NORMATIVE GAPS IN THE GENDER-PERSPECTIVE TRIAL PROTOCOL OF THE BRAZILIAN NATIONAL COUNCIL OF JUSTICE (CNJ) AND THEIR IMPLICATIONS FOR DUE PROCESS OF LAW

Abstract

This study presents, based on a direct analysis of the administrative limits of the National Council of Justice’s jurisdiction, the existence of normative gaps in the “Protocol for Trials with a Gender Perspective” (CNJ, Resolution No. 492/2023 and Ordinance No. 27/2021) within the fields of Criminal Law and Family Law. The research examines antinomies between legal norms and the guarantee of fundamental rights (the adversarial principle, full defense, presumption of innocence, and judicial impartiality). The general objective is to analyze, from a critical and guarantist perspective, the possible impacts of applying the CNJ’s Protocol for Trials with a Gender Perspective on procedural equality and on the defendant’s constitutional guarantees in Criminal and Family Law. In this vein, as specific objectives, the study seeks to identify how agendas aimed at recognizing a gender perspective may be conveyed to judges in order to promote robust adjudication in disputes involving different genders, as well as to examine possible operational gaps, such as: (i) the absence of minimum procedural parameters to reconcile the gender perspective with the evidentiary standard of the Brazilian Code of Criminal Procedure (CPP); (ii) disregard for basic principles of Criminal Law (presumption of innocence, etc.); (iii) excessive weight attributed to the victim’s testimony in the absence of corroborating elements; and (iv) insufficient clear guidance in Family Law and the marginalization of the Brazilian Parental Alienation Law. The study argues that, in the contemporary context, there persists a movement toward the mitigation of the defendant’s fundamental guarantees in cases framed under a gender perspective; such tensions become more visible when disputes involve physical or psychological violence, making it necessary to establish minimum benchmarks to safeguard the protection of fundamental rights and due process of law.