Transforming State Responses to Feminicide by Fiona Macaulay

Author:Fiona Macaulay [Macaulay, Fiona]
Language: eng
Format: epub
Tags: Social Science, Criminology, Violence in Society, Women's Studies, Penology
ISBN: 9781800715653
Google: 77IoEAAAQBAJ
Publisher: Emerald Group Publishing
Published: 2021-04-21T04:20:29+00:00

JUSTICE DELAYED, JUSTICE DENIED: GETTING FEMINICIDE CASES TO TRIAL

Once the civil police have concluded their investigation into a feminicide, the file is handed over to the prosecutor’s office (Ministério Público – MP), which then decides which charges (denúncias) to bring against the accused. The crime and aggravating elements of the criminal code listed on the charge sheet may not always be the same as those indicated in the police investigation. On balance, the prosecutor’s office is slightly more likely to classify a killing of a woman as a feminicide, possibly because it has an institutional interest in seeking maximum sentences.3 When those charges have been formally filed and the judge has received the prosecutor’s recommendation, the case proceeds to a pre-trial hearing (audiência de instrução). The judge hears the accused and witnesses on both sides and may subpoena additional witnesses or seek further evidence to determine probable cause. The judge’s sentença de pronúncia then confirms that an indictable offence appears to have been committed and the case goes to a jury trial.

On average over a year elapses in feminicide cases between the charging of the accused and the jury trial.4 The notorious sluggishness of the Brazilian judicial system is the result of a number of factors. One is simple bureaucratic inefficiency, that is, cases getting stuck in a drawer somewhere (and for that reason is called tempo de gaveta), awaiting a minor action, such as tracking down a witness or chasing a piece of evidence from the forensic lab. This kind of holdup accounts for around 80% of delays in proceedings.5

Another factor is case overload relative to the number of court staff, as more and more criminal offences have been added to the statute book. The National Justice Council’s data for 2018 showed that there were over 78 million cases pending in the court system, of which 9.1 million were criminal cases (CNJ, 2019b). On average criminal cases were taking nearly four years to move through the system, although jury courts were less backed up than other courts, as they deal only with the more serious crimes against life. Brazil’s code of criminal procedure also allows defence lawyers to use legal loopholes and technicalities and to file multiple petitions as delaying tactics (recursos protelatórios) in the hope that the statute of limitations (prescrição), which is 20 years for homicide cases, will cause the case to time out. These also clog up the court system.

It was such delaying tactics employed by her ex-husband in an attempt to dodge justice that had led to Maria da Penha to take her case to the IACHR. At his first trial for attempted homicide in 1991, he was sentenced to 10 years in prison. However, the appeals lodged by the defence led to the verdict being annulled, and a second trial took place in 1996 in which he was again sentenced to prison. Once more, he walked free, as the defence alleged procedural irregularities in the trial, and their appeal languished in the TJ.6 The IACHR’s 2001 report considered that justice delayed in this way was effectively justice denied.

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