A happy marriage is a harbour in the tempest of life, an unhappy marriage is a tempest in the harbour of life".
Dowry is one of the biggest social evils facing our country, and no civilized society should tolerate this, and every effort should be made to eradicate this evil, people giving and demanding dowry should be punished severely, But other side of the coin, often unlooked upon should not be ignored. And this side of the coin – is the misuse of these provisions by some unscrupulous wives to wreak havoc on husband and family.
In recent years the criminal law of the land have undergone radical changes to provide protection to women, more teeth have been provided to existing laws (DP Act, 498A, 406 IPC etc) and new enactments have been made (DV Act), but unfortunately the remedy is becoming worse than the ailment, which is now a well known fact as the stringent dowry laws have failed to stop the gruesome crimes for dowry/dowry deaths.
These laws which have been proved to be highly unsuccessful (as evident from the low conviction rate) and far from what the law makers desired it to be, are now being misused by some urban women for ulterior motives.
The henious nature of these laws (498-a, 406) does nothing but to help the unlawful implementation. As these laws are non compoundable & non bailable, the chances of reconciliation between the spouses after litigation are next to nil.
The biased nature of this laws is evident from that fact that unlike almost all laws in INDIA the burden to prove innocence lies on the accused……this means as soon as the complaint is made..whichever persons are named in the complaint are accused in the eyes of law, Isn’t this verdict before trial, now lets embark upon what Section 498 A is : SIMPLY PUT Section 498a of the IPC is a criminal law in which the wife and her parental family can charge any or all of the husband’s family of physical or mental cruelty.
This law is unique to India, it not only discriminates based on gender (man Vs. woman), but also discriminates against women based on their relationship with the husband.
Typically, the charged family members in these cases include:
1. Mostly women of all ages (unmarried, married sisters of the husband, his mother and sisters-in-law, elderly grandmothers and aunts)
2.Other maternal and paternal relatives and even young children in the family.
For every complaint filed by a woman, there are at least twice as many or more women are accused although the married couple may have never lived with any of the people mentioned in the criminal complaint.
Characteristics of 498-a, Indian Penal Code.
IPC-498a is
1. Cognizable – The accused can be arrested and jailed without warrant or investigation
2. Non-Compoundable – The complaint cannot be withdrawn by the petitioner (chances of living together again are lost)
3. Non-Bailable – The accused must appear in the court to request bail
On a single complaint of the wife, the husband and his entire family can be packed off to behind the bars, with an estimated 40,000 such accusations per year and an average of 5 members of the husband’s family implicated in each of these 498-a cases, about 200,000/- people are directly affected by these cases.
Hon’ble Supreme Court and various High Courts have time & again showed concern over this growing menace by observing that “By misuse of the provision (IPC 498a - Dowry and Cruelty Law) a new legal terrorism can be unleashed. The provision is intended to be used a shield and not an assassin’s weapon… says the Hon’ble Supreme Court. Merely because the provision is declared constitutional, it does not give licence to unscrupulous persons to wreak personal vendetta [1]
The judicial recognition of blatant misuse of these laws is not anew, way back in 1987, The Hon’ble Court In BALBIR SINGH VS. THE STATE OF PUNJAB [2] observed :
“Though the amendments introduced in the penal code are with the laudable object of eradicating the evil of Dowry, such provisions cannot be allowed to be misused by the parents and the relatives of a psychopath wife who may have chosen to end her life for reason which may be many other than cruelty. The glaring reality cannot be ignored that the ugly trend of false implications in view to harass and blackmail an innocent spouse and his relatives, i.e. fast emerging. IT IS THE TIME TO STOP THIS UNHEALTY TREND WHICH RESULTS IN UNNECCESARY MISERY AND TORTURE TO NUMEROUS EFFECTED PERSONS.”
Justice J.D.Kapoor (Delhi High Court) said in his order passed on 30th May, 2003 [3]
“ I feel constrained to comment upon the misuse of the provisions(of law) to such an extent that it is hitting at the foundation of marriage itself and has proved to be not so good for the health of the society at large.”
“There is a growing tendency to come out with inflated and exaggerated allegations, roping in each and every relation of the husband.
In Jasbir Kaur v/s State of Haryana[4] : the Punjab & Haryana high Court rightly observed that an estranged wife will go to any extent to rope in as many relatives of the husband as possible in a desperate effort to salvage whatever remains on an estranged marriage.
In Kanaraj vs. State of Punjab [5] the Hon’ble Apex Court observed:
“for the fault of the husband the in-laws or other relatives cannot in all cases be held to be involved. The acts attributed to such persons have to be proved beyond reasonable doubt and they cannot be held responsible by mere conjectures and implications. The tendency to rope in relatives of the husband as accused has to be curbed”
Karnataka High Court, in the case of State Vs. Srikanth [6] observed “Roping in of the whole of the family including brothers and sisters-in-law has to be depreciated unless there is a specific material against these persons, it is down right on the part of the police to include the whole of the family as accused”
The Hon’ble Supreme Court, In Mohd. Hoshan vs. State of A.P. [7], observed “Whether one spouse has been guilt of cruelty to the other is essentially a question of fact. The impact of complaints, accusation or taunts on a person amounting to cruelty depends on various factors like the sensitivity of the victim concerned, the social background, the environment, education etc. Further, mental cruelty varies from person to person depending on the intensity of the sensitivity, degree of courage and endurance to withstand such cruelty. Each case has to be decided on its own facts whether mental cruelty is made out”
Delhi high Court, in Savitri Devi vs. Ramesh Chand [8], categorically stated “These provisions were though made with good intentions but the implementation has left a very bad taste and the move has been counter productive. There is a growing tendency amongst the women which is further perpetuated by their parents and relatives to rope in each and every relative including minors and even school going kids nearer or distant relatives and in some cases against every person of the family of the husband whether living away or in other town or abroad and married, unmarried sisters, sisters-in-law, unmarried brothers, married uncles and in some cases grand parents or as many as 10 o 15 or even more relatives of the husband.”
