Brazilian Journal of Empirical Legal Studies

LIMITS TO THE ADMINISTRATIVE TECHNICAL DISCRETIONARY BY TECHNICAL STUDIES OF WATER IMPACTS AS CONDITIONERS IN THE ENVIRONMENTAL LICENSING OF MINING ENTERPRISES IN THE FEDERAL DISTRICT, BRAZIL

Gabriela Garcia Batista Lima Moraes — 2024-11-05

There are clauses in the environmental license that define restrictions, requirements and measures of prevention and mitigation as conditions. These conditions-clauses have a role of damage prevention in the environmental licensing of an activity. The definition of these measures occurs within the public discretionary action of the environmental agency, which is limited by legal regulations applied. The present study deals with the importance of technical and scientific instruments present in environmental licensing as technical limits and materialization of the principle of proportionality in the definition of these conditions-clauses. These technical and scientific instruments work within the concept of technical discretionary in the administrative action in the field of study of Water Resources Law. From a study of four administrative processes of environmental licensing of mining activities in the Federal District in Brazil – obtained within the Brasília Environmental Institute – we studied the formation of conditions-clauses aimed at prevention, adaptation and mitigation of impacts on water resources from mining activities, while observing how these conditions-clauses are configured, reflecting on the limits of the technical and administrative action of the environmental agency. As a general conclusion, among the technical instruments that can guide the technical-administrative decision-making, those related to the prevention of water impacts are the Degraded Areas Recovery Plan, the Topographic and Recomposition Plan, the Monitoring and Hydrogeological Study, Drainage systems and Settling basins. Because they provide technical information on the affected area, they have shown direct relevance to the prevention of water impacts.

IDENTIFICAÇÃO E NOTIFICAÇÃO DE TRABALHO INFANTIL NA ESTRATÉGIA SAÚDE DA FAMÍLIA

Nathália Oliveira — 2024-06-28

It analyzes the factors related to the identification, notification, and recognition of child labor as child and youth violence by professionals from the Family Health Strategy in Manaus, Amazonas. The research used a cross-sectional study method and covered 611 professionals (52.5% of those eligible) from basic health units. Data were collected through self-completion of a questionnaire, consisting of the following modules: sociodemographic characteristics; professional training and performance; and level of knowledge regarding aspects of child and youth violence. For bivariate analysis, Pearson's chi-square, and Fisher's exact tests (p<0.05) were used. The results indicate that only 4.8% of professionals identified situations of child labor during their work in the Family Health Strategy and only 13.1% recognized the domestic modality. Participation in training on child and youth violence (p=0.018) and self-report of violence in childhood (p=0.024) were statistically relevant for identifying child labor. Regarding the recognition of domestic child labor, the highlights are the level of education (p=0.013), the length of training (p=0.049), participation in training on child and adolescent violence (p=0.004) and the level of knowledge (p =0.003). The professional category (p<0.001) was relevant regarding the intention to notify. It is concluded that reducing child labor requires visibility of the problem and an understanding of the severity of the repercussions for the individual's development. The research demonstrated the importance of continuing education, through participation in training on violence against children and adolescents with a focus on identification, notification, and awareness strategies for health professionals.

A JUDICIALIZAÇÃO DA SAÚDE E OS IMPACTOS ORÇAMENTÁRIOS EM MUNICÍPIOS DE FRONTEIRA INTERNACIONAL

Manoela de Carvalho — 2025-02-03

The search by judicial institutions to obtain access to health technologies such as medicines, procedures, products such as prosthetics, processed food, hospital beds that are unavailable to the user, involves costs for the SUS and brings consequences to the previously planned financial budget. Study with the objective of analyzing the judicialization of public health and the financial impact in the municipality of Foz do Iguaçu and the municipalities that are part of the 9th Health Region (RS), it was developed based on secondary data obtained from the website of the National Council of Justice (CNJ) from the sample of 295 Technical Notes (NT), in the period from 2020 to 2022. Results show that more than 60% of the legal actions were in favor of the authors, the majority were filed to access goods and services already incorporated into the SUS, medicine It was the health technology most sought after through the courts, prices ranged from R$21.78 to R$474,676.24. Ophthalmology and oncology were the most judicialized medical specialties. It is concluded that the judiciary, when seeking to guarantee the right to access to goods and services already promised and incorporated into the SUS, can interfere in the planning of health actions aimed at the collective, even ensuring the individual right asserted by the Federal Constitution. It suggests the possibility of countering judicialization with SUS management actions with health promotion and illness prevention policies from the first level of health care and through the implementation of broader and more universal social policies.

