The mixed and hybrid criminal courts of Brazil: Mainstreaming restoration,rehabilitation and community justice in a human rights context

Abstract

In Brazil, minor to mid-level criminal offences are dealt with through an inventive community problem-solving paradigm that sees a shift from traditional court engagement between the accused and state towards a therapeutic process that involves all participants in the justice process. This article considers the work of the Domestic Violence and Special Justice Courts of Brazil, by examining their use of a mixed and hybrid adversarial-inquisitorial criminal procedure that supports a participatory model of community and problem-solving justice in a human rights context. The article argues that this hybrid and mixed approach to criminal justice allows for the mainstreaming of problem-centred and community justice through the adoption of human rights measures that afford justice to all participants in the criminal justice process. This approach sees the forging of relationships between traditional and non-traditional justice stakeholders, specifically victims, police, the judiciary, defendants, the community and service providers, as a central rather than alternative pathway to justice. Importantly, this innovative criminal procedure as a standard response to crime provides for longer-term community building by engaging victims and the accused through a range of informal processes that support admonishment of wrongdoing and conciliation between the victim, offender and community, albeit more serious matters invariably proceed directly to trial. Lessons from this mixed and hybrid model for adversarial jurisdictions attempting to better integrate problem-solving justice follow.

Keywords

Brazil criminal procedure non-adversarial justice restorative justice community justice

Introduction

The last decade has seen the rise of a multitude of problem-solving courts, and in common law and western states, most jurisdictions now afford accused persons some access to intervention or problem-solving justice by referral or transfer from a central criminal court. Such intervention provides therapeutic benefits that divert the accused from normative punitive options for treatment and rehabilitation. The processes may also afford greater opportunity for the engagement of the victim in the criminal process, and may allow for community building by engaging the accused in alternative processes such as conferences or circles with the police, victim and community representatives. Brazil has mainstreamed such systems for the disposal of minor to mid-level offences, with Domestic Violence and Special Justice Courts of Brazil handling a significant number of criminal offences apart from those most serious offences that must, as a matter of policy, proceed direct to trial.¹ Intentional crimes against life (murder, attempted murder, assisted suicide, infanticide and abortion) proceed before a seven-person jury in the main trial courts of each state, and other serious non-fatal offences (robbery, theft, corruption, rape, money laundering, drug trafficking, possession of weapons, and torture) proceed before the main trial courts constituted by a judge sitting alone.² Thus, with exception of these more serious crimes, all criminal matters proceed before the Domestic Violence and Special Justice Courts as permanent first-instance courts. The Domestic Violence and Special Justice Courts of Brazil are thus not diversionary courts, but the main criminal courts through which a very significant number of minor to mid-level criminal offences are processed. These criminal courts of Brazil therefore present as an important and pace-setting example of the mainstreaming of problem-solving and community justice, available to victims and offenders, that seek to resolve crime in the community context in which it occurs.

Brazil is a republic of 26 states not including the federal district of Brasília, with a federated criminal justice system. Criminal procedure in Brazil is, however, mostly administered by the states, and all states have numerous Domestic Violence and Special Justice Courts situated throughout their jurisdiction. The criminal justice procedure of Brazil is best characterised as a mixed and hybrid system of justice developed out of the civil European approach (as to mixed and hybrid systems generally, see Dickinson, 2003; Kim, 2010; Kirchengast, 2010; Nouwen, 2006; see also Council of Europe, 2017), with significant reforms from international law and procedure through regional frameworks including the inter-American human rights system following the American Convention on Human Rights. Such procedure differs from the usual treatment of victims before adversarial, common law courts, where they present as witness for the prosecution only. Even civil law, inquisitorial processes may limit victim standing, not for want of law or process but because the culture of prosecution lies with the state (see Braun, 2019). Yet across the Brazilian community courts, a hybrid process affords greater access to justice for all parties. This is because Brazilian criminal justice is open to alternative processes that depart from normative adversarial and inquisitorial processes, and court processes invariably utilise aspects of both systems. Not being ascribed as either adversarial or inquisitorial means that justice processes are open to nuanced ways of dealing with crime, free from the restrains of both systems, which has arguably led to the use of problem-solving and community engagement as main processes by which crime is responded to. This article argues that such hybrid and problem-centred processes are central to the progressive work of the criminal courts of Brazil because they facilitate new and ongoing relationships between traditional and non-traditional justice stakeholders, specifically victims, police, the judiciary, defendants, the community and service providers. Such hybrid processes have also allowed for the ratification of human rights instruments that further foster a problem-solving approach (see Spieler, 2011).

The Domestic Violence Court was constituted in 2006 and handles all crimes of a domestic character (see Batista et al., 2007; Campos, 2015; Dias, 2007; Spieler, 2011). Invariably, this means any crime against a woman in a domestic context, other than the intentional crimes against life which proceed before the main trial courts. Thus, serious offences of interpersonal violence and rape may even be dealt with by the Domestic Violence Court. The procedure of the court departs from standard criminal procedure by engaging the accused and victim in dialogue in proceedings and seeking the views of the victim during trial. It allows for the ongoing supervision of the accused by the judge both during trial and following conviction, while utilising therapeutic and counselling options for the accused and victim. Where the accused fails to comply with an order of the court, the accused will be summonsed to court and subject to admonishment processes, which may also involve the victim. This may occur, for instance, due to a failure to stay away from the victim or the victim’s home or place of work. Admonishment may result in a range of new penalties or revised conditions, and will ordinarily involve the consent of the victim, where they choose to participate.

The Special Justice Court was constituted in 1995, and comprises courts of general criminal jurisdiction that hear and determine all non-domestic minor crimes (see Azevedo, 2000; Costa, 2012; Wunderlich, 2012). Minor to mid-level crimes proceed before the court. The court utilises conciliation between victim and offender as the first procedural stage to facilitate timely resolution of complaints. Conciliation may end in agreement or apology, which may then end the matter. A conciliator, a social worker, psychologist or criminal justice specialist, may make other recommendations, including counselling of the parties, reparation, or repair of damaged property, as agreed between victim and offender. Conciliation may proceed even where the offender is unwilling to admit the offence. Clearly, where the offence is denied, the chance of conciliation failing is far higher, although agreement may still be reached on aspects of the offending, and through direct and supported dialogue, offenders may come and make admissions that they were at first disinclined to make. However, where conciliation fails and where the matter is determined by a judge of the court as being of a sufficiently serious character to warrant determination at trial, the matter proceeds before a full hearing of the court. Importantly in this model, the victim retains discretion throughout and may withdraw their complaint and end the matter, during conciliation or even where more serious and unresolved matters proceed to trial. The most serious matters may be taken over by the prosecutor as unconditional public matters, whereby the victim lacks the capacity to modify or withdraw the complaint.