Punjab and Haryana High Court, in Bhupinder Kaur and others vs. State of Punjab and others[9], held :
“From the reading of the FIR, it is evident that there is no specific allegation of any act against petitioners Nos.2 and 3, which constitute offence under s.498-A I.P.C. I am satisfied that these two persons have been falsely implicated in the present case, who were minors at the time of marriage and even at the time of lodging the present FIR. Neither of these two persons was alleged to have been entrusted with any dowry article nor they alleged to have ever demanded any dowry article. No specific allegation of demand of dowry, harassment and beating given to the complainant by the two accused has been made. The allegations made are vague and general. Moreover, it cannot be ignored that every member of the family of the husband has been implicated in the case. The initiation of criminal proceedings against them in the present case is clearly an abuse of the process of law”
The Hon’ble Supreme Court, in a relatively recent case, Sushil Kumar Sharma vs. Union of India and others[10]
“The object of the provision is prevention of the dowry menace. But as has been rightly contented by the petitioner that many instances have come to light where the complaints are not bonafide and have been filed with oblique motive. In such cases acquittal of the accused does not in all cases wipe out the ignominy suffered during and prior to trial. Sometimes adverse media coverage adds to the misery. The question, therefore, is what remedial measures can be taken to prevent abuse of the well-intentioned provision. Merely because the provision is constitutional and intra vires, does not give a licence to unscrupulous persons to wreck personal vendetta or unleash harassment. It may, therefore, become necessary for the legislature to find out ways how the makers of frivolous complaints or allegations can be appropriately dealt with. Till then the Courts have to take care of the situation within the existing frame work.
But by misuse of the provision a new legal terrorism can be unleashed. The provision is intended to be used a shield and not an assassin’s weapon. If cry of “wolf” is made too often as a prank assistance and protection may not be available when the actual “wolf” appears. There is no question of investigating agency and Courts casually dealing with the allegations. They cannot follow any straitjacket formula in the matters relating to dowry tortures, deaths and cruelty. It cannot be lost sight of that ultimate objective of every legal system is to arrive at truth, punish the guilty and protect the innocent. There is no scope for any pre-conceived notion or view. It is strenuously argued by the petitioner that the investigating agencies and the courts start with the presumptions that the accused persons are guilty and that the complainant is speaking the truth. This is too wide available and generalized statement. Certain statutory presumptions are drawn which again are rebuttable. It is to be noted that the role of the investigating agencies and the courts is that of watch dog and not of a bloodhound. It should be their effort to see that an innocent person is not made to suffer on account of unfounded, baseless and malicious allegations. It is equally undisputable that in many cases no direct evidence is available and the courts have to act on circumstantial evidence. While dealing with such cases, the law laid down relating to circumstantial evidence has to be kept in view.”
Justice Malimath Committee on Reforms of Criminal Justice System, Government of India, Ministry of Home Affairs, 2003 observed the following and gave the recommendation to amend the law immediately:
“16.4.4 In less tolerant impulsive woman may lodge an FIR even on a trivial act. The result is that the husband and his family may be immediately arrested and there may be a suspension or loss of job. The offence alleged being non-bailable, innocent persons languish in custody. There may be a claim for maintenance adding fuel to fire, if the husband cannot pay. She may change her mind and get into the mood to forget and forgive. The husband may realize the mistakes committed and come forward to turn a new leaf for a loving and cordial relationship. The woman may like to seek reconciliation. But this may not be possible due to the legal obstacles. Even if she wishes to make amends by withdrawing the complaint, she can not do so as the offence is non compoundable. The doors for returning to family life stand closed. She is thus left at the mercy of her natal family.
It Is pertinent to note here that, the real sufferers of the evil of dowry, the rural indian women are not even sensitized about their rights, and fail to make use of these laws.
But Some Indian Urban educated women have turned the tables and are using these laws as weapon to unleash personal vendetta on their husbands and innocent relatives.
Despite the various guidelines/recommendations of the Supreme Court of India and Justice Malimath Committee that the working of these laws should be reviewed and reformed with change in time, so that innocents are protected, and false complaints made with malafide intention are not registered, the suggested amendment to the law has been largely ignored. Unconstrained, this social evil is threatening the foundation of the Indian Family system. Feminists are now demanding even more teeth to the existing women laws, and more & more laws are being enacted for women. But the real sufferers are not sentisized enough to make use of these laws, and these laws are getting misused in the hands of some clever Indian wives.
The latest addition in a women’s legal artillery is The Protection of Women from Domestic Violence Act – This law is absolutely pro-women and anti-men, this law assumes every man as a virtual torturer” and considers only women as victims. This law is highly vague, and speaks of verbal/economical & emotional abuse, which are impossible to quantify & ascertain. Many husbands and their family members, falsely implicated in these cases have committed suicide after being jailed, unable to bear the social trauma.
Nearly 44.7% of the suicide victims were married males while only 25% were married females. This clearly shows the ratio of victims of domestic violence and gender abuse.[11]
It is high time for law makers/law enforcing agencies/judges to pay heed and review these laws in public interest to check the growing misuse of these laws to ensure impartial justice and to protect the pious and sacred institution of marriage.
[1] http://www.hindu.com/2005/07/22/stories/2005072202631500.htm
[2] 1987 (1) CRIMES - 76.
[3] ( 20 May 2003 )
[4] (1990)2 Rec Cri R 243
[5] 2000 CriLJ 2993
[6] 2002 CriLJ 3605
[7] 2002 CriLJ 4124
[8] 2003 CriLJ 2759
[9] 2003 CriLJ 3394
[10]JT 2005(6) 266
Authored by:Bharat Chugh
sexta-feira, 27 de janeiro de 2012
Wife Sues In-Laws, Says Arranged Marriage Turned to Slavery ( Texto muito interessante)
Diptiben Mistry was a 20-year-old college student in India when she married Himansu Udwadia, then 24, who was working as an accountant in the United States.
Mistry says it was an arranged marriage, common even in Indian-American families, and that she was promised a good life and the opportunity to finish her education in hotel management in India.
But after a brief honeymoon, all those dreams vanished, according to a lawsuit Mistry filed on Jan. 10 in U.S. District Court for the Western District of Oklahoma against her in-laws, Chandrakant and Nilam Udwadia.
Mistry's father-in-law allegedly told her she needed to return immediately to the United States with the family, and the couple eventually settled in the same house as her husband's parents in Elk City, Okla., in 2007.
There, she alleged that the Udwadias controlled her life -- rationing food, depriving her of medical care and forcing her into unpaid labor as a household servant.
In the federal lawsuit Mistry claimed that her in-laws kept her a "virtual prisoner" in their home and that the Udwadias took away all her personal belongings, including her passport, so that she could not leave.
Mistry, now 24, told ABCNews.com in an email that she knew "early on" that her treatment by the Udwadias was "not right."
She alleged that her in-laws took away her cell phone and monitored all calls to her family back home in India.
"They also took all of my personal belongings once we got to the U.S., and kept them from me," she wrote. "But for a long time, I told myself that I had to accept the harsh treatment because I was scared. ..."
Mistry said she became malnourished, losing 26 pounds during the alleged ordeal. The Udwadias even dictated how often she could use the toilet, monitored her every move with a webcam and on several occasions abused her physically, according to the complaint.
"By engaging in modern-day slavery, the defendants committed abhorrent acts condemned in all civilized countries," reads the lawsuit.
Mistry has asked the court for more than $75,000 to compensate her for "forced labor" and for "intense physical and psychological pain and suffering," and most of all, depriving her of her "basic human dignity" during the year she lived in Oklahoma and later in Georgia.