THE VICTIM AND THE PROSECUTION OFFICE IN THE BRAZILIAN CRIMINAL JUSTICE SYSTEM

Maria Eduarda de Castro Carneiro e Corrêa — 2024-12-05

Victims of crime have brought changes to the criminal justice system throughout the Western world. In Brazil, the Public Prosecutor's Office has taken responsibility for protecting their rights. Since 2017, the National Council of Public Prosecutors has established a policy of valuing victims and, to this end, has promoted new practices in criminal justice. The aim of this article is to understand whether these new practices involving victims can represent anything new in relation to the ideas of modern penal rationality. This research is based on an empirical corpus of official documents produced between 2017 and 2021 by the Public Prosecutor's Office. We carried out a qualitative analysis of these documents using a predominantly deductive approach, and the results point to a permanence in the way of understanding crime and criminal sanctions that do not change with greater attention to the victim.

WHAT PANDEMIC HAS TO TEACH US ABOUT THE RIGHT OF CONTRACTS

Gean Carlos Balduino Junior — 2024-09-27

This research aims to analyze the reflections of the Emergency and Transitional Legal Regime (RJET), governed by Law No. 14,010/2020, within the scope of the Court of Justice of Mato Grosso (TJMT). That temporary law was to regulate the effects of private relations in the context of the pandemic of the new coronavirus (COVID-19), which is why the section of this article refers to the consequences of its short validity in civil contracts. Initially, the deductive method was used for the development of this study, since it was based on the analysis of the abstraction of the contractual panorama in force during the pandemic, weaving on it a criticism based on the principles of contract law. In another turn, through the empirical method, a documentary research was also carried out, through analysis of the judges from the TJMT, to identify the different implications of the RJET in the practice of judicial review of contracts. In agreement, it was possible to realize that Law No. 14,010/2020 was not enough to prevent access to the Mato Grosso Judiciary to call for the revision of contracts due to the imbalance caused by the pandemic. It was also identified that the requirements reinforced by the transitional legislation on contractual review almost never had sheltered by the judge, since it has numerous tools that enable it to adapt the contractual terms to effect the values emanating from the Constitution and guarantee ingthe dignity of the parties involved, a hermeneutic exercise that proves more effective than the issue of its own and transitory legislation.

¿ES POSIBLE GANAR LA BATALLA A LA CORRUPCIÓN JUDICIAL?

Santiago Basabe-Serrano — 2024-09-27

Este artículo identifica los cambios en el comportamiento de la corrupción judicial alrededor del mundo. Dado que la mayoría de trabajos sobre este tema se concentran en estudios de caso o análisis sincrónicos, lo que acá se prioriza es la evolución histórica de la corrupción judicial para de allí establecer algunos patrones. Uno de ellos es que si bien dicho fenómeno social ha descendido en algunos países, la mayoría de ellos son europeos, continente donde el problema no es demasiado serio. De otro lado, en los países en los que la corrupción judicial se ha acentuado corresponden prioritariamente a África y América, espacios geográficos en los que la ausencia de transparencia en el Poder Judicial es gravitante. Finalmente, en la mayoría de países los niveles de corrupción judicial no han variado positiva ni negativamente a lo largo de la última década. Los países con altos niveles de corrupción judicial se mantienen igual y lo propio ocurre con aquellos en los que este fenómeno no presenta resultados socialmente alarmantes.

RESOCIALIZE

Luiz Antonio Chies — 2024-11-06

Is resocialize/resocialization an adequate notion/concept for tackling the penitentiary issue? This, in short, is the question that the text aims to answer. Result of qualitative research – using questionnaires and interviews – on the meanings attributed and perceived by different subjects and groups involved in the execution of custodial sentences, the discussion and analysis of the data uses references such as Eugenio Raúl Zaffaroni and Alessandro Baratta to tension the ambivalences and ambiguities that it encompasses. It suggests, in the end, that it should stop being used within the scope of Penal Services Policies and in the area of research on the penitentiary issue, given that its manageability of meanings entails both the invisibility of the relationships between social structure and punishment, and allows illusions of shared understandings which, in reality, mask divergent projects in relation to punishing and hold responsible in contemporary societies.

