Protective Measures are important tools to protect individuals at risk, with a focus on those affected by domestic and family violence, particularly women and children.
These measures serve as legal safeguards against various forms of harm, including physical, psychological, moral, financial, and sexual abuse.
Legal protection is available in the Maria da Penha Law for women facing domestic violence, in the Statute of the Child and Adolescent for cases involving minors, and in the Statute of the Elder for the protection of the elderly.
The lawyer’s crucial role is necessary due to the urgent need for judicial decisions in these developing cases.
Your actions should be planned strategically to improve the likelihood of the request being approved.
This guide provides instructions on organizing efficient requests, preventing assumptions, and guaranteeing a strategic approach for judicial protection to be effective.
How to speed up the approval of protective measures.
At the beginning of the request for protective measures, the lawyer should arrange paperwork, prepare the petition, and may ask for assistance from the Public Prosecutor if needed to maximize effectiveness.
Next, consider the key elements that need to be taken into account 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 are important for verifying physical or emotional harm, especially for underage or elderly individuals.
- Screen captures of messages, audio recordings, and threatening emails can play a crucial role in digital tests.
- Reports on careers: For issues concerning older individuals.
Initial Petition Format
To illustrate the importance and necessity of the proposed protective measure, it is crucial to provide a coherent and well-organized argument.
- Provide a thorough description of the facts, emphasizing the incidents that demonstrate the danger or harm to the victim.
- Present the primary evidence that supports the necessity for protection, such as newsletters, medical reports, or testimonies.
- Describe the specific dangers to the victim’s physical, psychological, or financial well-being if the request is denied.
- Its main objective is to emphasize the importance of prompt protection through updated legal principles and laws.
Report to the District Attorney.
The Public Prosecutor has the option to enhance the petition and speed up the court ruling, as outlined 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: Step-by-step guidance is sought.
Different methods can be used to make the request, and having a lawyer’s assistance is crucial to ensure swift 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 inform the authorities about what happened and ask for a protective measure.
- Specialized Police Station for Women’s Care is preferred.
- Public Prosecution Service;
- Public Defender;
- Lawyer has the ability to file a request directly with the court.
The police or judicial authority must document the request and start the procedures outlined in the Maria da Penha Law.
Order Completion
When submitted at the police station, the request will contain:
- Identification of the victim and the perpetrator.
- Detailed documentation of experienced violence.
- History of violent behavior and any previous criminal records, if applicable.
- Possible individuals who saw something.
- Additional information that is important to support the necessity of the protective measure.
If the request is submitted by an attorney, it will be lodged directly with the Judiciary along with the required documents and proof.
Order Examination
The judge must review the request and make a decision on granting the protective measure within 48 hours, as stated in Article 18 of Law 11.340/06.
Upon receiving the request from the victim, the judge must review the case within 48 hours, decide on protective measures, refer the victim to legal assistance, if necessary, and inform the Public Prosecutor for further action.
Protective emergency measures can be authorized by the judge, the Public Prosecutor, or at the request of the offender.
In cases of urgent danger, the police can order the immediate removal of the attacker as per Article 12-C of Law 11.340/06, particularly in areas that are not designated as judicial districts and lack available resources.
Registration and Taxation – Sign-up and Taxation
The safeguards provided must be documented in a national database managed by the CNJ, as stipulated by law.
Failure to follow the protective measures is considered a crime, which can result in a prison sentence of 2 to 5 years and a fine, as stated in Article 24-A of Law 11.340/06.
Online Application
In certain states, you can utilize the gov.br system to apply for urgent online protection measures.
The individual enters the system using their CPF and password and completes a thorough form regarding the incident.
The Women’s Care Center can be reached nationwide through Ligue 180 for additional guidance.
Increasing the likelihood of success in seeking protective emergency measures.
The urgent protection measures request is a key legal resource to safeguard victims of domestic and family violence under the Maria da Penha Law (Law No. 11.340/2006).
To ensure that these measures are granted promptly and efficiently, it is crucial for lawyers to implement carefully thought-out strategies when preparing and presenting the request.
We will now outline key strategies to improve the likelihood of success in the application.
- Thorough and comprehensive documentation is crucial for obtaining protective measures. The lawyer must collect and present all evidence demonstrating the risk faced by the victim, such as occurrence reports, detailed accounts, and physical evidence. The stronger and more coherent the documentation, the better the chances of persuading the judge of the necessity of the measures.
- The request for protective measures needs to be legally justified, including specific references to relevant legal provisions like Article 19 of the Maria da Penha Law and its subsections.
- The order should be clear, objective, and specific, outlining the necessary protective measures to safeguard the victim, such as removing the attacker from the home, prohibiting contact with the victim, suspending weapon possession, and protecting the victim’s assets.