U.S. Justice Department statistics reveal human trafficking is growing nearly as fast as drug trafficking, with 2,525 cases under investigation, according to a report in the Detroit Free Press. More than half the victims are women and children.
"This case is significant because it raises serious allegations of forced labor and human trafficking in a context, within a family, where those claims are rarely brought forward," said Allison Lefrak, litigation director for Human Rights USA, which advocates for women who have been victims of violence or gender-based persecution. The group is handling Mistry's legal case.
Mistry first sought help from Catholic Charities and local human trafficking groups in 2008, and they contacted the Oklahoma City FBI, which investigated her criminal claims, but did not prosecute.
Today Mistry resides in another part of the United States and said she still struggles with depression and anxiety, and at times feels suicidal.
Chandrakant and Nilam Udwadia were served legal papers Jan. 17. They have 30 days to retain a lawyer and answer the complaint.
ABCNews.com repeatedly called the Udwadia family, who now live in Suanee, Ga., to ask about the allegations.
On the first try, Chandrakant Udwadia said, after some hesitation, "You'd be better off calling my lawyer," and hung up the telephone. He did provide the name of a lawyer and did not respond to four more calls. Only an answering machine picked up.
Himansu Udwadia appears to live with his parents, according to public records.
The family still owns the house in Elk City, which is currently up for sale, according to neighbors.
"There's still a sign in the yard," said Jo Grubitz, 87, who still lives on Sunset Circle, and had frequent conversations with the Udwadias. "They told me they were from Canada and had moved here because of their son."
Grubitz said she often saw the younger son, who was in high school at the time, but had never met Himansu Udwadia because "he was in college studying to be an accountant."
As for his wife, Mistry, she said, "I never saw a younger woman."
Mistry told ABCNews.com that a middleman who knew both families had arranged the marriage in India after a 30-minute meeting. Mistry's father runs a photocopy business and her mother does not work. Both parents are college educated.
"My father met Himansu once before the meeting where I met him," Mistry wrote in her email. "He thought that we would make a good match. ... "
The lawsuit alleges that barely a month into the marriage Mistry's husband left the family's Oklahoma home and moved to Georgia to work, leaving her alone with her in-laws.
"I thought my marriage would be like other Indian marriages," she wrote. "I had never heard of a husband and wife living apart. This was definitely not what I expected out of my marriage."
"I knew that we would live in our in-laws' house for some time period," she said. "But I assumed that Himansu would also be living there as well, because he was my husband."
According to the lawsuit, her father-in-law's "control" extended to Mistry and her husband's family plans. "Himansu told Mistry that they would have a baby when Chandrakant told them to," it alleges.
She would not tell ABCNews.com why she had not named him in the lawsuit.
The lawsuit alleges that the Udwadias were able to control Mistry by threatening her with divorce, which in her culture would carry "deep shame" and rejection.
"They hung the shame of divorce over her head and she was afraid she wouldn't be able to show her face in the community," said Lynsay Gott, acting executive director of Human Rights USA.
Mistry's lawyers have alleged violations of a federal human trafficking law that was enacted in 2000 and has a victim's remedy provision, as well as an Oklahoma law that passed in 2005.
They say the lawsuit meets many of the legal criteria of human trafficking: involuntary servitude, misleading statements to induce a victim to enter a situation, threats of deportation, long work hours and restricted access to food and medical care.
"She willingly entered the marriage, but she was under the impression it was going to be a normal marriage," said Gott. "But those promises were reneged quickly."
Mistry alleged that she realized during her visa interview in Mumbai that her in-laws had begun the immigration paperwork long before their son had even met her, evidence that the Udwadias "were looking for any 'bride' that could fulfill a domestic servant role in their household," according to court documents.
According to the lawsuit, Mistry was forced to rise at 5 a.m. to prepare tea and breakfast for her in-laws, then spent the day cleaning the pictures of the Hindi gods, picking flowers for prayer, doing laundry and feeding the dog, working until 11 p.m. every day, even when she was sick.
Mistry alleged both verbal and physical abuse by her father-in-law, claiming he told his son to throw a plate at her head and "let it bleed" if her "cooking was bad." Once, the lawsuit alleges, he threw a glass jar at her head.
Another time, he allegedly injured her hand by pushing Mistry against the dishwasher.
Mistry also said she believed the family had installed video surveillance in both her bedroom and bathroom. She was not allowed to drive, make friends or do anything on her own, she alleged.
She also claimed that her father-in-law refused her treatment for a painful toothache and an infected spider bite. He allegedly attempted to "heal" a rash by rubbing his hands on her stomach twice a day and inappropriately took photos of "private parts" of her body to make a medical diagnosis, according to court documents.
In one instance she alleges her father-in-law entered her bedroom and began touching her. When she screamed, Mistry alleges he told her to go outside where she stood in the cold for 15 to 20 minutes, and he threatened to send her back to India.
Her parents never knew the extent of the alleged abuse, according to Mistry.
"I was able to talk to my parents periodically, but I had to put them on the speaker phone while my in-laws listened," said Mistry. "They told me how I needed to respond to questions from my family."
After seven months, Mistry was sent to Georgia to join her husband, but the control continued, according to the complaint.
Mistry alleged she continued to be monitored at a distance by webcam, and that her husband reported back to his parents. She also alleged she was forced to work at Dairy Queen and had to turn over all her wages to the Udwadias.
In March 2008, she was sent back to India under the false pretense that she could return to school, according to the lawsuit. The divorce was published in Douglasville, Ga., on Aug. 1.
Mistry's parents were "supportive" of their daughter when they learned the truth, according to her lawyers, but she decided to return to the U.S. to confront her husband when he did not return her calls.
She had an uncle living in Clearwater, Fla., and there, Mistry sought help with her visa from Catholic Charities. Social workers there encouraged her to contact human trafficking advocates.
"It was really difficult for her," said Giselle Rodriguez of the Florida Coalition on Human Trafficking, whose group provided Mistry with a place to stay, food and clothing, counseling and schooling.
"When I first met her, she was very lost," said Rodriguez, who served as Mistry's case worker. "They had made her cut her hair off, and she was down to 90 pounds and looked extremely sad."
The Udwadias had filed for divorce from Mistry as a "missing person," according to Rodriguez. "They said they didn't know where she was, and it was hard convincing her the divorce was real."
The lawsuit alleges her father-in-law initiated the divorce.
Before Mistry went back to India, Chandrakant told his son to divorce her or he would sever his relationship with Himansu, alleges the lawsuit. "Himansu resisted his father repeatedly and stated he did not want to divorce his wife," according to court documents.
"She never really saw herself as a victim," said Rodriguez. "She was very confused and wondered what it was she did wrong."