ACCESS RIGHTS IN ENVIRONMENTAL MATTERS IN THE RAIZAL COMMUNITY AS AN EXPRESSION OF BIOCULTURAL RIGHTS

Jorge Eduardo Vásquez Santamaría — 2025-02-03

Through a qualitative methodological design in which the hermeneutic and phenomenological methods were used, and the semi-structured in-depth interview and focus group techniques, this work focuses on the question: ¿Why do the rights of access to information, participation and justice in environmental matters in the Raizal ethnic community of the archipelago department of San Andrés, Providencia and Santa Catalina, constitute expressions of biocultural rights in the Colombian legal system? The resolution of the problem initially allows to disclose in depth the methodological experience used from which the findings were obtained. The first conceptualizes the rights of access in environmental matters as dimensions of the fundamental rights to information, participation and justice, giving rise to the question ¿What are the rights of access in environmental matters as dimensions of the fundamental rights to information, participation and justice? and the second, establishes the significance of the raizality as a differential ethnic condition from which the rights of access in environmental matters are configured as expressions of biocultural rights, an objective that is reflected in the question ¿What meanings does the raizality of the community of the archipelago department of San Andrés, Providencia and Santa Catalina have that contribute to the configuration of the rights of access in environmental matters as biocultural rights?

A VIEW OF HABEAS CORPUS JUDGMENTS OF TRIBUNAL DE JUSTIÇA DE MATO GROSSO DO SUL FROM 2019 TO 2024

Tiago Normanha Jara — 2025-01-13

This article investigates the application of the nemo tenetur se detegere principle in decisions of Habeas Corpus in the Tribunal de Justiça de Mato Grosso do Sul (TJMS), focusing on informal confessions in drug trafficking cases between 2020 and 2024. Based on the following research question: “How does the Tribunal de Justiça de Mato Grosso do Sul justify its decisions in Habeas Corpus rulings that point to the nullity of informal confessions obtained by police officers during the investigation of drug trafficking crimes from 2020 to 2024?” Through documentary analysis of acórdãos and a literature review, this qualitative research identifies significant resistance among judges to adequately address informal confessions. It was found that most cases resulted in denied orders without recognizing the nullity of confessions obtained without informing the right to remain silent. The research concludes by highlighting the discrepancy between international human rights principles and legal practice, underscoring the need for a more critical approach aligned with fundamental rights in the Brazilian judiciary.

THE SARS-COV-2 (COVID-19) PANDEMIC EFFECTS ON INTERNATIONAL STUDENTS AND RESEARCHERS AT BRAZILIAN UNIVERSITIES

Cynthia Soares Carneiro — 2024-11-21

During the 2020 border blockade caused by the covid-19 pandemic, an interdisciplinary research team conducted quantitative research regarding enrolled international students at Brazilian public universities. The objective was to gather their socioeconomic profile, location, and effects from isolation and remote classes in their Brazilian stay, studies, and academic research. The data presented in this report were collected from an online survey submitted to participants and subsequently processed with the Tableau Public platform that connect the points to facilitate its interpretation. The platform enabled the following items to be visualized: academic immigration profile, location in Brazilian territory, destination university, area studied, degree obtained, and legal immigrant status. The research also indicated their living conditions and challenges encountered under the government migration rules. The data were initially compared with spreadsheets from the National Migration Registry System (SISMIGRA), provided by the federal police. They were later complemented with open interview information carried out from international students’ collaboration. Here we present and analyze only the quantitative results. We hope that they can support academic internationalization policies, optimizing federal police practices, and these qualified immigrants’ reception in Brazilian universities.

HE END OF OUR POLICE?”

Fábio Lopes Toledo — 2024-11-21

The paper aims to examine possible consequences generated by the Appeal in Habeas Corpus 158.580, decision of the Superior Court of Justice that considered illegal stop and frisk based only on reasonable suspicion. The research has as its starting point an event on stop and frisk in which the speaker, an audit judge from the Military Justice, makes several criticisms of the position adopted by the Superior Court of Justice, as well as presents positions contrary to the decision offered by other actors. From the elements presented at the event, we sought to explore the impacts of the decision on other dispute arenas. Within the scope of the Legislative Power, all the proposals that had stop and frisk as their object were researched. Regarding the Judiciary, jurisprudential research was carried out to observe how many decisions mentioned the RHC 158.580, as well as the results of the judgments. At the end of the work, in addition to criticisms presented by the media, it was possible to note the resistance from state courts of justice in following the position adopted by the Superior Court of Justice, as well as the creation of bills contrary to the decision, prepared by parliamentarians, notably defenders of the Military Police.