- The judge has 48 hours to make a decision regarding the granting of protective measures as per Article 18 of the Maria da Penha Law.
- If protective measures are about to expire and the risk remains, a lawyer can request an extension under Article 19, § 6 of the Maria da Penha Law. In cases of new threats or inadequate existing measures, it is also possible to request a review or addition of new 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, to enhance the request for protective measures and provide the victim with psychosocial and assistance support throughout the legal process.
- After receiving protective measures, the lawyer should assist the victim in understanding their rights and ensure that court orders are being followed. If the aggressor violates the orders, it is crucial to promptly report it to the authorities and request the appropriate sanctions as outlined in Article 24-A of the Maria da Penha Law.
Legal Basics of Protective Measures
Protective measures in Brazil are primarily enforced through the Maria da Penha Law (Law No. 11.340/2006), which aims to reduce and prevent domestic and family violence against women.
Its aim is to ensure the victim’s physical, psychological, sexual, financial, and moral well-being as outlined in Article 226, Section 8 of the Federal Constitution. This mandates the State to provide support to families by implementing measures to prevent violence within their relationships.
The family, which is the foundation of society, is granted special protection by the state according to Article 226 of the Constitution.
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The State must provide support to families by implementing measures to prevent violence within their relationships.
The Maria da Penha Law includes immediate protective measures in Chapter II that a judge can order to ensure the safety of the victim.
Upon receiving the victim’s request, the judge must review it within 48 hours and determine whether to grant the measures or refer it to the appropriate judicial body for further action, notifying the Public Prosecutor as necessary.
Upon receiving the complainant’s request, the judge will make a decision within 48 hours according to Article 18 of the Constitution.
I am aware of the quick solution and the appeal, and I will determine the necessary urgent protective actions.
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How to Prevent Accusations and Autonomy
To improve the likelihood of delaying the protective measure, the request should be clear, well-founded, and supported by evidence.
- Avoid using generic commands; Specify the required measures and link each one to a particular risk scenario.
- Demonstrate the urgent need: Provide clear evidence of the immediate threat posed to the victim, supported by factual evidence.
- Describes why other methods would not adequately safeguard the victim, demonstrating the limitations of less severe options.
Implementation and failure to comply with the measure
- Victim surveillance and monitoring.
- It is crucial to provide guidance to the victim or their legal guardian on the necessary steps to take if there is a failure to comply.
- Instruct the victim to promptly report any new incidents.
- Request for additional police support or surveillance through electronic means.
- Seek preventive detention if there is a failure to comply (Article 313, III of the Criminal Procedure Code).
Protective Measures Against the Aggressor – Different Types
These actions are intended to stop ongoing violence and safeguard the victim across different aspects of their life, from their physical well-being to the protection of their assets.
The main kinds of protective measures that can be used against the attacker are as follows:
- One common action taken to ensure the safety of the victim is to require the aggressor to leave the home or living place they share with the victim. This decision is made to prevent further harm and allows the victim to stay in their familiar surroundings without the attacker present.
- The judge has the authority to forbid the offender from coming near or communicating with the victim, their family, or witnesses through various means like phone calls, messages, or social media to protect the victim’s peace.
- The aggressor may be prohibited from going to certain places like the victim’s home, workplace, or school to protect the victim’s daily life and safety, and prevent confrontations or discomfort.
- The judge can order the provision of temporary financial support for the victim and their children if they rely on the aggressor for financial support. This ensures the family’s well-being while the legal proceedings are ongoing.
- To safeguard the victim’s inheritance, the judge can order the protection of the victim’s assets, prohibiting the attacker from selling, renting, or damaging shared or the woman’s exclusive properties. This action is crucial for maintaining the victim’s financial well-being.
- The law prohibits victims from personally serving subpoenas to the aggressor in order to safeguard them from potential retribution and promote a secure and unbiased legal process.
- In situations where the attacker possesses firearms, the judge can order the immediate confiscation of these weapons and limit the type of arms that can be used. This is essential for decreasing the likelihood of severe attacks or killings, particularly in high-risk scenarios.
Types of Protective Strategies for Victim Safety
The protective measures under the Maria da Penha Law (Law No. 11.340/2006) go beyond restraining the perpetrator’s actions; they also involve various steps to safeguard and support the victim.
These measures seek to guarantee the safety, respect, and independence of women experiencing violence, as well as the welfare of those who depend on them.
The primary forms of protection for the victim include the following:
- Victims and their dependents can be directed to specialized protection and care programs like reference centers, temporary shelters, and psychosocial support services.
- The law ensures the victim’s right to return home after the abuser has left, if needed due to violence.