Rodriguez said she contacted the FBI in Oklahoma and involved Det. James McBride of the Clearwater police, who also serves on the Clearwater/Tampa Bay Task Force for Human Trafficking.
"She did initially contact us in November 2008," said Clearwater police spokeswoman Elizabeth Watts. "I don't have any idea what happened with the investigation because it was out of our jurisdiction."
According to Rodriguez, the FBI attempted to file criminal charges, but the U.S. and state attorneys "passed up on the case" because "they didn't know if it would stand in court because of the Hindi customs [in marriage]."
But the FBI granted Mistry a "continued presence" as a refugee in the U.S., she said.
ABCNews.com called Oklahoma City FBI spokesman Clay Simmonds, who said he would try to find more detail in Mistry's case.
"It was disheartening to see," said Rodriguez. "She was feeling hurt and it was tough to work through. She had married a handsome man with an education and a career, but his parents treated her like a piece of crap. ... But she didn't want to give up on her marriage."
To this day, Mistry said she still finds it difficult to trust others. "I am now trying to rebuild my life, but I'm still very much upset by what happened to me," she wrote.
"I thought when I returned to the U.S. that I would be able to talk with Himansu," she wrote to ABCNews.com. "I hoped that he would be able to cut off ties with his parents. I hoped that we could start over and live a life separate from his parents."
Other family members assured her that would be possible, she said. "Ultimately, I now realize that Himansu was not willing to sever ties with his parents."
http://abcnews.go.com/Health/wife-sues-laws-alleging-arranged-marriage-turned-human/story?id=15342407&page=2#.TyAFjqWn89M
Mistry says it was an arranged marriage, common even in Indian-American families, and that she was promised a good life and the opportunity to finish her education in hotel management in India.
But after a brief honeymoon, all those dreams vanished, according to a lawsuit Mistry filed on Jan. 10 in U.S. District Court for the Western District of Oklahoma against her in-laws, Chandrakant and Nilam Udwadia.
Mistry's father-in-law allegedly told her she needed to return immediately to the United States with the family, and the couple eventually settled in the same house as her husband's parents in Elk City, Okla., in 2007.
There, she alleged that the Udwadias controlled her life -- rationing food, depriving her of medical care and forcing her into unpaid labor as a household servant.
In the federal lawsuit Mistry claimed that her in-laws kept her a "virtual prisoner" in their home and that the Udwadias took away all her personal belongings, including her passport, so that she could not leave.
Mistry, now 24, told ABCNews.com in an email that she knew "early on" that her treatment by the Udwadias was "not right."
She alleged that her in-laws took away her cell phone and monitored all calls to her family back home in India.
"They also took all of my personal belongings once we got to the U.S., and kept them from me," she wrote. "But for a long time, I told myself that I had to accept the harsh treatment because I was scared. ..."
Mistry said she became malnourished, losing 26 pounds during the alleged ordeal. The Udwadias even dictated how often she could use the toilet, monitored her every move with a webcam and on several occasions abused her physically, according to the complaint.
"By engaging in modern-day slavery, the defendants committed abhorrent acts condemned in all civilized countries," reads the lawsuit.
Mistry has asked the court for more than $75,000 to compensate her for "forced labor" and for "intense physical and psychological pain and suffering," and most of all, depriving her of her "basic human dignity" during the year she lived in Oklahoma and later in Georgia.
U.S. Justice Department statistics reveal human trafficking is growing nearly as fast as drug trafficking, with 2,525 cases under investigation, according to a report in the Detroit Free Press. More than half the victims are women and children.
"This case is significant because it raises serious allegations of forced labor and human trafficking in a context, within a family, where those claims are rarely brought forward," said Allison Lefrak, litigation director for Human Rights USA, which advocates for women who have been victims of violence or gender-based persecution. The group is handling Mistry's legal case.
Mistry first sought help from Catholic Charities and local human trafficking groups in 2008, and they contacted the Oklahoma City FBI, which investigated her criminal claims, but did not prosecute.
Today Mistry resides in another part of the United States and said she still struggles with depression and anxiety, and at times feels suicidal.
Chandrakant and Nilam Udwadia were served legal papers Jan. 17. They have 30 days to retain a lawyer and answer the complaint.
ABCNews.com repeatedly called the Udwadia family, who now live in Suanee, Ga., to ask about the allegations.
On the first try, Chandrakant Udwadia said, after some hesitation, "You'd be better off calling my lawyer," and hung up the telephone. He did provide the name of a lawyer and did not respond to four more calls. Only an answering machine picked up.
Himansu Udwadia appears to live with his parents, according to public records.
The family still owns the house in Elk City, which is currently up for sale, according to neighbors.
"There's still a sign in the yard," said Jo Grubitz, 87, who still lives on Sunset Circle, and had frequent conversations with the Udwadias. "They told me they were from Canada and had moved here because of their son."
Grubitz said she often saw the younger son, who was in high school at the time, but had never met Himansu Udwadia because "he was in college studying to be an accountant."
As for his wife, Mistry, she said, "I never saw a younger woman."
Mistry told ABCNews.com that a middleman who knew both families had arranged the marriage in India after a 30-minute meeting. Mistry's father runs a photocopy business and her mother does not work. Both parents are college educated.
"My father met Himansu once before the meeting where I met him," Mistry wrote in her email. "He thought that we would make a good match. ... "
The lawsuit alleges that barely a month into the marriage Mistry's husband left the family's Oklahoma home and moved to Georgia to work, leaving her alone with her in-laws.
"I thought my marriage would be like other Indian marriages," she wrote. "I had never heard of a husband and wife living apart. This was definitely not what I expected out of my marriage."
"I knew that we would live in our in-laws' house for some time period," she said. "But I assumed that Himansu would also be living there as well, because he was my husband."
According to the lawsuit, her father-in-law's "control" extended to Mistry and her husband's family plans. "Himansu told Mistry that they would have a baby when Chandrakant told them to," it alleges.
She would not tell ABCNews.com why she had not named him in the lawsuit.
The lawsuit alleges that the Udwadias were able to control Mistry by threatening her with divorce, which in her culture would carry "deep shame" and rejection.
"They hung the shame of divorce over her head and she was afraid she wouldn't be able to show her face in the community," said Lynsay Gott, acting executive director of Human Rights USA.
Mistry's lawyers have alleged violations of a federal human trafficking law that was enacted in 2000 and has a victim's remedy provision, as well as an Oklahoma law that passed in 2005.
They say the lawsuit meets many of the legal criteria of human trafficking: involuntary servitude, misleading statements to induce a victim to enter a situation, threats of deportation, long work hours and restricted access to food and medical care.
"She willingly entered the marriage, but she was under the impression it was going to be a normal marriage," said Gott. "But those promises were reneged quickly."
