their children to ensure the family’s well-being throughout the legal proceedings.
- The judge can safeguard the victim’s assets to prevent harm by prohibiting the aggressor from selling, renting, or damaging shared or the assaulted woman’s personal property, which is crucial for maintaining the victim’s financial well-being.
- The law prohibits victims from delivering subpoenas to the aggressor to protect them from potential retaliation and ensure a safe and impartial judicial process.
- When the offender possesses firearms, the judge may order the immediate confiscation of these weapons and limit the size of weapons to reduce the likelihood of severe attacks or killings, particularly in high-risk scenarios.
Protective Measures to Safeguard the Victim
The protective measures outlined in the Maria da Penha Law (Law No. 11.340/2006) go beyond restraining the perpetrator’s behavior and also involve a range of actions to safeguard and support the victim.
These measures are intended to protect the safety, respect, and independence of women experiencing violence and to safeguard the welfare of their dependents.
The main categories of protective measures for the victim are as follows:
- Victims and their dependents can be directed to specialized protection and care programs like reference centers, temporary shelters, and psychosocial support services.
- Victims have the right to return home once the perpetrator has left, according to the law.
- The victim can decide to stay in the home with the abuser removed or imprisoned, or choose to leave with their children in cases of immediate danger.
- The Maria da Penha Law includes particular actions to safeguard the victim’s assets, such as returning items taken unlawfully by the perpetrator. This step aims to prevent women from enduring financial harm as a result of violence, safeguarding their economic well-being.
- The judge can order the aggressor to take part in accountability and re-education programs, along with providing direct protection for the victim.
Protective actions and the Sons’ Guard
Protective measures granted in cases of domestic violence involving minor children can have a direct influence on custody and visitation rights of the aggressor.
The lawyer needs to pay attention to the following factors:
- Suspension of living with children is a possibility under the Maria da Penha Law (Art. 22, IV).
- Request for temporary regulation of custody to safeguard the child or adolescent’s best interests.
- Minors should receive psychological support for serious emotional consequences.
- Monitoring adherence to rules, particularly in situations involving parental alienation or efforts to emotionally manipulate the victim or children.
Careful consideration of the request, guided by the ECA and the Civil Code, can be crucial in safeguarding the child and preventing unnecessary legal disputes.
Protective Measures Duration: Time limits and options for prolongation
The Maria da Penha Act (Law no. 11.340/2006) does not specify a set timeframe for protective measures.
Their exceptional nature necessitates them to stay in place as long as there is a threat to the victim’s physical, psychological, financial, or moral well-being.
Thus, it is up to the magistrate, when analyzing the concrete case, to set a suitable period, observing the principles of proportionality and reasonableness.
Art. 19, § 6 of the Maria da Penha Law states that:
Protective emergency measures under the Maria da Penha Law will remain in place to safeguard the physical, psychological, sexual, financial, or moral well-being of the victim or their dependents.
The duration of protective measures is not dependent on the advancement of legal actions and can be extended regardless of the type of violence or ongoing police investigation, as outlined in Article 19, Section 5.
Protective emergency measures can be authorized by the judge, upon the request of the Public Prosecutor or the accused, without requiring the involvement of the Public Prosecutor or a police investigation.
The victim has the right to ask for a review of the measure if the risk situation continues or changes, as stated in Article 19, § 3.
The judge can provide additional urgent protection measures or review existing ones, if deemed necessary to safeguard the victim, their family, and their property.
Protective measures are temporary and can be removed or substituted with more efficient ones as the situation develops.
Evidence and proof required for taking precautionary actions
Protective measures can be granted based on the victim’s statement to the police or judicial authority, without the need for strong evidence initially.
Presenting more evidence can enhance the request and aid in evaluating the risk.
Examples of pertinent evidence include past incident newsletters, call records, text messages, emails, images, videos, medical and psychological assessments, and statements from witnesses like family, friends, neighbors, or others with information on the violence.
The evidence supports the victim’s statement and shows the presence of danger to his physical, psychological, sexual, financial, or moral well-being.
The judge is more inclined to approve the requested protective measures if the evidence is thorough and reliable.
Understanding the importance of protective measures
The preventive emergency protective measures outlined in the Maria da Penha Law (Law 11.340/2006) can be issued whenever the victim’s safety is at risk.
Its implementation and expansion should be evaluated based on the particular situation, while adhering to principles of proportionality and reasonableness.
Failure to adhere to these measures could lead to the imposition of pretrial detention for the perpetrator, as established by legal precedent.
The Supreme Court (STF) has ruled that failure to adhere to protective measures may warrant the imposition of preventive detention as outlined.
Failure to comply with protective measures can result in temporary custody being granted.
The Superior Court of Justice (STJ) clarified in Theme 1186 that the Maria da Penha Law extends its protection to transgender women.
The Court established a particular interpretation through the ruling on REsp 2015598/PA.
Female victims, whether children or teenagers, fall under the protection of Law No. 11.340/2006 in cases of domestic violence, which supersedes Law No. 8.069/1990.
Protective measures must be upheld by the courts as long as the victim is still in danger.
The TJDFT, in its ruling on case number 07013106720198070000, made a decision:
In cases of domestic violence, it is deemed acceptable to uphold protective measures as long as the threat to the victim’s and their family’s physical and mental well-being continues.
The Judiciary has emphasized the significance of protective measures as a crucial tool for safeguarding victims of domestic violence.
Non-compliance could result in pretrial detention, and the Maria da Penha Law now covers transgender women, offering increased inclusion and protection.
Consequences for the perpetrator as a result of protective measures and legal action.