- The victim can decide to remain in the home with the aggressor removed or imprisoned, or choose to leave the household with their children if there is imminent danger.
- The Maria da Penha Law includes special provisions to safeguard the victim’s assets, such as returning any items wrongfully taken by the perpetrator. This ensures that women are not financially harmed by violence, maintaining their economic security.
- The aggressor may be required by the judge to take part in accountability and re-education programs, along with providing direct protection to the victim.
Protective actions and guarding the children
Protective measures in cases of domestic violence involving minor children can affect custody and visitation rights of the aggressor.
The attorney needs to take into account the following factors:
- Suspension of living with children is a possibility under Article 22, IV of the Maria da Penha Law.
- Requesting temporary supervision of the guardian to prioritize the child or adolescent’s well-being.
- Psychological support is necessary for children when they experience significant emotional effects.
- Monitoring adherence to rules, particularly in instances of parental alienation or efforts to emotionally manipulate the victim or children.
Careful justification of the request, based on the ECA and the Civil Code, could be crucial in safeguarding the minor and preventing detrimental legal disputes.
Duration of Protective Measures: Time limits and options for prolonging them
The Maria da Penha Act (Law no. 11.340/2006) does not specify a set timeframe for how long protective measures should last.
Their exceptional nature necessitates their continuation as long as there is a threat to the victim’s physical, psychological, financial, or moral well-being.
Therefore, it is the responsibility of the judge to determine an appropriate timeframe while considering the principles of proportionality and reasonableness when examining the specific case.
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 length of protective measures is not dependent on the advancement of legal proceedings and can be extended regardless of the classification of violence or police investigation, as outlined in Article 19, Section 5.
Emergency protective measures can be authorized by a judge, the Public Prosecutor, or at the request of the offender under the Maria da Penha Law, without needing the Public Prosecutor’s involvement or a police investigation.
The victim can ask for a review of the measure if the risk situation continues or changes, as stated in Article 19, § 3.
The judge can authorize new urgent protection measures or modify existing ones to safeguard the victim, their family, and their property, as outlined in Article 19, Section 3 of the Maria da Penha Law.
Protective measures are temporary and can be removed or replaced with more effective ones as the situation develops.
Evidence and Proof for Obtaining Protective Measures
Protective measures can be granted based on the victim’s statement without the need for strong evidence initially.
Presenting more evidence can enhance the request and aid in evaluating risk.
Documents like past newsletters, call records, texts, emails, photos, videos, medical and psychological assessments, and witness statements from individuals who have observed or are aware of violent incidents are examples of important evidence.
The proof supports the victim’s statement and shows that there is a threat to his physical, psychological, sexual, financial, or moral well-being.
The judge is more likely to approve the requested protective measures if the evidence provided is thorough and consistent.
Relevant Insights on Preventive Actions
The preventive emergency protective measures under the Maria da Penha Law (Law 11.340/2006) can be given whenever the victim’s safety is at risk.
The application and expansion need to be evaluated based on the particular situation, while adhering to principles of proportionality and reasonableness.
Noncompliance with these measures could lead to the imposition of pretrial detention on the offender, as established by legal precedents.
The Supreme Court (STF) has ruled that not following protective measures could lead to pretrial detention as described.
Non-compliance with protective measures can result in temporary custody being considered as a viable option.
The Superior Court of Justice ruled in Theme 1186 that the Maria da Penha Law also covers transgender women.
The Court established a particular interpretation through its ruling on REsp 2015598/PA.
The presence of a female victim, whether a child or a teenager, triggers the application of Law No. 11.340/2006 (Maria da Penha Law) in cases of domestic violence, thereby excluding the application of Law No. 8.069/1990 (Statute of the Child and Adolescent).
Protective measures should be upheld by the courts as long as the victim is in danger.
The TJDFT, in its ruling on case number 07013106720198070000, made a decision.
Protective measures can continue to be enforced in cases of domestic violence if the risk to the victim and their family members’ physical and mental well-being remains present.
The Judiciary has emphasized the significance of protective measures as a crucial tool for safeguarding victims of domestic violence.
Failure to adhere could result in pretrial detention, and the Maria da Penha Law now offers broader protection to transgender women, promoting increased inclusivity and safety.
Consequences for the Offender: Protective Measures and Criminal Law
Noncompliance with safety measures can lead to legal consequences, so it is crucial for the attorney to understand the potential criminal repercussions for the offender.
- Preventive detention if the measure is not followed (Article 313, III of the Criminal Procedure Code).
- Violating the protective measure can result in a prison term of 2 to 5 years and a fine under Article 24-A of the Maria da Penha Law.
- Conversion of the penalty into legal restrictions.
- The sentence may become more severe in cases of relapse or the presence of new threats and aggressions.
Protective measures within the ECA.
