Proof of moral damage is expendable in case of violence against women

March 28, 2018

In cases of violence against women occurring in the domestic and family context, it is possible to set minimum amount of indemnity for moral damage, when there is an express request from the accusation or the offended party, although without specification of the value. This indemnity may be fixed by the criminal judgment and does not depend on specific evidentiary instruction on the occurrence of the moral damage, as it is the presumed damage. The thesis was established by the 3rd section of the Superior Court of Justice in judging repetitive special resources (theme 983) that discussed the possibility of reparation of a civil nature by means of a damning sentence in cases of domestic violence. The decision, taken unanimously, is now guiding the courts across the country in the trial of similar cases. The collegiate began to examine two cases on the subject last year, but the trial was suspended by view request. According to the rapporteur for Special Resources, Minister Rogerio Schietti Cruz, it is not mandatory to produce specific evidence for the measurement of the depth and/or extent of the damage, because "the deserving of indemnity is indispensability to the very condition of victim of violence Domestic and family. " He stated that the damage is in re Ipsa. "The simple relevance of the request expressed in the complaint, in order to ensure the exercise of the adversarial and the broad defence, in my view, is enough for the sentencing judge, from the evidence that led him to the conviction, to fix the minimum value under rep Action of the moral damage caused by the infringement perpetrated, "said Schietti Cruz the minister pointed out that the penal classes of the STJ have already established the understanding that the imposition, in the damning sentence, of indemnity in the case of moral damages for the victim of violence Requires the formulation of a specific application in respect of the guarantees of the adversarial and the broad defence.   According to him, the express request of the public prosecutor or the offended party is sufficient, even if there is no indication of the specific value, so that the magistrate fixes the minimum amount of repair for the moral damages, without prejudice that the person concerned promotes Additional request in the civil area-in that case, it will be necessary to produce proof for the demonstration of the damage suffered. In relation to the exemption from the production of evidence in situations of domestic violence, the rapporteur said that, in the context of the repair of the moral damages, the law Maria da Penha went on to allow a single judgment-the criminal-can decide on quantification that are Related to the pain, suffering and humiliation of the victim, which derive from the criminal practice itself and therefore have difficult measurement and proof. "What is to be demanded as proof, by respecting the rules of due process – notably those derived from the principles of the adversarial and the broad defence – is the criminal imputation itself – under the rule, derived from the presumption of innocence, that the onus proba NDI is wholly of the prosecuting body – because, once demonstrated the aggression to the woman, the psychological damage derived therefrom is evident and does not even have to be demonstrated, "the minister concluded by fixing the thesis of repetitive resources. Legislative evolution to establish the thesis, the minister drew up a historical line of legislative evolution in the last decade in the Brazilian legal system, which had as one of its objectives and results the recovery and strengthening of the victim – and , particularly the woman. One of the evolutionary landmarks of the legislation occurred in 2008, with the inclusion of item V in article 387 of the Code of Criminal Procedure, which went on to fix minimum damage repair value on the occasion of the damning sentence. Despite a certain doctrinal divergence, the rapporteur recalled that the STJ already has peaceful jurisprudence in the sense that the compensation provided for in the device contemplates the two kinds of damage: material and moral. "More robust is still to be such an understanding, to my sense, when it takes care of harm experienced by the woman victim of domestic violence – almost always, but not always, perpetrated by the (ex) husband or (ex) companion – situation where it is natural (by the different Physical constitution) and cultural (by the sexist and patriarchal formation of the Brazilian Society) The vulnerability of the woman, "explained the minister. He also recalled the approval of the Maria da Penha Law and, more recently, the 13.104/15 Act, which amended the Penal code to predict the femicide as a qualifying circumstance for the crime of murder. Tapa and hit-and-run in one of the cases analyzed by the section, a man was denounced for bodily injury on the domestic level. He would have struck a slap in his former, taking her to the ground and, moments later, returned to the scene and ran her over, causing several bodily injuries. The victim presented representation against the aggressor and, by offering a complaint, the prosecutor asked for the fixing of minimum value for the repair of moral damages. In the first instance, the magistrate condemned the defendant to four months of detention and fixed minimum indemnity for moral damages to the victim in the amount of R $3000. The indemnity was, however, removed by the Court of Justice of Mato Grosso do Sul, who understood that there was no specific procedural instruction for fixing the repair and, moreover, concluded that no minimum value was appointed to serve as a parameter for the Defendant's defense. "For the examination of the records, I note that there has been an express request of both the public prosecutor and the victim itself, since the beginning of the deal, that the defendant should be forced to pay minimum compensation for the moral damages borne by the criminal practice, which Derived from the practice of bodily injuries perpetrated in the context of domestic and family violence, "Schietti concluded by restoring the decision of the first instance. With information from the press office of the STJ. Click here to read the menu of one of the features. Resp 1,675,874 resp 1,643,051 Source: www.conjur.com.br