The approach adopted across the courts of Brazil therefore evidences a way of moving beyond what Langer (2014) identifies as the long shadow of inquisitorial and adversarial procedure on comparative criminal procedure, essentially that we continue to exist within the jurisdictional milieu of each system. Analysis of the Domestic Violence and Special Justice Courts presents a way of arguably overcoming this shadow to assess ways in which the virtues of different systems may be integrated to transcend the normative assumption of the superiority of one system over the other, and the traditional divide between them, thus:

Instead of starting by asking which system, adversarial or inquisitorial, is normatively superior, we should start by asking which principles and goals we value in the criminal process and then discuss the best ways to implement those principles and goals in specific jurisdictions. (Langer, 2014: 911)

The problem-solving and community justice courts of Brazil therefore fit within a broader context of the opportunities and possibilities available in mixed and hybrid systems of justice, together with the benefits of resolving crime in a way that facilitates individual rehabilitation in a community-building context. The resocialisation of the offender to community standards, through the inclusion of the victim in informal procedural stages where the offender must address the concerns of the victim, as validated by the conciliator or judge, connects with the resolution of crime in a community context. The ratification of key human rights instruments and measures affords justice to all parties, and ensures the accused does not escape conviction where it is due, particularly in relation to domestic and family violence which is manifested in private (see Rouseff et al., 2016).

A vast literature heralds the merits of non-adversarial justice and alternative court processes that bring victim, offender and community together in ways not possible during nominal criminal trial proceedings (Archilles and Zehr, 2015; Bazemore and Dooley, 2015; Berman and Feinblatt, 2001, 2005; Crawford and Clear, 2015; Donoghue, 2012; Gil, 2008; Goldstein, 1987; Kaye, 2004; King et al., 2009). This literature recognises the risks and benefits of such justice, for the accused, the victim and the broader community (Braithwaite, 1989). The benefits embrace nuanced restorative and therapeutic processes that expose the offender to the voice of the victim and community, making palpable the extent of the harm caused while creating opportunities for remedy, redress and personal rehabilitation. The risks include the denial of due process afforded by fair criminal trial, albeit, in the Domestic Violence and Special Justice Courts of Brazil, counsel is afforded at each step, and is even available for the less formal procedural stages, including conciliation, although this step encourages direct communication between victim and offender. Further, and specific to any process where victims are encouraged to meet with their offender, victims may be at risk of secondary victimisation, although the capacity for the judge to intervene and even protect the rights of the victim consistent with inquisitorial practice helps protect against this.

This article argues that the hybrid and mixed approach to criminal justice in Brazil allows for the mainstreaming of problem-centred and community justice in the context of innovative approaches to justice that see the specific needs of offenders and victims dealt with in a non-adversarial way. This approach sees the forging of relationships between traditional and non-traditional justice stakeholders, specifically victims, police, the judiciary, defendants, the community and service providers, as a central rather than alternative pathway to justice. Importantly, the mainstreaming of a problem-solving criminal procedure in Brazil provides for long-term community building by bringing victims and the accused together through a range of processes, from conciliation through to trial. Informal processes support admonishment of wrongdoing and conciliation between the victim, offender and community, and more serious matters proceed to trial. This paper begins by assessing the western concept of problem-solving justice through the community court model before turning to a more detailed exposition of the Domestic Violence and Special Justice Courts of Brazil. The rise of problem-solving justice and its general principles are then considered with a view to understanding how western systems can learn from developments in community prosecution and treatment, as based on a mixed and hybrid adversarial and inquisitorial criminal procedure that ratifies human rights instruments empowering a range of otherwise marginalised or excluded justice stakeholders.

Problem-solving and community justice

Problem-solving justice may be defined as an attempt to depart from conventional court processes for alternative solutions that engage stakeholders and an array of service providers in a particular area or jurisdiction. Stakeholders may be defined as any individual with a vested interested in proceedings. Nominal stakeholders would vary from offence to offence, but would usually include the defendant, police, prosecutors, victims, the broader community, lawyers, service providers, the judiciary and the courts. Thus, we see the rise of specialty courts that depart from the conventional interaction between state and accused before an impartial judge or magistrate for courts as a site of therapy and welfare intervention that encourage the interaction between victim, accused, police, prosecutors, the judiciary and service providers, mainly during pre-trial and sentencing processes. In western common law systems, the advent of drug courts in the late 1980s provided the first signs of specialty courts that sought to purposefully depart from the normative constraints of the adversarial criminal trial (see Berman and Feinblatt, 2001). Under such processes, drug dependent offenders could be diverted from standard sentencing processes for treatment programmes supervised by the courts themselves. Controversial at first, these programmes soon founded new ways of sentencing that challenged the tenets of adversarial justice as requiring a judicial officer that was necessarily independent and removed from proceedings, for one that sought to continuously monitor the health and wellbeing of the accused, with the assistance of the prosecution, defence counsel and service providers, all of whom took on new roles to accommodate the shift from punishment to continuous treatment.

In the western adversarial context, problem-solving courts first appeared in Florida in the United States in 1989 in the form of a drug court. Since then, problem-solving courts have emerged throughout the United States and the common law world. Certain states, such as the State of New York, have significantly developed their use of problem-solving and specialist courts (Berman, 2000; Berman and Feinblatt, 2005; Center for Court Innovation, 2020; Kaye, 2004). The Red Hook Community Justice Center in Brooklyn features as a leading example of such a model (Lee et al., 2013). Problem-solving justice is founded on a commitment to therapeutic processes that seek to rehabilitate the offender by disrupting offending and repairing the harm to the victim and community. Therapeutic justice takes a divergent path to traditional legal problem-solving, which is more concerned with the argumentative nature of orthodox processes (Wexler, 1999). The rise of problem-solving courts in the State of New York as a means of including all agents of justice, specifically, the defendant, state, community, victim, and support organisations, provides a case in point in the western context. Problem-solving courts thus vary depending on the needs of offenders or victims and the therapeutic outcomes sought (see King et al., 2009). Some courts are available only where the offender pleads guilty, while others are constituted as trial courts that seek to divert all offenders from normal adversarial proceedings. As a starting point, however, problem-solving courts, including those in western states and those in Brazil, seek to use the authority of the court to address a range of practical and policy issues, specifically, the needs of individual defendants, and the structural issues of the criminal justice system, in the context of the broader problems of communities (Berman and Feinblatt, 2001).

The Domestic Violence and Special Justice courts of Brazil find their concomitant in the rise of the community courts in the common law states because both depart from a criminal procedure that is strictly identifiable as either adversarial or inquisitorial. Like the courts of Brazil, community courts do not necessarily require a guilty plea in order for an accused to access such courts. Similarities between the criminal courts of Brazil and the problem-solving courts of, for instance, the State of New York, lie in the way these courts are accessible as first-instance courts, where accused and victim may access court based and social services without a specific plea. Once the accused makes their plea, the accused and victim move into the associated criminal process consistent with that plea; however, access to social and community services continues under the supervision of the court. This style of court fragments a narrowly construed judicial function as arbiter of law and, where relevant, fact, to better engage with the accused and victim in the local community context. By focusing on specific offences or problems within the community, problem-solving courts seek to disrupt the localised causes of criminal offending, while supporting victims and accused through a course of ongoing therapy and court-based supervision (see Berman and Feinblatt, 2001: 158). Aside from New York State, such programmes have been piloted in England and Wales, with a more permanent community court being established in Melbourne, Australia (Ministry of Justice, 2005, 2009; as to the Melbourne experience, see Murray, 2009).