The Child and Adolescent Statute (ECA – Law no 8.069/1990) outlines protective measures to safeguard the well-being of at-risk children and adolescents.
These measures can be implemented under Article 98 of the ECA to safeguard the physical, emotional, and social development of minors when their rights are at risk or infringed.
Measures to safeguard children and adolescents are enforceable whenever the rights outlined in this legislation are at risk or infringed upon.
Society or the State can be held responsible through their actions or lack thereof.
II – due to the absence, oversight, or mistreatment by parents or guardians.
III – because of its behavior.
The ECA offers various protective measures that can be used alone or together, taking into account the individual needs of the child or teenager and emphasizing the importance of enhancing family and community relationships.
Article 101 of the ECA includes various measures.
- Parental or responsible approach: First step involves caregivers signing a responsibility agreement.
- Specialized professionals provide temporary guidance, support, and follow-up to help families overcome challenges.
- Registration and attendance at school are required to ensure children’s right to education, which is crucial for their overall growth.
- Access to social and community support is provided in aid programs to facilitate comprehensive inclusion and protection.
- Be cautious about the overall well-being of the child or adolescent when seeking medical, psychological, or psychiatric treatment.
- In cases of immediate danger, either from an institution or family, measures are taken to remove the child from the harmful environment.
Protective measures may be authorized by the Tutelar Council or decided upon by the judge, depending on the seriousness of the situation.
The Judiciary has sole authority over more extreme actions, like placing individuals in institutions or with families.
Protective actions outlined in the Elderly Statute.
The Elderly Statute (Law no. 10.741/03) offers safeguards to protect the rights and honor of older individuals facing vulnerability.
Protective measures can be implemented in instances involving actions or inaction by society or the state, negligence or abuse by family members or caregivers, or the individual circumstances of the elderly person, similar to the ECA.
The Statute of the Elderly outlines various protection measures that can be granted either individually or in combination.
- Forwarding the family or curator is an initial action that could lead to legal responsibility.
- Professional assistance is available to provide temporary guidance, support, and follow-up for the elderly and their families.
- Health treatment request for outpatient, hospital, or home settings.
- Support for individuals with substance abuse issues may be included in assistance programs when needed.
- Protective measures in situations of danger are implemented at the beginning of an entity’s operation.
- Emergency protection is provided through temporary shelter.
The Elderly Statute strives to ensure comprehensive protection for senior citizens by preventing and addressing instances of violence, neglect, and discrimination.
The Advocate’s Role in Granting and Implementing Protective Measures
The lawyer’s role is crucial during every step of the process for establishing and carrying out protective measures.
Its role includes more than just the original request.
- Provide legal advice to the victim and their family regarding their legal rights and procedures.
- Gathering evidence, testimonials, and legal support to support the petition.
- Interacting with the public and judicial authorities: adhere to the procedural steps and emphasize the importance of taking swift action.
- To make sure that court decisions are followed properly.
- Dealing with non-compliance involves increasing penalties for the perpetrator and enhancing support for the victim.
The lawyer’s role in requesting protective measures necessitates a strategic mindset, quick action, and strong legal backing. A carefully crafted request can be crucial in safeguarding the victim or advocating for the accused.
Stay updated and follow these instructions to enhance your legal practice!
What do protective measures entail and when are they appropriate?
Protective measures are court orders intended to protect victims of domestic and family violence by preventing the perpetrator from making contact or posing a threat. These measures are implemented when 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 ask for a protective measure?
Victims of domestic, family, or vulnerable violence can ask for a protective measure. The request can be made by the victim, a lawyer, the police, or the Public Prosecutor. For minors or elderly individuals, a legal representative or the Public Prosecutor can also make the request.
When is the deadline for providing a protective measure?
The judge needs to make a decision on the application within 48 hours but can grant immediate measures in urgent situations based on the report and evidence provided.
Must the victim file a complaint to receive a protective measure?
It is not always required to file a complaint in order to receive an emergency protective measure, but it can be beneficial in certain situations. Victims can seek protective measures directly from the judge, police station, or Public Prosecutor without having to file a formal complaint. While protective measures can be granted without a complaint, reporting a crime can help strengthen the request and speed up the process.
Can safety measures be revoked?
Protective measures can be lifted or changed when the risk to the victim is no longer present and the judge decides based on the circumstances of the case, following a request from the victim, the prosecutor, or the aggressor. Revocation is not automatic and will only be granted if protection is no longer necessary.
Can the judge issue the protective measure without listening to the perpetrator?
The measure can be granted without the attacker being heard in advance due to the urgency and the need to protect the victim.
Is it possible for the attorney 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 more legal assurance when reporting the events and requesting protective measures in the most efficient manner.