Mistry alleged that she realized during her visa interview in Mumbai that her in-laws had begun the immigration paperwork long before their son had even met her, evidence that the Udwadias "were looking for any 'bride' that could fulfill a domestic servant role in their household," according to court documents.
According to the lawsuit, Mistry was forced to rise at 5 a.m. to prepare tea and breakfast for her in-laws, then spent the day cleaning the pictures of the Hindi gods, picking flowers for prayer, doing laundry and feeding the dog, working until 11 p.m. every day, even when she was sick.
Mistry alleged both verbal and physical abuse by her father-in-law, claiming he told his son to throw a plate at her head and "let it bleed" if her "cooking was bad." Once, the lawsuit alleges, he threw a glass jar at her head.
Another time, he allegedly injured her hand by pushing Mistry against the dishwasher.
Mistry also said she believed the family had installed video surveillance in both her bedroom and bathroom. She was not allowed to drive, make friends or do anything on her own, she alleged.
She also claimed that her father-in-law refused her treatment for a painful toothache and an infected spider bite. He allegedly attempted to "heal" a rash by rubbing his hands on her stomach twice a day and inappropriately took photos of "private parts" of her body to make a medical diagnosis, according to court documents.
In one instance she alleges her father-in-law entered her bedroom and began touching her. When she screamed, Mistry alleges he told her to go outside where she stood in the cold for 15 to 20 minutes, and he threatened to send her back to India.
Her parents never knew the extent of the alleged abuse, according to Mistry.
"I was able to talk to my parents periodically, but I had to put them on the speaker phone while my in-laws listened," said Mistry. "They told me how I needed to respond to questions from my family."
After seven months, Mistry was sent to Georgia to join her husband, but the control continued, according to the complaint.
Mistry alleged she continued to be monitored at a distance by webcam, and that her husband reported back to his parents. She also alleged she was forced to work at Dairy Queen and had to turn over all her wages to the Udwadias.
In March 2008, she was sent back to India under the false pretense that she could return to school, according to the lawsuit. The divorce was published in Douglasville, Ga., on Aug. 1.
Mistry's parents were "supportive" of their daughter when they learned the truth, according to her lawyers, but she decided to return to the U.S. to confront her husband when he did not return her calls.
She had an uncle living in Clearwater, Fla., and there, Mistry sought help with her visa from Catholic Charities. Social workers there encouraged her to contact human trafficking advocates.
"It was really difficult for her," said Giselle Rodriguez of the Florida Coalition on Human Trafficking, whose group provided Mistry with a place to stay, food and clothing, counseling and schooling.
"When I first met her, she was very lost," said Rodriguez, who served as Mistry's case worker. "They had made her cut her hair off, and she was down to 90 pounds and looked extremely sad."
The Udwadias had filed for divorce from Mistry as a "missing person," according to Rodriguez. "They said they didn't know where she was, and it was hard convincing her the divorce was real."
The lawsuit alleges her father-in-law initiated the divorce.
Before Mistry went back to India, Chandrakant told his son to divorce her or he would sever his relationship with Himansu, alleges the lawsuit. "Himansu resisted his father repeatedly and stated he did not want to divorce his wife," according to court documents.
"She never really saw herself as a victim," said Rodriguez. "She was very confused and wondered what it was she did wrong."
Rodriguez said she contacted the FBI in Oklahoma and involved Det. James McBride of the Clearwater police, who also serves on the Clearwater/Tampa Bay Task Force for Human Trafficking.
"She did initially contact us in November 2008," said Clearwater police spokeswoman Elizabeth Watts. "I don't have any idea what happened with the investigation because it was out of our jurisdiction."
According to Rodriguez, the FBI attempted to file criminal charges, but the U.S. and state attorneys "passed up on the case" because "they didn't know if it would stand in court because of the Hindi customs [in marriage]."
But the FBI granted Mistry a "continued presence" as a refugee in the U.S., she said.
ABCNews.com called Oklahoma City FBI spokesman Clay Simmonds, who said he would try to find more detail in Mistry's case.
"It was disheartening to see," said Rodriguez. "She was feeling hurt and it was tough to work through. She had married a handsome man with an education and a career, but his parents treated her like a piece of crap. ... But she didn't want to give up on her marriage."
To this day, Mistry said she still finds it difficult to trust others. "I am now trying to rebuild my life, but I'm still very much upset by what happened to me," she wrote.
"I thought when I returned to the U.S. that I would be able to talk with Himansu," she wrote to ABCNews.com. "I hoped that he would be able to cut off ties with his parents. I hoped that we could start over and live a life separate from his parents."
Other family members assured her that would be possible, she said. "Ultimately, I now realize that Himansu was not willing to sever ties with his parents."
http://abcnews.go.com/Health/wife-sues-laws-alleging-arranged-marriage-turned-human/story?id=15342407&page=2#.TyAFjqWn89M
NY Times Reporter Sounds off on Legal Education, Accreditation and the ‘Crazy’ Race for Rankings
New York Times reporter David Segal, whose recent series of stories on legal education has touched off a furor in the legal community, says law schools have taken the quest for higher rankings and greater prestige to "an incredibly destructive" place.
Segal says the "madness" created by U.S. News and World Report's annual law school rankings have led many schools to employ all kinds of different "shenanigans" to make themselves more appealing to prospective students and to cover up just how bad the job market for law school graduates is.
Segal's remarks came in an interview with Bloomberg Law's Lee Pacchia that was posted on YouTube on Thursday. The conversation touched on several subjects, including the high costs of a legal education, the ABA's role as a law school accreditor and the competition for prestige that has shaped many law schools' actions.
Segal, whose normal beat at the paper is consumer finance, says he got into the business of legal education quite by accident. He met a recent law school graduate at a cocktail party who told him that while he had been lucky enough to land a job, none of his friends had.
"That just seemed like an interesting fact to me, and I just dove in from there and then just found out how just crazy the whole law school market is," he says.
Segal says the U.S. News rankings do some good, but have led almost all law schools to fudge a lot of their figures and set "really sad" priorities. He said U.S. News bears some of the blame for building such perversities into its rankings.
"But it doesn't help that law schools are just completely obedient to the set of standards and jump through any hurdle that is erected by U.S. News" to improve their ranking, he says.
Segal also says the ABA has a "terrible conflict of interest" stemming from its dual role as an accreditor of law schools and as the voice of the profession, though he doesn't mention that the Section of Legal Education and Admissions to the Bar, the ABA's accrediting arm, is completely independent of the association. He said that despite some reforms that have brought more nonlawyers into the process, the accrediting function is still essentially dominated by lawyers, whose primary interest is in enhancing the prestige and salaries of the legal profession.
"That is just a recipe for a bunch of self-interested decisions," he said.