Problem-based justice has been identified as an important complement or adjunct to orthodox adversarial processes, but is not readily identified as a suitable replacement for such processes within the broader criminal justice system of western states (Feldthusen, 1993). It is therefore important that we examine the processes, including those of alternative systems on a comparative basis, that allow for the mainstreaming of problem-solving justice as a standard response to criminal wrongdoing, as the usual rather than alternative pathway to justice.

The domestic violence courts of Brazil

Domestic violence against women has been a matter of growing awareness in Brazil for over a decade. Despite increased efforts on the legislative level, Brazil occupies fifth position in the world’s ranking of homicide against women, behind El Salvador, Colombia, Guatemala and Russia. At least 50% of those crimes are committed by a family member, more frequently by the victim’s male partner (Rouseff et al., 2016).

Brazil became a signatory to the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women in 1996 (Convention of Belem do Pará).³ According to the Convention, violence against women constitutes ‘a violation of their human rights and fundamental freedoms, and impairs or nullifies the observance, enjoyment and exercise of such rights and freedoms’, as well as ‘an offense against human dignity and a manifestation of the historically unequal power relations between women and men’. Hence, the elimination of domestic abuse is essential for women’s individual and social development, and their full and equal participation in all spheres of life. Under the Convention, Brazil agrees to condemn all forms of violence against women and to pursue, by all appropriate means and without delay, policies to prevent, punish and eradicate such violence; for instance: applying due diligence to investigate and impose penalties for violence against women; adopting legal measures to require the perpetrator to refrain from harassing, harming, intimidating or threatening the victim; and establishing fair and effective legal procedures for victims, which include protective measures and effective access to restitution and reparations.

Origins of the Brazilian domestic violence courts: the case of Maria da Penha v Brazil before the inter-American commission on human rights

On 22 September 2006, Brazil introduced ground-breaking legislation on domestic violence against women: Federal Law 11,340, known as the Maria da Penha Law. The name of the law is a tribute to a notable figure in the fight for women’s rights in Brazil: Maria da Penha Maia Fernandes, whose ex-husband attempted to kill her twice, resulting in her paraplegia on the first attempt and her non-fatal electrocution on the second. The Brazilian justice system took 19 years to convict Maria da Penha’s ex-husband and he remained free during this period.⁴ For reasons of delay, Maria da Penha reported the case to the Inter-American Commission on Human Rights of the Organization of American States (OAS), claiming that Brazil had violated the Convention of Belem do Pará by failing to ‘take the effective measures required to prosecute and punish the aggressor, despite repeated complaints’ (Spieler, 2011: 6). The Commission concluded that Brazil repeatedly tolerated domestic violence against women, neglecting to afford women access to justice and timely investigation of complaints, across the country:

Given the fact that the violence suffered by Maria da Penha is part of a general pattern of negligence and lack of effective action by the State in prosecuting and convicting aggressors, it is the view of the Commission that this case involves not only failure to fulfil the obligation with respect to prosecute and convict, but also the obligation to prevent these degrading practices. That general and discriminatory judicial ineffectiveness also creates a climate that is conducive to domestic violence, since society sees no evidence of willingness by the State, as the representative of the society, to take effective action to sanction such acts. ( Maria da Penha Maia Fernandes v Brazil, 2001)

The OAS recommended changes to Brazilian legislation to guarantee complete, fast and effective criminal investigation; to grant the victim appropriate procedural recognition, with compensation for the violence suffered; to end the condoning of such violence by the government of Brazil; and to stop further discrimination against women. The report of the Inter-American Commission states that Brazil should undertake measures to train and raise the awareness of justice officials, including the judiciary; to develop a specialised police force, including specialised police stations resourced to support domestic violence victims; and to simplify criminal proceedings to deal with complains in a timely manner, without affecting the rights and guarantees of due process owed to the accused.

Criminal proceedings in the Brazilian domestic violence courts

Brazilian Federal Law 11,340/2006 (the ‘Maria da Penha Law’) created mechanisms to restrain and prevent domestic violence against women, providing for the foundation of Domestic Violence Courts and establishing measures for the assistance and protection of women where domestic abuse is alleged.⁵ Under the Maria da Penha Law, the distinct forms of domestic violence against women, specifically physical, psychological, sexual, patrimonial and moral violence, constitute human rights violations actionable by the police and in court. Accordingly, several important procedural changes, ranging from police interaction with suspects through to court processes, were required to be created or modified to effectively deal with cases of domestic abuse against women (Batista et al., 2007).

Domestic violence and police assistance

The ‘Police Department Specializing in Women’s Protection’ was created in 1985 after complaints about the way women were treated in normal police stations. Women also complained that they felt unsafe in these mostly male environments. Although the victim has the option to attend any police station, the small number of specialised police stations and the lack of general (non-specialised) police preparedness to deal with domestic violence offending means that many women in Brazil continue to be discouraged from seeking help (Campos, 2015).

Adequate police training on domestic violence intervention is supported by the Maria da Penha Law, which includes a specific chapter on assistance provided by the police in cases of domestic violence against women. Timely police intervention is thus an important procedural step that supports the work of the Domestic Violence Court. Article 11 of the Maria da Penha Law states that the police must guarantee police protection to the victim; direct the victim to the hospital or health centre and to the Legal Medical Institute; provide the victim and her dependents with transportation to a shelter or safe place if their lives or physical integrity are at risk; accompany the victim to assure removal of her belongings from the crime scene or from the family home; inform the victim about the rights legally conferred to her; and notify the victim of services available that can pursue a remedy where those rights are infracted. In all cases, after registering the report, the police take a statement from the victim, collect evidence that can serve to establish an offence and its circumstances, request a forensic medical examination of the victim, and take a statement from the accused and any relevant witnesses, to form a record to open criminal proceedings.

The jurisdiction of the Domestic Violence Courts

The Maria da Penha Law authorises the creation of first-instance Courts of Domestic and Family Violence against Women, in which judges are commissioned on the basis of their aptitude to deal with domestic violence matters, with expertise in criminal cases and civil causes that extend to family issues (alimony, separation, and custody of children). Those judges must understand the varying contexts and consequences of violence against women (physical assault, injury, rape, threat, intimidation, theft, and related civil and family matters) perpetrated by a man or woman⁶ in at least one of three contexts: crimes committed in a family relationship, crime in a domestic setting, or crimes where the parties are in an intimate relationship. However, the jurisdiction assigned by the Constitution to the accused’s right to jury trial for certain serious matters such as homicide,⁷ and the prerogative constitutionally granted to certain political authorities,⁸ prevail over the jurisdiction of the Domestic Violence Court.

