(Feb. 15, 2012) On February 9, 2012, the Brazilian Federal Supreme Court ruled unconstitutional article 16 of the Brazilian Women's Protection Law (Lei Maria da Penha, Lei No. 11,340 de 7 de Agosto de 2006,PLANALTO.GOV.BR), which required that legal action (representação) against an offender be taken by the victimized woman (art. 16).
The direct action of unconstitutionality (Ação Direta de Inconstitucionalidade) was brought before the Court by the Attorney General of the Republic (Procurador Geral da República), who argued that articles 12(I), 16, and 41 of Law No. 11,340 were unconstitutional because the only interpretation of them compatible with the Constitution was that this type of crime must be subject to an unconditional public prosecution action (ação penal pública incondicionada), whereby the Public Office (Ministério Público) can take action independently of the victim's own legal action. (Ação Direta de Inconstitucionalidade (Med. Liminar) No. 4424 [Direct Action of Unconstitutionality (Preliminary Injunction) No. 4638] (June 4, 2010), Federal Supreme Court website.)
According to the Attorney General of the Republic, Law No. 11,340 violates the constitutional principle of human dignity (Constituição da República Federativa do Brasil [C.F.], art. 1(III), PLANALTO.GOV.BR (last visited Feb. 9, 2012)), fundamental rights of equality (C.F. art. 5(I)), punishability of any act of discrimination against fundamental rights and liberties (C.F. art. 5(XLI)), and the prohibition of poor protection of fundamental rights and the duty of the government to deter and prevent violence within the family (C.F. art. 226(§8)).
Minister Marco Aurélio wrote the majority opinion of the Court, which stated that it is possible for the Public Office to initiate criminal proceedings without the requirement of the victim's taking initial legal action, which had been required under article 16 of Law No. 11,340. In the view of most of the Ministers of the Court, such a requirement weakens the constitutional protection guaranteed to all women. The Court also decided that Special Courts (Juizados Especiais) do not have jurisdiction to try crimes that fall under the scope of Law No. 11,340. (Supremo julga procedente ação da PGR sobre Lei Maria da Penha, Supremo Tribunal Federal website (Feb. 9, 2012).)
Law No. 11,340 was enacted for the purpose of reducing domestic violence against women. It was nicknamed Lei Maria da Penha to honor a victim of domestic violence who became a paraplegic as a consequence of several attempts her husband made against her life.
Representação refers to a complaint presented to the police by the victim or his or her legal representative, giving rise to an accusation (denúncia) of crime subject to public prosecution action (ação pública). (4 MARIA HELENA DINIZ, DICIONÁRIO JURÍDICO 169(4)(b) (São Paulo, SP, Editora Saraiva, 2005)).
A direct action of unconstitutionality is the route by which, without injury to an individual right, there is the establishment of a procedure to identify whether any statute (law or federal or state normative act) is contrary to constitutional standards; such an action of unconstitutionality invalidates the statute. (1 DICIONÁRIO JURÍDICO, supra at 57, 58). A declaratory action of constitutionality (Ação Declaratória de Constitucionalidade), by contrast, aims to obtain a definitive declaration of the constitutionality of a norm that conforms to the Constitution. (Id. 45.) Law No. 9,868 of November 10, 1999, provides the trial procedures for these types of actions (PLANALTO.GOV.BR).
The Federal Supreme Court has original jurisdiction to try and to decide direct actions of unconstitutionality of a federal or state law or normative act and declaratory actions of constitutionality of a federal law or normative act (C.F. art. 102(I)(a)). This mandate somewhat resembles the power to issue advisory opinions, a power that is not accorded to the Supreme Court of the United States, which will only hear a matter on the basis of an actual case or controversy (U.S. CONST. art. III, § 2, amended by U.S. CONST. amend. XI).
The Attorney General of the Brazilian Republic is the head of the Public Prosecutor's Office of the Union (C.F. art. 128(§1)). Article 103(VI) of the Brazilian Constitution provides that the Attorney General can bring direct actions of unconstitutionality and declaratory actions of constitutionality. T he Public Prosecutor's Office consists of the Federal Prosecutor's Office, the Public Prosecutor's Office of Labor, the Military Public Prosecutor's Office, and the Public Prosecutor's Office of the Federal District and Territories (C.F. art. 128(I)(a)-128(I)(d)).
An unconditional public prosecution action is a complaint filed by the Public Office, not subject to any outside interference or initiative nor admitting any legal action or ministerial request; the Public Office has exclusive jurisdiction over it (1 DICIONÁRIO JURÍDICO, supra at 81). In Brazil, the Public Office is a permanent institution, “essential to the jurisdictional function of the state, charged with the duty of defending the legal order, the democratic regime, and inalienable social and individual interests” (C.F. art. 127).