Fonte: Mark Hansen
Segal says the "madness" created by U.S. News and World Report's annual law school rankings have led many schools to employ all kinds of different "shenanigans" to make themselves more appealing to prospective students and to cover up just how bad the job market for law school graduates is.
Segal's remarks came in an interview with Bloomberg Law's Lee Pacchia that was posted on YouTube on Thursday. The conversation touched on several subjects, including the high costs of a legal education, the ABA's role as a law school accreditor and the competition for prestige that has shaped many law schools' actions.
Segal, whose normal beat at the paper is consumer finance, says he got into the business of legal education quite by accident. He met a recent law school graduate at a cocktail party who told him that while he had been lucky enough to land a job, none of his friends had.
"That just seemed like an interesting fact to me, and I just dove in from there and then just found out how just crazy the whole law school market is," he says.
Segal says the U.S. News rankings do some good, but have led almost all law schools to fudge a lot of their figures and set "really sad" priorities. He said U.S. News bears some of the blame for building such perversities into its rankings.
"But it doesn't help that law schools are just completely obedient to the set of standards and jump through any hurdle that is erected by U.S. News" to improve their ranking, he says.
Segal also says the ABA has a "terrible conflict of interest" stemming from its dual role as an accreditor of law schools and as the voice of the profession, though he doesn't mention that the Section of Legal Education and Admissions to the Bar, the ABA's accrediting arm, is completely independent of the association. He said that despite some reforms that have brought more nonlawyers into the process, the accrediting function is still essentially dominated by lawyers, whose primary interest is in enhancing the prestige and salaries of the legal profession.
"That is just a recipe for a bunch of self-interested decisions," he said.
Fonte: Mark Hansen
domingo, 30 de outubro de 2011
Valores indenizatórios no Estado da Califórnia U.S.A
Construction worker death
Settlement: $3,850,000
A construction worker was killed when a boom detached from a forklift and struck him in the head (Fernandez v. Sunstate Equipment Co., Los Angeles County Superior Court, Plaintiff’s attorney: Bruce M. Brusavich).
Bicycle v. tractor-trailer
Settlement: $5,815,000
A 76-year-old bicyclist required a leg amputation after he was struck in an intersection by a tractor-trailer (McClellan v. Gutierrez, Los Angeles County Superior Court, Plaintiff’s attorney: Christopher R. Aitken).
Motorcyclists injured
Verdict: $3,548,805
Two motorcyclists suffered massive injuries when they ran over a wheel/tire assembly that had fallen onto the highway (Campbell v. Livestock, Sacramento County Superior Court, Plaintiff’s attorney: P. Terry Anderlini).
Pulmonary embolism
Verdict: $2,772,680
A 58-year-old woman died as a result of the failure of her physician to diagnose a pulmonary embolism (Ajdari v. Southern California Permanente Medical Group, Los Angeles County Superior Court, Plaintiff’s attorney: Todd J. Bloomfield).
Fatal crush injuries
Verdict: $3,297,464
A 40-year-old pest control worker was crushed to death against a loading dock wall he was inspecting by a tractor-trailer backing into the dock (Perez v. Northern Refrigerated Transportation Inc., Orange County Superior Court, Plaintiff’s attorney: Matthew McNicholas).
Highway pedestrian
Verdict: $7,284,000
A bus driver refueling his vehicle on the side of a highway was killed when struck by the trailer of a big rig that collided with another big rig (Haen v. Logos Group, Fresno County Superior Court, Plaintiff’s attorney: Roger A. Dreyer).
Worker fall
Settlement: $3,025,000
A worker was injured in a fall when a forklift at a construction site struck the scaffold he was standing on, causing it to collapse (Ojeda v. Confidential, Los Angeles County Superior Court, Plaintiff’s attorney: Steven B. Effres).
Rollover fatality
Settlement: $1,240,000
One of a group of students returning to campus was ejected and killed after the driver fell asleep at the wheel and rolled his SUV (Wasson v. Garrett, Los Angeles County Superior Court, Plaintiff’s attorney: Stephen M. Joyce).
Intersection collision
Verdict: $3,753,651
A 74-year-old farmer was severely injured when his truck was struck by a vehicle that failed to stop at a stop sign (Maseba v. Mosqueda, Fresno County Superior Court, Plaintiff’s attorney: Warren R. Paboojian).
Forklift Accident
Settlement: $2,850,000
A security guard sustained massive injuries when a forklift lacking a backup alarm knocked him down and ran over him (Walker v. Westside Building Materials, Los Angeles County Superior Court, Plaintiff’s attorney: David R. Olan).
Table collapse
Settlement: $1,000,000
A customer sitting at a table on a restaurant patio was injured when the table broke at its base, causing him to fall to the ground (Godales v. San Pedro Fish Market, Los Angeles County Superior Court, Plaintiff’s attorney: Otto L. Haselhoff).
Editor’s Note: California Bar Journal publishes this abbreviated summary of important trials in California provided by Trials Digest. To report your case results, go to west.thomson.com/trialsdigest/form.aspx or call 415-344-3952.
Settlement: $3,850,000
A construction worker was killed when a boom detached from a forklift and struck him in the head (Fernandez v. Sunstate Equipment Co., Los Angeles County Superior Court, Plaintiff’s attorney: Bruce M. Brusavich).
Bicycle v. tractor-trailer
Settlement: $5,815,000
A 76-year-old bicyclist required a leg amputation after he was struck in an intersection by a tractor-trailer (McClellan v. Gutierrez, Los Angeles County Superior Court, Plaintiff’s attorney: Christopher R. Aitken).
Motorcyclists injured
Verdict: $3,548,805
Two motorcyclists suffered massive injuries when they ran over a wheel/tire assembly that had fallen onto the highway (Campbell v. Livestock, Sacramento County Superior Court, Plaintiff’s attorney: P. Terry Anderlini).
Pulmonary embolism
Verdict: $2,772,680
A 58-year-old woman died as a result of the failure of her physician to diagnose a pulmonary embolism (Ajdari v. Southern California Permanente Medical Group, Los Angeles County Superior Court, Plaintiff’s attorney: Todd J. Bloomfield).
Fatal crush injuries
Verdict: $3,297,464
A 40-year-old pest control worker was crushed to death against a loading dock wall he was inspecting by a tractor-trailer backing into the dock (Perez v. Northern Refrigerated Transportation Inc., Orange County Superior Court, Plaintiff’s attorney: Matthew McNicholas).
Highway pedestrian
Verdict: $7,284,000
A bus driver refueling his vehicle on the side of a highway was killed when struck by the trailer of a big rig that collided with another big rig (Haen v. Logos Group, Fresno County Superior Court, Plaintiff’s attorney: Roger A. Dreyer).
