A inconstitucionalidade da LEI Maria da Penha (LEI N°. 11.340/06).

Abstract

In September 22n d of 2006 was implemented in Brazil the Law N. 11,340, that it deals with the creation of mechanisms to inhibit domestic and familiar violence against woman. The law was named as Maria of the Penha Law, in homage to homonymous cearense that became a symbol of the fight against the domestic violence against the woman. This law, as many others in the criminal field generated and still it generates innumerable discussions about its (un)constitutionality and its effective social applicability. The central note of this research seeks to uncover if the normative framework brought by the novel legislative diploma if coaduna with the going constitutional order, observing if the protective and repressive measures contained in the belly of the Maria of the Penha Law are revealed in instruments capable to fight the domestic and familiar violence against the woman. The research will be in relationship this purely bibliographical aspect; using the observational and deductive methods. The Law Maria of the Penha is the product of the necessity of a differentiated fight for the problem of the domestic and familiar violence against the woman. It was verified that the legislator to identifying the necessity solve this problem choose for the production of a legal system of protection that foresaw innumerable protective instruments, at the same time that lists a series of penal and procedural measures of repressive nature. It occurs that some of these measures (new imprisonment in flagrante modality; judicial renounce of the representation) it does not seem to incorporate the equality and proportionality principles, since they use differentiated doses for the violence's treatment that certainly has the same negative result in the social context - the differentiation of the punishment of a father who beat a son for that one where the same father attacks the daughter its completely different with the principles constitutional already mentioned. It was evidenced at the end that the intention to restrain the violence in the screen did with that it was promulgated a law that violates a series of basic principles of the going constitutional estamento, mainly when it fails in sustain a formal and material isonomy so coveted in the Great Letter. It also leads against the proportionality in the measure in that uses precaution and punitive instruments unconnected with the basic principles that govern the native criminal system.