One central limitation of the Domestic Violence Court is that the victim must be female, or identify as female. This limitation was subject to constitutional challenge before the Supreme Federal Court of Brazil, based on the compatibility of the provisions of Maria da Penha Law with the principles of gender equality and fair access to justice for all (see Dias, 2007). The Federal Supreme Court held that differences in treatment on the basis of gender were justified because of the special context that domestic violence often proceeds against women as a particularly at-risk group, without unreasonably restricting the rights of the male population.⁹ However, the courts recognise the application of the Maria da Penha Law between female same-sex couples¹⁰ and against transsexual victims,¹¹ albeit effective policing of these vulnerable communities remains fringe at best, because of the marginalised status of lesbian, gay, bisexual, transgender, intersex and asexual (LGBTIA) relationships and victims in Brazil.

Urgent protective measures

The Domestic Violence Courts are responsible for many criminal proceedings with most matters taking months or years before determination of the final sentence (Campos, 2015: 417). As such, urgent protective measures are often required to ensure the victim’s safety before final orders are imposed.

Upon request by the Prosecutor’s Office or by the victim, urgent protective measures may be granted by the judge, without a full hearing of the parties (Articles 18 and 19).¹² Some of the urgent protective measures specified by the Maria da Penha Law include: suspension of the accused’s possession of a weapon or licence restrictions on the same; removal of the accused from the family home, so that the victim and her dependents may return safely; minimum distance restrictions on approaching the victim, a member of her family and/or a witness; prohibition of contact with the victim, members of her family and/or a witness through any means of communication; directing the victim and her dependents to an official or community programme for protection or assistance; and restitution of property unduly taken from victim by the accused (Articles 22 and 23).¹³

Once urgent protective measures are granted, they must be communicated to the accused as soon as possible to give the accused the chance to submit a written response to the court, including the production of any exculpatory evidence, to modify or quash any unfair or unsupported restrictions (Article 31). At the request of the parties, including the prosecution, the victim or the accused, court may proceed to order a report from a psychologist or social worker to assess the nature of the conflict. Such reports are more common where the parties dispute key facts or allegations, or where the complexity of the case requires more in-depth psychosocial evaluation (Article 31).

The protective measures may be applied in addition to existing orders, and may be reviewed or replaced by orders of greater effectiveness, whenever the victim’s rights are threatened or violated. The law does not set a maximum period for the duration of the protective measures, although the court will usually maintain the order so long as the victim continues to be at risk.¹⁴ Where the accused fails to comply with an order, they will be summonsed to court for an admonitory hearing, where the court hears from the accused as to why they failed to comply with an order. Counsel may support the accused. If substantiated, the court will agree to further restrictions against the accused to prevent further infraction. The court may issue a warning, send the accused for counselling or refer to a support agency, impose a fine, or, where warranted, place the accused in preventive custody.¹⁵ The order to remand the accused must be revoked where the victim no longer requires incapacitation of the accused.

Rights assigned to victims under the Maria da Penha Law

Victims must be supported by counsel in all proceedings before the Domestic Violence Court. This applies to criminal as well as civil proceedings. Access to the services of the Public Defender are ensured where the victim cannot afford her own lawyer (Article 27). The victim maintains the right to be kept informed of the status of the accused, including their custodial status (Article 21). As was common before the enactment of the Maria da Penha Law, the victim cannot be ordered to engage with the accused against her will.

The victim’s deposition and demeanour may be recognised by the court as proof of alleged abuse, since domestic violence against women occurs, as is generally the case, in the intimacy of the home without the presence of witnesses.¹⁶ However, the court requires that the victim’s testimony should be corroborated by other evidence – for instance, medical records from hospital or healthcare centres – in the case of physical aggression.¹⁷ Despite this, the fact that a number of decisions against the interests of the accused proceed on the basis of the victim’s testimony continues as a matter of concern as regards the presumption of innocence perspective, which, in Brazil, is provide by constitutional guarantee (Lopes, 2010: 646).

The Maria da Penha Law requires a hearing before the judge and prosecutor should the victim seek to discontinue proceeding against the accused (Article 16). The purpose of this hearing is to enable the judge and prosecutor to ascertain whether the victim’s withdrawal of the complaint is of her own free volition, or whether she is being coerced or compelled by the accused or another party. On the other hand, the victim cannot be pressured to continue with the procedure, which occurs, for example, when the prosecutor threatens to charge her for false notification of a crime if she proceeds with the discontinuance. In practice, the court and prosecutor may use this special hearing to disregard the will of the victim to continue the prosecution in the public interest.

The Maria da Penha Law prescribes that the physical and mental integrity of the woman, including her privacy, be safeguarded throughout proceedings. Nevertheless, in practice, the women can be subject to secondary victimisation because of several factors, specifically: court complexes that do not have separate entrances or waiting rooms to prevent interaction between the victim and accused; and, despite specialised training, judges, prosecutors and lawyers unprepared to deal with the complex psychosocial dynamics common to familial violence. Thus, the oppressive discourses of male hegemony that support male violence in the first instance are recreated in the physical environs of the courtroom, and the personnel who staff them (Barros, 2013).

No conciliation for minor offences where domestic violence alleged

Article 41 of Federal Law 9,099/1995 provides that conciliation before a Special Justice Court is not available where domestic violence is alleged. Therefore, police may arrest the accused to proceed before the Domestic Violence Court even where the allegation may be otherwise characterised as a minor offence. Intervention by the public prosecutor to proceed with a criminal prosecution where battery against the woman is alleged becomes independent of the victim’s will to proceed or not.¹⁸

The Maria da Penha Law also imposes more serious penalties in the case of conviction for domestic violence against women. Once guilt is established, the Law restricts the range of penalties ordinarily available to a judge of a first-instance court. Such minor penalties, including substitution of the sentence for a reparative act or offering, such as agreeing to make pecuniary restitution or provide a basic food basket to the victim, is precluded (Article 17). Since domestic violence against women is now considered a human rights violation, it cannot be treated in the same way as a minor crime (cf. Porto, 2007: 39). This distinction is now ratified in the criminal process of Brazil.

Audiência de fortalecimento: reasserting the role of the victim in a ‘strengthening hearing’

Although advances have been made for victims of domestic violence over the last decade, the Maria da Penha Law has not yet achieved the result of substantially reducing domestic violence against women in Brazil.¹⁹ Instead, the 2006 reforms have been criticised as possibly exacerbating the problem of mass incarceration, and incarceration of socially and economically vulnerable people in particular. Providing restrictions against the accused in accordance with state intervention and a public policy requiring police and state action removes the possibility of informal resolution through police mediation and discretion. Instead, the accused will be arrested and subject to court processes. However, reliance on admonishment proceedings and recourse to restorative intervention in the pre-trial period arguably disrupts continuing offending, and provides for a less punitive approach to the problem.²⁰ Prison must remain the last resort (Campos, 2015; Porto, 2007).