Worker fall
Settlement: $3,025,000
A worker was injured in a fall when a forklift at a construction site struck the scaffold he was standing on, causing it to collapse (Ojeda v. Confidential, Los Angeles County Superior Court, Plaintiff’s attorney: Steven B. Effres).
Rollover fatality
Settlement: $1,240,000
One of a group of students returning to campus was ejected and killed after the driver fell asleep at the wheel and rolled his SUV (Wasson v. Garrett, Los Angeles County Superior Court, Plaintiff’s attorney: Stephen M. Joyce).
Intersection collision
Verdict: $3,753,651
A 74-year-old farmer was severely injured when his truck was struck by a vehicle that failed to stop at a stop sign (Maseba v. Mosqueda, Fresno County Superior Court, Plaintiff’s attorney: Warren R. Paboojian).
Forklift Accident
Settlement: $2,850,000
A security guard sustained massive injuries when a forklift lacking a backup alarm knocked him down and ran over him (Walker v. Westside Building Materials, Los Angeles County Superior Court, Plaintiff’s attorney: David R. Olan).
Table collapse
Settlement: $1,000,000
A customer sitting at a table on a restaurant patio was injured when the table broke at its base, causing him to fall to the ground (Godales v. San Pedro Fish Market, Los Angeles County Superior Court, Plaintiff’s attorney: Otto L. Haselhoff).
Editor’s Note: California Bar Journal publishes this abbreviated summary of important trials in California provided by Trials Digest. To report your case results, go to west.thomson.com/trialsdigest/form.aspx or call 415-344-3952.
domingo, 17 de julho de 2011
Disponibilidade para celulares
Caros leitores, a partir de 17/07/2011 esse blog também poderá ser acessado via celular.
Obrigado a todos que o acompanham!
Prof. Walter Gonçalves Junior
Obrigado a todos que o acompanham!
Prof. Walter Gonçalves Junior
quarta-feira, 8 de junho de 2011
ARTIGO: LIBERDADE DE IMPRENSA E DE JULGAMENTO
Aos juízes compete única e exclusivamente combater a injustiça. As rotulações dadas às operações policiais no auge das famosas espetacularizações serviram apenas para estigmatizar pessoas, fomentar preconceitos e enodoar julgamentos. Com efeito, uma operação pode ser um sucesso de público e de mídia, mas um fiasco processual, com resultados pífios no âmbito judicial: muitas prisões preventivas, apreensões de bens e delações obtidas mediante "acordos"; todavia, poucas condenações definitivas. Que retomem os magistrados com firmeza a condução do processo.
É simples e funciona assim: a polícia investiga, o Ministério Público acusa, o advogado defende e o juiz, após garantir absoluta paridade de armas entre acusação e defesa, julga com coragem e isenção.
O novo ano que se inicia exige novas posturas. Adversidades naturais e humanas desafiam a inédita gestão feminina da presidente Dilma Rousseff. Ao maior desastre natural brasileiro, com quase mil mortos somente em uma cidade do Rio de Janeiro, justapõem-se embates políticos e intrincadas questões de alta densidade jurídica e social que demandam solução segura, rápida e eficiente. O caso Cesare Battisti e sua problemática internacional; a celeuma em torno da Ficha Limpa; os royalties do petróleo; a reforma política; a liberdade de imprensa; a sobrevivência do Enem; união homoafetiva; aborto; fiscalização e defesa das fronteiras; o crescente tráfico transnacional de drogas; entre tantos outros, são alguns dos assuntos que estão a exigir tirocínio técnico e boa dose de bom senso.
Certamente esses temas também passarão pelo crivo do Supremo Tribunal Federal, que até pouco tempo estava desfalcado pela vaga deixada com a aposentadoria de Eros Grau.
A acertada nomeação de José Eduardo Cardozo para o cargo de ministro da Justiça constitui um importante passo dado pelo governo federal em direção ao combate ao crime organizado. Trata-se de político experiente e respeitado profissional do Direito, que bem apontou para a necessidade de um pacto entre União, Estados e municípios para melhorar a segurança pública. Com acerto realçou qual será o lema da atuação da Polícia Federal sob seu comando: primar pela boa investigação e o fim da espetacularização das operações. Para além da diretriz, Cardozo faz eco às advertências de Gilmar Mendes, da Suprema Corte, enviando importante lembrete não apenas às suas próprias hostes, mas também a todos os juízes: o clamor das ruas não espelha, necessariamente, clamor por justiça.
As "operações-espetáculo" desservem o interesse público, na medida em que não passam de mera ilusão de ótica para fortalecer a crença de se estar reprimindo o crime. Entretanto, o que os olhos veem não é o mesmo que a realidade demonstra: crescimento da criminalidade em todos os setores.
Passada a magia, a frustração irrompe quando se constata que o julgamento judicial não caminha de mãos dadas com o julgamento das ruas. A sensação de impunidade é dilacerante. É preciso retomar a seriedade. Deveras, a agressão a um bem jurídico tutelado pela lei penal (prática de um crime), amplamente divulgada, cria no corpo social forte expectativa de punição. Em razão da escalada da delinquência, a Justiça Criminal, aos olhos da população, se transforma numa espécie de vitrine por meio da qual o Poder Judiciário passa a ser visto, avaliado e julgado. Porém, a posição do juiz pode ser negativa ou positiva à pretensão punitiva do Estado, alternativa que por si só redunda, ocasionalmente, em pressões cujo único intento seria o de pautar a decisão judicial, gerar sua deflexão.
Evidente que a repercussão do delito potencializa naturais entrechoques da opinião pública com a decisão judicial divergente. É que esta só pode ser extraída da prova constante dos autos, ao passo que aquela, no mais das vezes, deriva de noticiários distantes da análise técnica e serena do fato.
Para um "juiz populista" é preferível prender a soltar, condenar a absolver.
Para ele, com ou sem provas, a "opinião pública" sempre tem razão. O assombroso consórcio entre juiz e acusador, infelizmente, é uma realidade no cenário forense atual. Entretanto, a culpa dessa distorção promotora de injustiças não pode ser debitada à imprensa, mas, sim, à fraqueza do juiz.
Sua tibieza diante do sensacionalismo promovido por setores da mídia não pode comprometer a liberdade de imprensa. O Judiciário prevarica quando procura transferir a terceiros a responsabilidade por seus próprios erros.
O juiz deve ter plena consciência de que a postura de independência e imparcialidade o colocará, vez ou outra, em situação desconfortável, em rota de colisão com a opinião pública. Provocará atritos com os órgãos da persecução penal. Contudo, isso não deveria nunca demovê-lo de seguir com isenção o iter do devido processo legal (due process of Law), tomando o atalho da sedução pelos aplausos passadiços e cair na armadilha de reduzir sua judicatura a uma reles chancelaria de pedidos da polícia e do Ministério Público. Um juiz que julga de acordo com o noticiário de TV ou anda afinado com o "direito achado nas ruas" não passa de um tartufo togado.