Noncompliance with safety measures may lead to legal consequences, so it is crucial for the lawyer to understand the potential penalties for the perpetrator.
- Preventive detention if the measure is not followed (Article 313, III of the Criminal Procedure Code).
- The violation of the protective measure can result in a prison term ranging from two to five years, along with a fine, according to Article 24-A of the Maria da Penha Law.
- Conversion of the punishment into legal constraints.
- Possibility of sentence getting worse in cases of repeated incidents or with the presence of new threats and aggressions.
Protective actions in the ECA
The Child and Adolescent Statute (ECA – Law no 8.069/1990) outlines protective measures to safeguard the well-being of vulnerable children and adolescents.
Article 98 of the ECA allows for the application of measures to protect the well-being and development of minors when their rights are at risk.
Measures to safeguard children and teenagers are applied when the rights outlined in this legislation are at risk or breached.
Society or the State can be held responsible through their actions or lack thereof.
II – due to parents or guardians’ failure, negligence, or mistreatment.
III – because of its behavior.
The ECA offers various protective measures that can be implemented alone or in combination, always taking into account the individual needs of the child or adolescent and emphasizing the importance of enhancing family and community ties.
Article 101 of the ECA includes several measures.
- Initial action involving the signing of a responsibility agreement for caregivers, emphasizing a parental or responsible approach.
- Temporary assistance, support, and monitoring: Specialized professionals provide guidance to help families overcome challenges.
- Registration and attendance at a school are necessary to ensure a child’s right to education, which is crucial for their growth and development.
- Participation in assistance initiatives: Providing access to social and community assistance to enhance comprehensive inclusion and protection.
- Beware of considering the overall well-being of the child or adolescent when requesting medical, psychological, or psychiatric treatment.
- In cases of immediate danger, the minor is taken away from the harmful environment and placed in institutional or family care.
Protective measures can be authorized by the Tutelar Council or decided by the judge, depending on the seriousness of the situation.
The Judiciary is solely responsible for implementing more severe actions like institutional or family placement.
Protective steps outlined in the Elderly Statute
The Elderly Statute (Law no. 10.741/03) establishes safeguards to protect the rights and dignity of elderly individuals facing vulnerability.
Protective measures may be implemented in situations involving actions or inactions of society, the State, the family, guardians, or care organizations, as well as based on the personal circumstances of the elderly, similar to the ECA.
The protection measures can be given individually or in combination, and Article 45 of the Elderly Statute outlines several options.
- Initiating the transfer of responsibility to a family member or guardian is the first step that can lead to accountability.
- Professional assistance is provided to seniors and their families through temporary guidance, support, and follow-up.
- Health treatment requested: for outpatient, hospital, or home settings.
- Aid programs should provide assistance to individuals struggling with substance abuse if needed.
- Protective measure in situations of danger is implemented at the start of an entity.
- Emergency protection is provided by temporary shelters.
The Elderly Statute seeks to ensure comprehensive protection for older adults, aiming to prevent and address instances of violence, neglect, and discrimination.
The Advocate’s Role in Implementing and Enforcing Protective Measures
The lawyer’s involvement is crucial at every step of the process for implementing protective measures.
Besides the original request, its purpose includes:
- Provide advice to the victim and their family by offering legal assistance regarding their rights and the necessary procedures.
- Gathering evidence and legal support to bolster the request.
- Engage with the public and judiciary: adhere to the prescribed procedure and emphasize the importance of prompt action.
- To make sure that court decisions are properly followed.
- Dealing with instances of non-compliance involves implementing measures to increase punishments for the perpetrator and enhancing safeguards for the victim.
The lawyer’s role in seeking protective measures demands a strategic mindset, quick action, and strong legal backing. A carefully crafted request can play a crucial role in safeguarding the victim or advocating for the accused.
Keep yourself updated and follow these recommendations to enhance your legal practice!
What do protective measures entail and when should they be implemented?
Protective measures are legal decisions designed to protect victims of domestic and family violence by preventing the perpetrator from contacting them or posing a threat. These measures are implemented whenever there is a risk to the victim’s physical, psychological, moral, financial, or sexual well-being, as outlined in laws such as the Maria da Penha Law, the Statute of the Child and Adolescent (ECA), and the Statute of the Elderly.
Who is eligible to seek a protective measure?
Anyone who experiences domestic, family, or vulnerable violence can seek protection through a protective measure. The request can be initiated by the victim, a lawyer, law enforcement, or the Public Prosecutor. For minors or elderly individuals, a legal representative or the Public Prosecutor may also make the request.
When is the deadline for implementing a protective measure?
The judge needs to make a decision on the request within 48 hours of receiving it. In urgent situations, certain actions may be approved immediately based on the provided report and evidence.
Is a protective measure required for a victim to report the incident?
Complaint registration is not always required to receive emergency protective measures, but it can be beneficial in certain situations. Victims can seek help directly from the judge, police station, or Public Prosecutor without necessarily filing a report. Protective measures can be granted by the judge even without a formal complaint, but reporting a crime can enhance the request and speed up the process.
Can safety precautions be revoked?
Protective measures can be lifted or changed if the risk to the victim has ended, upon request from the victim, the prosecutor, or the aggressor, and if the judge deems it appropriate based on the case’s circumstances. Revocation is not automatic and requires judicial evaluation, only being granted if protection is no longer necessary.
Is it possible for the judge to approve the protective measure without listening to the assailant?
The measure can be granted without the attacker being heard beforehand due to the urgency and the need to protect the victim.
Is it possible for the lawyer to go with the victim to the police station to report the incident?
Having a lawyer present is strongly advised as it can provide the victim with increased legal assurance while reporting the incident and seeking protective measures more efficiently.