Where the accused repeatedly fails to comply with restrictions ordered against them, an accused may proceed to an audiência de fortalecimento or ‘strengthening hearing’. This is a discrete measure improvised by a Domestic Violence Court judge in Belo Horizonte in 2017.²¹ This hearing provides an enhanced opportunity for the victim to communicate how their repeated non-compliance aggravates the pain, suffering and oppression felt by her, to encourage compliance with existing or further orders. The victim may participate personally or through a letter to be read at the hearing. The role of the accused is limited in such hearings, and they are not granted a right of reply. Other than compliance with orders, the broader object of this hearing is to restore the victim within the relationship, by freeing the woman from her submissive role, and to allow her to come to terms with the violence that she has experienced.

Given that this process has recently been improvised, although compliant with admonishment processes that support the summonsing of the accused to face the consequences of their non-compliance with previous orders, the fairness of this procedure in which the accused is required to remain silent is yet to be determined. It is therefore likely to be subject to legal challenge at a future point.

The Special Justice Courts of Brazil

The Constitution of the Brazilian Republic, promulgated in October 1988, states under Article 98(I) that the Federal Government should create a specific branch of courts for the timely resolution of disputes. This power takes present effect through the Special Justice Courts. Such courts, according to the constitutional provision, retain a civil and criminal jurisdiction to best dispense with cases. The constitutional provision of ‘minor complexity cases’ grants jurisdiction to the Special Justice Courts for civil matters, while the provision for ‘minor crimes’ grants jurisdiction over minor to mid-level criminal matters, and includes such matters as simple assault or drug use.

The constitutional provisions requiring the establishing of a Court of Special Justice have been interpreted as supporting a court comprised of processes of lesser formality than otherwise expected of the main trial courts. The Court of Special Justice thus provides for more timely processing of cases, to afford the victim and accused access to justice and to encourage swift restoration of the conflict giving rise to the complaint. Significant here is the inclusion of an informal procedural step that encourages informal dispute resolution between the parties. Cases can be processed with fewer procedural phases, using informal processes including conciliation, as an important first step (Tourinho Filho, 2010: 11–16).

Origins of the special criminal courts of Brazil

Despite constitutional support from 1988, such courts only came into operation following enactment of the court’s powers and procedures at the federal level. Thus, state laws, such as Law 1,071/1990 of the State of Mato Grosso do Sul, promulgated on 11 July 1990, and Law 5,466 from the State of Paraíba, promulgated on 26 September 1991, sought to create such specialised courts on their own motion, without federal support. The Supreme Federal Court, however, decided such state laws were unconstitutional, instead requiring enactment by the Federal Congress to ensure a standard court, with consistent powers and procedures, which would apply to the whole of Brazil.²² Therefore, the constitutional provision remained without effect until the promulgation of Federal Law 9,099/1995 on 26 September 1995. This statute created the Special Justice Courts at the Federal Level, as they apply to and are administered by the individual states of Brazil.

Jurisdiction of the special criminal courts of Brazil

Law 9,099/1995 gives the Special Justice Courts a criminal and civil jurisdiction, with rules and processes of the former prescribed under chapter I, with the latter provided under chapter II. Chapter I sets out the objects of the statute, being the principles that guide the court’s processes, specifically orality, simplicity, informality, procedural economy and timeliness of decision-making, with a focus on agreement by conciliation at each stage of proceedings. Article 62 repeats the same principles (except, curiously, simplicity) as applying to criminal proceedings specifically, and states that the process should seek, as much as possible, reparation of damages suffered by the victim. Prison remains a last resort, which is only available where conciliation fails and the matter, being of a more serious character, proceeds through to trial, conviction and sentencing. It is clearly a justice system designed for simpler cases,²³ that can be resolved quickly and with fewer formalities, when compared to ordinary justice before the main trial courts.

Federal Law 9,099/1995 provides for the class of cases that may be brought before the court, including the definition of ‘minor crime’. Under Article 61, ‘minor crimes’ carry a maximum sentence of not more than two years’ imprisonment, whether or not accompanied by fine. Federal Law 11,313/2006 expanded the class of matters that could be dealt with by the Special Justice Court, with the original threshold restricting the maximum sentence to one year’s imprisonment. Preclusions include serious offences that proceed before the ordinary trial courts; where there are multiple charges the sentences of which accumulate to more than two years (Article 61); when the complexity of the case is incompatible with the objects of the Special Justice Courts (Article 77); or when the accused is not summonsed (Article 66). Federal Law 11,340/2006 further precludes all offences against women in a domestic context, which proceed before the specialised Domestic Violence Courts (see above discussion).

The Special Justice Courts’ jurisdiction for ‘minor crimes’ includes, for instance, simple physical injury (Article 129 of the Criminal Code), threat (Article 147 of the Criminal Code), crimes against honour (libel and slander) (Articles 138–140 of the Criminal Code) and drug use (Article 28 of Law 11,343/2006).

Criminal proceedings in the Special Justice Courts

The jurisdiction of the Special Justice Court is activated where the police respond to a crime or public disturbance that may be characterised as a ‘minor crime’. A termo circunstanciado, or document identifying the people involved and the facts and circumstances of the conduct complained of, is sent to the court, accused and victim (Article 69 of Law 9,099/1995). The matter initially proceeds before the prosecutor and judge to determine how the matter should be proceeded against, and whether conciliation is a suitable first option for dispute resolution. The judge informs both accused and victim about the possibility of civil damages, and may set immediate penalty other than prison to finalise the matter (Article 72). The accused is granted a right to counsel at each stage (Article 72), although direct communication between accused and victim is expected where the matter proceeds to conciliation. The judge may also determine that the matter proceeds to conciliation to restore the relationship between the accused and victim, and their community more generally. In such instances, a conciliatory hearing is conducted by a mediator, a psychologist, social worker or criminal justice specialist, trained to resolve minor disputes between the parties (Article 73). If agreement is reached during conciliation, the terms of the agreement must be assessed as suitable by a judge of the court. Once the agreement is approved by the judge, it takes effect as an order of the court. This order may not be appealed, although it can be enforced by the court.

On the other hand, if conciliation fails and agreement is not reached or further, more serious crimes are disclosed, the victim has the right to prosecution (Article 75). At this point, the public prosecutor will review the case and may decide to proceed against more serious matters. Less serious or non-criminal matters will be discontinued. The prosecutor may offer the accused an immediate penalty other than imprisonment, in the form of a plea-bargain (Article 76). Plea-bargaining is encouraged under Federal Law 9,099/1995. The statute provides that once the offer is accepted by the defendant, it must be approved by the judge, who will effectively sentence the accused to its terms, although such a sentence does not constitute a conviction on the accused’s criminal record. However, the outcome is recorded by the court to prevent the offender from seeking a similar outcome, as only one such plea-deal is allowable within a five-year period (Article 76, §§ 3 and 4). Further restrictions to the acceptance of a plea-deal include where the offender has been imprisoned, or where the totality of the circumstances of the offence, including the criminal record of the offender, do not support such a benefit (Article 76, § 2).

