Controle de pronunciamentos judiciais discriminatórios contra as mulheres?

Abstract

This study aims to analyze the control mechanisms of discriminatory judicial pronouncements against women in Brazil. It correlates the provision of jurisdiction to power structures, women's participation in the legal area, and women's equal access to justice to verify the recurring incidents of non-compliance with equality in the decision-making process, as well as the possible problems within formal procedures that legitimize the rebuke of discriminatory decisions against women. This work consists of theoretical and normative research carried out through the examination of lower Court's opinion and the first Court of Appeal's decision, in addition to the study of scholarly contributions whose references pervaded the perspective of Silvia Pimentel, Ana Lúcia Pastore Schritzmeyer, Valéria Pandjiarjian, Marcelo Neves, Lênio Streck, Bianor Arruda, Flavia Piosevan, Valério Mazzuoli, among others. The investigation was proceeded through the hermeneutic analysis of the limits of the judicial decision highlighting the interpretative and argumentative process and the constitutional function of the judge to, consequently, delimit the discriminatory judicial pronouncement against women and its implications in the Democratic State of Law. Furthermore, in contrast with the duties of acting legally, the discretion of the judge was taken into account as an agent obliged to perform their activities impersonally, morally, publicly, and civilly in compliance with human rights standards. It brings up to analysis judgments regarding the abusive use of non-positive language in the text of the judicial decision and subsequent disciplinary accountability. Given the Brazilian legislative framework on the subject, the administrative control of the National Council of Justice (CNJ) for assessing the conventionality of discriminatory decisions made by magistrates against women was presented as a sanitizing possibility, based on the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the InterAmerican Convention On The Prevention, Punishment, and Eradication of Violence Against Women (Convention of Belem do Para), showing that all women under the jurisdiction of the Brazilian State have access to procedures for the protection and promotion of the human right not to be discriminated against because of their gender. In the end, it was proposed as an innovative measure the amendment of Law nº 7.716 / 1989 and art. 140, §3, of the Brazilian Penal Code, as well as the supplementation of Resolution n° 02/2016 of the National School for the Training and Improvement of Magistrates (ENFAM).