Por conseguinte, diante do aludido alerta do ministro da Justiça, é preciso, à evidência, reavaliar paradigmas construídos a partir da ampla divulgação midiática de investigações ocorridas neste último decênio. Prejulgamentos destruíram reputações. Pessoas foram jogadas na fogueira da injustiça.
Inocentes pagaram um alto preço pelo espetáculo do qual foram protagonistas compulsórios. Investigações policiais ou de CPIs, realizadas sob holofotes cinematográficos, merecem redobrada cautela dos juízes das respectivas causas. Lembrem os magistrados que o combate à criminalidade é tarefa do aparato da persecução penal do Estado, não dos juízes. Como dizia Rui Barbosa, "razão de Estado, interesse supremo, como quer que te chames, prevaricação judiciária, não escaparás ao ferrete de Pilatos! O bom ladrão salvou-se. Mas não há salvação para o juiz covarde".
Ali Mazloum: Juiz Federal em São Paulo/SP, especialista em Direito Penal e Professor de Direito Constitucional.
Artigo publicando no jornal "O Estado de São Paulo", Caderno Opinião de 09/03/11)
É simples e funciona assim: a polícia investiga, o Ministério Público acusa, o advogado defende e o juiz, após garantir absoluta paridade de armas entre acusação e defesa, julga com coragem e isenção.
O novo ano que se inicia exige novas posturas. Adversidades naturais e humanas desafiam a inédita gestão feminina da presidente Dilma Rousseff. Ao maior desastre natural brasileiro, com quase mil mortos somente em uma cidade do Rio de Janeiro, justapõem-se embates políticos e intrincadas questões de alta densidade jurídica e social que demandam solução segura, rápida e eficiente. O caso Cesare Battisti e sua problemática internacional; a celeuma em torno da Ficha Limpa; os royalties do petróleo; a reforma política; a liberdade de imprensa; a sobrevivência do Enem; união homoafetiva; aborto; fiscalização e defesa das fronteiras; o crescente tráfico transnacional de drogas; entre tantos outros, são alguns dos assuntos que estão a exigir tirocínio técnico e boa dose de bom senso.
Certamente esses temas também passarão pelo crivo do Supremo Tribunal Federal, que até pouco tempo estava desfalcado pela vaga deixada com a aposentadoria de Eros Grau.
A acertada nomeação de José Eduardo Cardozo para o cargo de ministro da Justiça constitui um importante passo dado pelo governo federal em direção ao combate ao crime organizado. Trata-se de político experiente e respeitado profissional do Direito, que bem apontou para a necessidade de um pacto entre União, Estados e municípios para melhorar a segurança pública. Com acerto realçou qual será o lema da atuação da Polícia Federal sob seu comando: primar pela boa investigação e o fim da espetacularização das operações. Para além da diretriz, Cardozo faz eco às advertências de Gilmar Mendes, da Suprema Corte, enviando importante lembrete não apenas às suas próprias hostes, mas também a todos os juízes: o clamor das ruas não espelha, necessariamente, clamor por justiça.
As "operações-espetáculo" desservem o interesse público, na medida em que não passam de mera ilusão de ótica para fortalecer a crença de se estar reprimindo o crime. Entretanto, o que os olhos veem não é o mesmo que a realidade demonstra: crescimento da criminalidade em todos os setores.
Passada a magia, a frustração irrompe quando se constata que o julgamento judicial não caminha de mãos dadas com o julgamento das ruas. A sensação de impunidade é dilacerante. É preciso retomar a seriedade. Deveras, a agressão a um bem jurídico tutelado pela lei penal (prática de um crime), amplamente divulgada, cria no corpo social forte expectativa de punição. Em razão da escalada da delinquência, a Justiça Criminal, aos olhos da população, se transforma numa espécie de vitrine por meio da qual o Poder Judiciário passa a ser visto, avaliado e julgado. Porém, a posição do juiz pode ser negativa ou positiva à pretensão punitiva do Estado, alternativa que por si só redunda, ocasionalmente, em pressões cujo único intento seria o de pautar a decisão judicial, gerar sua deflexão.
Evidente que a repercussão do delito potencializa naturais entrechoques da opinião pública com a decisão judicial divergente. É que esta só pode ser extraída da prova constante dos autos, ao passo que aquela, no mais das vezes, deriva de noticiários distantes da análise técnica e serena do fato.
Para um "juiz populista" é preferível prender a soltar, condenar a absolver.
Para ele, com ou sem provas, a "opinião pública" sempre tem razão. O assombroso consórcio entre juiz e acusador, infelizmente, é uma realidade no cenário forense atual. Entretanto, a culpa dessa distorção promotora de injustiças não pode ser debitada à imprensa, mas, sim, à fraqueza do juiz.
Sua tibieza diante do sensacionalismo promovido por setores da mídia não pode comprometer a liberdade de imprensa. O Judiciário prevarica quando procura transferir a terceiros a responsabilidade por seus próprios erros.
O juiz deve ter plena consciência de que a postura de independência e imparcialidade o colocará, vez ou outra, em situação desconfortável, em rota de colisão com a opinião pública. Provocará atritos com os órgãos da persecução penal. Contudo, isso não deveria nunca demovê-lo de seguir com isenção o iter do devido processo legal (due process of Law), tomando o atalho da sedução pelos aplausos passadiços e cair na armadilha de reduzir sua judicatura a uma reles chancelaria de pedidos da polícia e do Ministério Público. Um juiz que julga de acordo com o noticiário de TV ou anda afinado com o "direito achado nas ruas" não passa de um tartufo togado.
Por conseguinte, diante do aludido alerta do ministro da Justiça, é preciso, à evidência, reavaliar paradigmas construídos a partir da ampla divulgação midiática de investigações ocorridas neste último decênio. Prejulgamentos destruíram reputações. Pessoas foram jogadas na fogueira da injustiça.
Inocentes pagaram um alto preço pelo espetáculo do qual foram protagonistas compulsórios. Investigações policiais ou de CPIs, realizadas sob holofotes cinematográficos, merecem redobrada cautela dos juízes das respectivas causas. Lembrem os magistrados que o combate à criminalidade é tarefa do aparato da persecução penal do Estado, não dos juízes. Como dizia Rui Barbosa, "razão de Estado, interesse supremo, como quer que te chames, prevaricação judiciária, não escaparás ao ferrete de Pilatos! O bom ladrão salvou-se. Mas não há salvação para o juiz covarde".
Ali Mazloum: Juiz Federal em São Paulo/SP, especialista em Direito Penal e Professor de Direito Constitucional.
Artigo publicando no jornal "O Estado de São Paulo", Caderno Opinião de 09/03/11)
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