Where the matter is not resolved by conciliation or plea-deal, the matter proceeds before the Special Justice Court constituted as a trial court. The judge then follows the same processes as those that constitute the ordinary criminal courts, which determine matters not eligible for the Domestic Violence or Special Justice Courts.

The victim’s intervention and due process concerns

The role of the victim in criminal proceedings before the Special Justice Court is controversial and divides authors in Brazil. Certain proponents are critical of the enhanced rights of the victim before the court. Wunderlich (2012) argues that the process supports the ‘hyper-valorization’ of the victim, supported by the victim’s right to initiate proceedings and their discretion to agree to outcomes at various stages of the criminal process. The lack of clear proof required of victims, especially during conciliation, which may move to resolution without direct proof on behalf of the victim, is also cited as an issue. Even where the resolution agreed to fails to garner the support of the mediator or judge, the word of the victim is enough to put the accused before a judge, without rigorous investigation by the police. Such processes have been criticised as encouraging revenge on the part of victims, by threat of a court process that may lead to an unjust agreement beneficial to the victim. Azevedo (2000: 163), commenting specifically on the Special Justice Courts in the city of Porto Alegre, found that the discretion traditionally exercised by the police fell to the victim, which controversially placed the victim rather than the police in the role of main protagonist.

However, this view is far from unanimous. Costa (2012) states that it was the intention of Federal Law 9,099/1995 to highlight the plight of the victim and to valorise their right to justice, and to allow victims to regain control of offending committed against them by informal processes that seek consensus building between the victim, accused and their community. However, Costa (2012) further argues that the rights afforded to victims in the Special Justice Court may detract from the significance of the offending against them, by ‘decriminalising’ offensive conduct through processes of conciliation, allowing the accused to reach agreement and essentially ‘opt-out’ of the trial process. Further, matters are dealt with in an administrative, rather than criminal, context, as the accused attracts no official record. The conclusion reached arguably diminishes the role of the victim, such that the victim is not participating in a strictly criminal proceeding (Costa, 2012).

The extent to which such criticisms disclose a fundamental denial of fairness to the accused or victim must be read in the context of the innovations that hybrid processes afford all participants. That such a process is victim led, in that the victim acts as a complainant who informs the court of the harm suffered and initiates the process against the accused, is what provides for such innovation in the first instance. Although conciliation acts to bring parties together by agreement, this is subject to facilitation, and where the terms are thought unsatisfactory by the facilitator, or where conciliation fails, the matter proceeds to trial. These are substantive procedural protections that act to protect the fair hearing rights of both parties. That parties are therefore not acting in a criminal process strictly defined is the very point of a hybrid procedure.

Conciliation and reparation

Once a matter proceeds before the Special Justice Court, the first process leading to resolution is conciliation where apology and/or reparation against wrongdoing may finalise the matter. All mediated outcomes must be approved by a judge of the court. However, the accused may end the matter by apologising to the victim, and, where an apology alone is inappropriate, the accused will be encouraged to repair damage to property or pay restitution to the victim directly. However, not every situation that is reported to the police will generate a termo circunstanciado, and proceed before the court. Only facts received a priori by the police as criminal will initiate the jurisdiction of the court. This supports the argument that the victim does not possess such plenary power to initiate criminal proceedings; however, subject to the practice and procedure of the court, the victim does have the power to accept an apology with or without reparation. This capacity enhances the community-building prospects of conciliation, giving the victim and accused the capacity to move beyond the criminal wrongdoing to focus on reparation of damage.

The following case examples²⁴ demonstrate a graduation of outcome from apology to mandatory trial following the inability to accept a plea-deal under Article 76:

Apology following minor physical assault: the victim, a pianist, was physically assaulted by his neighbour during a fight over the volume of his piano playing in contravention of Article 21 of 3,688/1941. During conciliation, the victim promised to keep his window closed while playing and the accused promised not to approach the victim again.

Apology following keeping animals without consent: the accused kept dogs near the home of the victim. The female dogs were on heat and a bad smell developed in contravention of Article 164 of the Criminal Code. The accused indicated that the dogs had already been removed prior to conciliation, and apologised to the victim for the disturbance caused. The accused promised not to keep as many dogs in the future. The victim accepted the apology and further undertaking, and the matter was finalised.

Agreement to enter treatment for indecent offensive behaviour: the accused regularly entered the victim’s shop intoxicated, disturbing her clients, in contravention of Article 61 of 3,688/1941. The accused was advised that counselling was available, and agreed to enter a programme to seek treatment for his alcoholism (see Faisting, 2012: 175–176).

Restitution for criminal libel: the accused published private photos of the victim online, insulting the victim in contravention of Article 140 of the Criminal Code. The accused apologised for his mistake and agreed to pay an amount of money to the victim.

Trial following physical assault causing injury: the victim lived with the accused and his friend. The victim, the aunt of the accused, her nephew, together with his friend, argued about their living arrangements. The victim chastised both accused and an argument ensued. Upon exiting the property, the victim’s hand became caught in a gate being closed by the nephew. The victim sustained an injury to her hand in contravention of Art 129 of the Criminal Code. She complained, and the matter proceeded to court. The victim would not accept an apology. The matter could not end in a plea-deal because the nephew had already accepted another plea within the minimum five-year period. The matter was reserved for trial to determine an appropriate punishment for the nephew.

The community courts of Brazil: mainstreaming problem-solving justice in a human rights context

The Domestic Violence and Special Justice Courts of Brazil demonstrate that problem-solving community justice need not be an alternative pathway to justice. Instead, both courts are situated as courts of first instance within the criminal process of Brazil. The engagement of key stakeholders, including victims, the accused, the police and prosecution, and the courts and judiciary, as well as service providers and welfare agencies, demonstrates how each court proceeds in a way beyond the normative scope of adversarial and inquisitorial practice and procedure. The engagement of key stakeholders does, however, provide for a system of criminal corrections that takes place in a community context. This context, which initially occurs through informal modes of conciliation, provides an invaluable opportunity for victim and offender engagement and interaction in a controlled and supported environment. The engagement facilitates the rehabilitation of the accused and grants the accused an opportunity to rebuild their lives within the community (see Bazemore and Dooley, 2015; Maruna, 2001; Ward and Maruna, 2007). Further processes allow unresolved or more serious matters to proceed through to trial, although engagement of the accused and victim continues even into the more formal modes of court engagement through inquisitorial processes led by the judge.

