With some delay, the legislator enacted the latest regulation nº 14.344/2022, declaring that its goal is to stop and fight domestic and family violence towards children and adolescents. Perhaps as a result of they weren’t in a position to combat on their very own behalf, children and adolescents solely had a viable mechanism to reinforce the precept of absolute safety after a traumatic episode of violence.
The goal of this transient research is to analyze, when applicable, the similarities between the protection mechanisms offered for in Law no.
If we analyze the construction of the María da Penha regulation, it’s clear that girls victims of domestic violence obtain extra protecting therapy, as within the provisions of articles 27 and 28 which assure authorized help and the presence of an expert with postulancy capability (lawyer) or A member of the Public Defender’s Office) in all acts wherein the feminine sufferer participates creates a real presumption of certified help. Already coated on this column.
An identical provision was not offered in favor of children and adolescents who have been victims of domestic violence, which might have been prolonged by the motion of the Special Curator (Article 72 of the CPC and Article 4, Article 4, XVI of LC nº 80/94). by one other operate (Sensitive pricesFor instance), as a result of this sort of violence and abuse takes place within the family and has the generosity of authorized representatives, which makes the safety of the pursuits of incompetent individuals dangerous.
The participation of the general public defender’s workplace is contained in article 15, in its merchandise II, a timid provision, when the decide decides to ship the particular person liable for the kid or juvenile, when relevant, to a authorized help establishment.
The drawback with this provision is exactly that it doesn’t assist conditions wherein the accountable particular person is concerned within the observe of a prison offense or not less than concerned in a state of affairs of violence, creating a real battle of curiosity, because it factors out to the general public defender in favor of the authorized consultant. help of the workplace and not of the incapacitated particular person himself.
The Code of Criminal Procedure has few provisions for particular curatorship in help of incapacitated individuals, which is topic to registration beneath Section 33 and train of the fitting of grievance (If the sufferer is beneath 18 years of age, or mentally unwell, or mentally handicapped, and has no authorized consultant, or the pursuits of the latter are not in battle with the previous, the fitting of grievance could also be exercised by a particular curator. is , appointed, ex officio or on the request of the Public Prosecutor’s Office by the decide liable for prison proceedings).
However, together with the procedural actuality, the construction of authorized neglect is extra critical, bearing in mind that article 13 of Law No. Child or Adolescent, in order that the establishment can consider the doable intervention in a particular case.
We will discover the insertion of the Public Defender’s Office solely after contemplating the protecting measure beneath the phrases of Article 19, the only paragraph (database entry accessible to the Public Defender’s Office) and Article 18, by subpoena of fundamental acts. A course of associated to aggression.
It is value remembering that Article 4 in its sub-sections XI (use the safety of particular person and collective pursuits of children and adolescents, the aged, individuals with particular wants, ladies victims of domestic and family violence and different weak social teams who deserve particular safety from the state), XV (sponsor non-public prison proceedings and subsidiary to public one), XVI (train particular curatorship in instances offered for by regulation) and XVIII (act in sustaining and repairing the rights of victims of torture, sexual exploitation, discrimination or another kind of oppression or violence, supervision of victims and offering interdisciplinary care) set up related institutional features for the safety of incapacitated victims of prison offenses within the domestic and family context.
We nonetheless discover a framework of normative immunity even in Article 16, when it doesn’t embrace the Public Defender’s Office within the record of authorized individuals succesful of making use of for pressing protecting measures. It appears that the work of the general public defender’s workplace, particularly when excluding the authorized consultant of a toddler or a juvenile sufferer of domestic violence, might be based mostly on interpretive efforts.
It is defined: It is vital to do not forget that children and adolescents, not like ladies victims of violence, are not endowed with advert hoc legitimacy. course ofBecause his illustration or help is critical for an utility in court docket.
Given this example, the postulation in court docket will depend upon the initiative of its authorized representatives and, when non-existent or in a state of battle, on the Office of the Public Defender as Special Curator.
Perhaps extra interpretive effort is required right here.
Considering the desk introduced, Law no. Promoted by article 33 of 14,344/2022, an in depth studying is critical (the procedures regulated on this regulation are utilized subsidiary, the place relevant, the provisions of the regulation Law No. of July 13, 1990. 8,069 (Child and Juvenile Act), 11,340 dated August 7, 2006 (take Maria da Penha), and 13,431 of April 4, 2017), in order that the particular curatorship guidelines offered for in article 142, sole paragraph; 148, sole paragraph, “f” of the ECA and sufferer help pursuant to Articles 27 and 28 of the María da Penha Law, are additionally utilized to procedures wherein children and adolescents are victims of domestic and family violence.
Thus, each baby and juvenile who doesn’t have a authorized consultant or who is in a state of battle of curiosity, from the second a prison offense is registered, should depend on the operation of a particular curatorship to shield their pursuits, kind. Article 142 , a paragraph; 148, sole paragraph, “f” of the ECA is linked to article 33 of Law No. 14,344/2022.
Likewise, in all acts wherein a toddler or juvenile participates, the Office of the Public Defender shall additionally adjust to Law no. 11.3402/2006 beneath the phrases of Articles 27 and 28, Law no. Adequate help needs to be offered together with Article 33 of complete and humane care. .