With some delay, the legislature handed the latest Regulation quantity 14.344/2022, declaring that it goals to stop and take care of home and household violence towards youngsters and youngsters. Maybe as a result of they may not struggle again, youngsters and adolescents had a manner of reinforcing the rule of absolute security after traumatic occasions of violence.
The aim of this brief survey is to research the similarities between the safety mechanisms offered in Regulation No. when applicable.
If we analyze the construction of the Regulation of Maria da Penha, it’s clear that girls who’re victims of home violence obtain a extra protecting remedy, as within the provision of articles 27 and 28 that guarantee authorized help and the presence of an expert with the ability of postulancy (lawyer). or a member of the Public Defender’s Workplace) in all actions by which the feminine sufferer participates, which constitutes a practical estimate of the help assured. already lined on this column.
The identical provision was not offered in favor of youngsters and younger people who find themselves victims of home violence, which might be prolonged by the act of a particular guardian (article 72 of the CPC and article 4, XVI of the LC nº 80/94) and even by one other act (value in dangerfor instance), since such a violence and abuse happens throughout the household and has the sympathy of authorized representatives, to make the safety of the pursuits of the hazard not possible.
The participation of the Public Defender’s Workplace has a worry provision in article 15, in its article II, when it determines the choose to ship the particular person accountable for the kid or adolescent to the authorized assist physique, when applicable.
The issue with this association is exactly that it doesn’t help conditions the place the accountable particular person could also be concerned in against the law or at the least mix it with a scenario of violence, creating an actual battle of curiosity, as a result of it mandates that the help of the Workplace of the Public Defender in help of a authorized consultant and never an individual who can not do it himself.
The help of weak individuals within the Code of Prison Process has a couple of particular administrative provisions, which needs to be registered in article 33 and the train of the proper of attraction (if the sufferer is beneath 18 years of age, or is mentally unwell, or mentally disturbed, and doesn’t have a authorized consultant, or the wants of the final dispute and the earlier ones, the proper of grievance can be utilized by a particular guardian. , appointed, ex officio or on the request, of the Public Prosecutor’s Workplace, by the choose answerable for prison proceedings).
Nonetheless, with the fact of the method, the framework of the omission of legal guidelines is extra critical, contemplating article 13 of Regulation No. baby or adolescent, in order that the establishment can consider doable interventions in a specific scenario.
We are going to obtain the entry of the Workplace of the Public Defender solely after the consideration of the protecting motion beneath the phrases of article 19, paragraph solely (entry to the database obtainable on the Workplace of the Public Defender) and in article 18, with the summons of the primary actions of the Workplace of the Public Defender. consumer associated course of.
It’s price remembering that article 4 in its subsections XI (to guard the wants of people and teams of youngsters and youth, the aged, individuals with particular wants, girls who’re victims of home and household violence and different social teams in danger who deserve particular safety from the State), XV (to help the non-public and subsidiary prison motion of the general public), XVI (to make use of the particular curatorship within the circumstances offered by regulation) and XVIII (the act of preserving and correcting the rights of people who find themselves victims of torture, sexual abuse, discrimination or some other sort of oppression or violence, offering supervision and care of varied packages to victims) to determine institutional actions associated to the safety of victims who’re unable to commit prison offenses within the home and household context.
We nonetheless discover a framework for the same old omission in article 16, when it doesn’t embrace the Public Defender’s Workplace within the checklist of authorized individuals in a position to make requests for emergency measures of safety. It seems that the operation of the Public Defender’s Workplace, particularly within the absence of a authorized consultant for a kid or adolescent sufferer of home violence, will rely upon interpretation efforts.
It’s defined: you will need to keep in mind that youngsters and younger individuals, in contrast to girls who’re victims of violence, usually are not given advert hoc legitimacy. the methodas a result of it’s essential to signify it or assist the applying in court docket.
Resulting from this example, the postulation in court docket will rely upon the motion of its authorized representatives and, within the absence or in a state of battle, within the Workplace of the Public Defender as a particular guardian.
Maybe that is the place an excessive amount of interpretative effort is required.
With regards to the desk offered, an prolonged studying is important, inspired by article 33 of Regulation No. Legal guidelines No. 8,069, of July 13, 1990 (Youngster and Youth Act), 11,340, dated August 7, 2006 (Maria da Penha Regulation), and 13,431, dated 4th April 2017), in order that the particular administrative guidelines offered in article 142, paragraph alone; 148, paragraph solely, “f” of the ECA and sufferer help pursuant to articles 27 and 28 of the Regulation of Maria da Penha, are additionally utilized in procedures the place youngsters and adolescents are victims of home and household violence.
Thus, each baby and adolescent who doesn’t have a authorized consultant or is in a scenario of battle of curiosity should rely, from the time of the registered crime, on the operation of a particular curatorship to guard their pursuits, within the type. of articles 142, one paragraph; 148, paragraph one, “f” of the ECA mixed with article 33 of Regulation No. 14,344/2022.
Equally, in all actions by which a baby or adolescent participates, the Public Defender’s Workplace should present applicable help, beneath the phrases of articles 27 and 28 of Regulation No. .