Brazilian criminal justice demonstrates a commitment to problem-solving justice through its innovative use of a mix of formal and informal trial processes. Brazil can do this because its legal system has developed out of mixed and hybrid legal processes unconstrained by those normative assumptions that weigh heavily on the legal processes of those systems that strongly identify as inquisitorial or adversarial. The mainstreaming of problem-solving and community justice indicates how the alternative can become the regular, so long as justice is organised in a way that engages the stakeholders of justice with a view to disrupting criminal offending by providing ongoing monitoring and support for the accused. This support can include the victim, as will ordinarily be the case where a matter proceeds before the Domestic Violence Court and where the victim seeks to continue the relationship, or where the accused seeks access to children of the relationship.

The virtue of the mainstreaming of problem-solving justice in a community justice context resides in the way the court processes identify the accused and victim as possessing inalienable human rights (see Birgden, 2015; Ife, 2009; Ward, 2009; Weaver, 2011). A human rights approach to criminal procedure recognises the importance of access and participation, and fair and dignified treatment, with outcomes personalised for the rehabilitation of the individual accused and victim. This is despite the Portuguese origins of the Brazilian legal process which, following independence in 1822, held Brazil open to the European civil process, and the continental development of human rights laws and protections. Continued engagement with the penal and procedural codes of Europe, but also the civil codes of Germany (the Bürgerliches Gesetzbuch, from 1881 but significantly post-1945) and Portugal (Código Civil, from 1966), provided a foundation for hybrid approaches focused on positive rights and obligations. Throughout the latter part of the 20th century, Brazil drew from European law, but then significantly from human rights frameworks through the Inter-American human rights system following the American Convention on Human Rights, which Brazil ratified in 1992. Langer’s (2014) critique of the adversarial/inquisitorial shadow addressed at the outset of this article was thus incrementally displaced as a result of the intermingled legal ancestry that gradually gave way to a modern human rights orientation that now supports a hybrid process constitutive of the community courts of Brazil.

Following assessment of the mainstreaming of the Brazilian community courts of first instance, lessons for western states may follow. The use of a rights framework to normalise problem-solving approaches institutionalised in courts of first instance can be identified through the origins of both the Domestic Violence and Special Justice Courts, albeit such origins responded to different human rights contexts. The Maria da Penha Law responded to the need to respond to and protect women particularly vulnerable to domestic violence. The ratification of the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women in addition to other OAS conventions on trial and procedural fairness provided a firm basis for the modification of criminal procedure to include the interests of victims and allowed departure from standard trial processes that would otherwise preclude victim involvement in key decision-making processes.

The origins of the Special Justice Court respond to constitutional powers granting states the ability to process minor criminal matters in an informal way to encourage dispute resolution at the local level. This ultimately supported greater community cohesion between protagonists, by avoiding formal criminal sanctions and promoting apology, restitution and reparation between parties. Costa (2012) argues that while the intent of Federal Law 9,099/1995 prioritises the victim in a criminal procedural context, it does this by recognising the need for consensus building between the victim and accused. This is particularly important for the maintenance of community cohesion given that most minor crimes are occasioned between persons known to one another, and often flow from inter-familiar conflicts. Relevant rights are those to be recognised before the law, without undue arrest or exile, for due process that allows for representation at each procedural stage, and for timely determination of disputes, with an agreement that supports reparation between victim, accused and community. The Special Justice Courts therefore similarly respond to a human rights context that seeks to redress offending in a way that maintains the rights of all parties to the conflict, including the victim’s right to restitution and reparation following criminal wrongdoing.

Out of the mainstreaming of community and problem-solving justice in Brazil come lessons for western states. These include the importance of designing a criminal procedure that ratifies fundamental human rights to justice (see Universal Declaration of Human Rights (General Assembly Resolution 217 A(III) of 10 December 1948); United Nations General Assembly, 1948) through to regional agreements and conventions that identify particularly at-risk communities and groups (see Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women of 9 June 1994; Organization of American States, 1994). These are not rights ordinarily protected by the common law and associated trial processes, and require specific procedural reform and intervention by parliament. Recourse to human rights discourse is thus fundamental to the mainstreaming of a criminal procedure that centres victim–offender conciliation and admonishment of wrongdoing in a way that supports the therapeutic and rehabilitative needs of accused and victim in a community-building context.

Footnotes

Acknowledgements

Court visits were conducted into the latter part of 2017 while the first author was visiting professor, Faculty of Law, Universidade Federal de Minas Gerais, Brazil. This research was funded during the author’s tenure at UNSW Law, and their kind support is appreciated.

Notes

References

Archilles

Zehr

(2015) Restorative justice for crime victims: The promise, the challenge. In: Bazemore

Schiff

(eds) Restorative Community Justice: Repairing Harm and Transforming Communities. Abingdon: Routledge, pp.87–100.

Azevedo

(2000) Informalização da justiça e controle social: estudo criminológico da implantação dos juizados especiais criminais em [Informal justice and social control: criminological study of the implementation of special criminal courts in Porto Alegre] . Jurídica

Monografia

. São Paulo: Insituto Brasileiro de Ciêncas Criminais.

Badaró

(2017) Processo Penal. 5th edn. São Paulo: Revista dos Tribunais.

Barros

(2013) A vítima de crimes e seus direitos fundamentais: Seu reconhecimento como sujeito de direito e sujeito do processo [The crime victim and their fundamental rights: their recognition as a figure of rights and process]. Revista de Direitos e Garantias Fundamentais 13: 309–334.

Batista

Mello

Pinho

HDB

, et al. (2007) Comentários à lei de violência doméstica e familiar contra a mulher [Commentary on domestic and familial violence against women] . Rio de Janeiro: Lumen Juris.

Bazemore

Dooley

(2015) Restorative justice and the offender: The challenge of reintegration. In: Bazemore

Schiff

(eds) Restorative Community Justice: Repairing Harm and Transforming Communities. Abingdon: Routledge, pp.101–126.

Berman

(2000) What is a traditional judge anyway? Problem-solving in the State Courts. Judicature 84(2): 78–85.

Berman

Feinblatt

(2001) Problem-solving courts: A brief primer. Law and Policy 23(2): 125–140.

Berman

Feinblatt

(2005) Good Courts: The Case for Problem-Solving Justice. New York: New Press.

10.

Birgden

(2015) Maximising desistance: Adding therapeutic jurisprudence and human rights to the mix. Criminal Justice and Behavior 42(1): 19–31.

11.

Braithwaite

(1989) Crime, Shame and Reintegration. Cambridge: Cambridge University Press.

12.

Braun

(2019) Victim Participation Rights: Variation Across Criminal Justice Systems. Basingstoke: Palgrave Macmillan.

13.

Campos

(2015) Desafios na implementação da Lei Maria da Penha [Challenges in the implementation of Maria da Penha’s Law]. Revista Direito GV, 22(11): 391–417.

14.

Center for Court Innovation (2020) Available at: www.courtinnovation.org

15.

Conselho Nacional de Justiça (CNJ) (2018) Available at: www.cnj.jus.br/noticias/cnj/85640-cnj-publica-dados-sobre-violencia-contra-a-mulher-no-judiciario

16.

Costa PBFM (2012) A vítima no processo penal: Interferências da lei 9.099/1995 [The victim in the penal process: Interference of law]. Doutrinas Essenciais Processo Penal 4: 1211–1218.

17.

Council of Europe (2017) Recommendation CM/Rec (2017) 3 on the European Rules on community sanctions and measures. Strasbourg: Committee of Ministers to Member States.

18.

Crawford

Clear

(2015) Community justice: Transforming communities through restorative justice? In: Bazemore

Schiff

(eds) Restorative Community Justice: Repairing Harm and Transforming Communities. Abingdon: Routledge, pp.127–150.

19.

Dias

(2007) A efetividade da lei Maria da Penha [The effectiveness of Law Maria da Penha]. Revista Brasileira de Ciências Criminais, 64(15): 297–312.

20.

Dickinson

(2003) The promise of hybrid courts. American Journal of International Law 97(2): 295–310.

21.

Donoghue

(2012) Anti-social behaviour, community engagement and the judicial role in England and Wales. British Journal of Criminology 52(3): 591–610.

22.

Faisting

(2012) Juizado especial criminal: Um estudo de caso a partir das audiências preliminares de conciliação [Special Criminal Justice: A case study based on the preliminary hearings of conciliation]. Revista Direito Humanos Fundamentais 12 (2): 167–184.

23.

Feldthusen

(1993) The civil action for sexual battery: Therapeutic jurisprudence. Ottawa Law Review 25(2): 205–234.

24.

Gil

(2008) Toward a ‘radical’ paradigm of restorative justice. In: Sullivan

Tifft

(eds) Handbook of Restorative Justice. London: Routledge, pp.499–511.

25.

Goldstein

(1987) Toward community-oriented policing: Potential, basic requirements, and threshold questions. Crime and Delinquency 33(1): 6–30.

26.

Ife

(2009) Human Rights from Below: Achieving Rights Through Community Development. Melbourne: Cambridge University Press.

27.

IPEA (Instituto de Pesquisa Econômica Aplicada - Applied Economics Research Institute) (2013) Violência contra a mulher: Feminicídios no Brasil [Violence against women: Femicide in Brazil]. Available at: http://www.ipea.gov.br

28.

Kaye

(2004) Delivering justice today: A problem-solving approach. Yale Law and Policy Review 22(1): 125–151.

29.

Kim

(2010) Mixed systems in legal origins analysis. Southern California Law Review 83: 693–730.

30.

King

Freiberg

Batagol

, et al. (2009) Non-Adversarial Justice. Sydney: Federation Press.

31.

Kirchengast

(2010) The Criminal Trial in Law and Discourse. Basingstoke: Palgrave Macmillan.

32.

Langer

(2014) The long shadow of the adversarial and inquisitorial categories. In: Dubber

Hörnle

(eds) The Oxford Handbook of Criminal Law. Oxford: Oxford University Press, pp.887–912.

33.

Lee

Cheesman

Rottman

, et al. (2013) A Community Court Grows in Brooklyn: A Comprehensive Evaluation of the Red Hook Community Justice Center: Final Report. New York: National Center for State Courts.

34.

Lopes

JRA

(2010) Direito Processual Penal e sua Conformidade Constitucional. 5th edn. Rio de Janeiro: Lumen Juris.

35.

Maria da Penha Maia Fernandes v Brazil (2001). Case 12.051, Report No. 54/01, Inter-Am Comm’n HR, 16 April.

36.

Maruna

(2001) Making Good: How Ex-Convicts Reform and Rebuild their Lives. Washington, DC: American Psychological Association.

37.

Ministry of Justice (2005) Making a Difference: Taking Forward Our Priorities. London: Department for Constitutional Affairs.

38.

Ministry of Justice (2009) Engaging Communities in Criminal Justice. Green Paper, CM 7583. London: Her Majesty’s Stationary Office.

39.

Murray

(2009) Keeping it in the neighbourhood? Neighbourhood courts in the Australian context. Monash University Law Review 35(1): 74–95.

40.

Nouwen

SMH

(2006) Hybrid courts: The hybrid category of a new type of international crimes courts. Utrecht Law Review 2: 190–214.

41.

Organization of American States (OAS) (1994) Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women (Convention of Belem do Pará), adopted 9 June 1994.

42.

Porto PRF (2007) Violência doméstica e familiar contra a mulher – Lei 11.340/06: análise crítica e sistêmica [Domestic and familial violence against women – Law 11.340/06: Critical and Systemic Analysis], Porto Alegre, Livraria do Advogado.

43.

Rouseff

Gomes

Menicucci

(2016) Diretrizes Nacionais Feminicídio: Investigar, Processar e Julgar com Perspectiva de Gênero as Mortes Violentas de Mulheres [National Femicide Guidelines: To investigate, to sue and to judge violent female deaths with a gender perspective]. ONU Mulheres. Available at: http://www.onumulheres.org.br/wp-content/uploads/2016/04/diretrizes_feminicidio.pdf

44.

Spieler

(2011) The Maria da Penha Case and the Inter-American Commission on Human Rights: Contributions to the debate on domestic violence against women in Brazil. Indiana Journal of Global Legal Studies, 18(1): 121–143.

45.

Tourinho Filho

(2010) Comentários à Lei dos Juizados Especiais Criminais [Commentary on the Special Criminal Courts of Law] . 7th edn. São Paulo: Saraiva.

46.

Tribunal de Justiça do Estado do Rio Grande do Sul (2017) Relatório Anual Dois Mil e Dezesseis – Relatórios Estatísticos [Annual Report Two Thousand and Sixteen – Statistical Reports]. Tribunal de Justiça do Estado do Rio Grande do Sul.

47.

United Nations General Assembly (1948) Universal Declaration of Human Rights. A/RES/3/217 A of 10 December 1948.

48.

United Nations General Assembly (1979) Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) A/RES/34/180 of 18 December 1979, entry into force 3 September 1981.

49.

Ward

(2009) Dignity and human rights in correctional practice. European Journal of Probation 1(2): 112–127.

50.

Ward

Maruna

(2007) Rehabilitation: Beyond the Risk Paradigm. London: Routledge.

51.

Weaver

(2011) Co-producing community justice: The transformative potential of personalisation for penal sanctions. British Journal of Social Work 41(6): 1038–1057.

52.

Wexler

(1999) Therapeutic jurisprudence and the culture of critique. Journal of Contemporary Legal Issues 10: 263–277.

53.

Wunderlich

(2012) A vítima no processo penal: Impressões sobre o fracasso da Lei 9.099/95 [The victim in the penal process: Reactions to the failure of Law 9.099/95]. Doutrinas Essenciais Processo Penal 4: 693–722.