Judicial review of voluntariness for homologation of the non-prosecution agreement: empirical research in the criminal courts of Goiânia/GO

Vinicius Gomes de Vasconcellos — 2024-10-07

The criminal non-prosecution agreement (CNPA), similarly to other mechanisms of negotiated criminal justice, presupposes the consent of the accused, who, in exchange for benefits, consents to the accusation and waives fundamental rights such as the right to remain silent, to present evidence, and to appeal. Thus, there is a requirement for it: voluntariness, as the individual must be able to choose in an informed manner whether to undergo the traditional process or submit to the established conditions. In accordance with the legislation, such a requirement, together with legality, shall be supervised by the court at the time of the approval hearing (28-A, §4 of the CPP). Therefore, this research aims to verify the execution of such an act and its content, in an attempt to analyze how judges assess the voluntariness of criminal agreement. Through literature review and empirical research involving the observation of 100 (one hundred) homologation hearings in 11 (eleven) Criminal Courts of Goiânia/GO/Brazil, it is concluded that the judicial scrutiny of voluntariness is conducted in a superficial manner, lacking effective questioning of the accused regarding the determinants of decision-making and the information considered therein. When not ignored, the legal requirement mandating a hearing is mitigated, as it becomes a bureaucratic procedure without effective verification and oversight of the agreement. Consequently, recommendations have been made to consolidate and strengthen judicial review in the Brazilian negotiated criminal justice system.

Social Vulnerability and Drug Trafficking Arrests

Ricardo Gonçalves Vaz de Oliveira — 2024-12-05

Social vulnerability has a notable influence on health, well-being, and the risk of human rights infringements. This cross-sectional observational study aims to understand the socioeconomic and demographic profile of individuals arrested for drug trafficking in Fortaleza-CE, as well as to identify the degree of social vulnerability in the areas they inhabit. Furthermore, the study seeks to determine if these aspects are associated with judicial decisions made during custody hearings. For this purpose, data from 728 arrest warrants recorded between March 2018 and September 2019 were examined, using descriptive statistics, chi-square tests, and spatial distribution analysis. The analysis revealed that the majority of those arrested are young, brown-skinned, single men with primary education and without children. A statistically significant association was identified between the Social Vulnerability Index (IVS) and the outcomes of custody hearings, suggesting that the residential context of the arrested individuals may significantly influence incarceration decisions.

SEXUAL VIOLENCE AND THE FORMATION OF LEGAL CONSCIOUSNESS AMONG THE INDIGENOUS ARHUACO WOMEN

EDWIN MEDINA — 2024-11-18

The field of legal anthropology has widely debated Indigenous Peoples’ justice practices. However, the legal perspective of sexual offenses remains understudied. In this respect, this paper depicts the Arhuaco people's justice system, from the spiritual and political entities to the procedure, and sanctions, touching upon how the homogenized society influences Indigenous People’s justice in Arhuaco society. Furthermore, this work explores how the Arhuaco people resolve cases in which community members are allegedly responsible for committing sexual crimes. It also highlights some challenges connected to raising this type of offense and its lack of trust in authorities, disregard for the victim's version, and the difficulty of verifying these cases. During the fieldwork in the Arhuaco territory, the applied method follows some parameters of the procedural paradigm-legal conscience studies as an interpretive framework to understand how the Arhuaco women conceive the legal phenomenon. As a result, this study offers some insights into the Arhuaco women's perceptions of justice, specifically concerning sexual abuse cases. Such a perception is analyzed based on the Arhuaco women's political position, cultural and lineage origin, illustrating how they constantly go through inter-legality practices to claim justice for sexual offenses.

THE BODY AS A BATTLEGROUND

Rebecka Wanderley Tannuss — 2024-06-28

The objective of this research was to analyze the main arguments and narratives of the justice system in cases involving women who have been arrested and convicted for transporting illegal drugs to prisons. To this end, documentary research was carried out, based on the analysis of 23 decisions of the STF (Federal Supreme Court) and STJ (Supreme Court of Justice), which were selected until the year 2021, about women who were arrested transporting drugs to prisons in Brazil. The results found indicate that the aforementioned women arrested were, mostly, first-time offenders, who carried drugs in their private parts to male units, mothers or partners, arrested during the intimate search procedure. They carried a small quantity of drugs, and were in pre-trial detention. With regard to the narratives of the justice system, among the arguments used by the lower courts, there were speeches focused on a supposed female dangerousness. On the other hand, the speeches pronounced by the higher courts were more more protective in terms of guaranteeing rights in the sense of defending the removal of pre-trial detention and by the understanding that women were not linked to criminal organizations. It can be concluded that the body of women who transport drugs to prisons is constituted as a territory of disputes between legal and illegal control instances. Furthermore, the speeches given by the justice system are configured as part of these control mechanisms, and even though the higher courts present themselves as progressive in the face of the current reality of female incarceration, there is still a long way to go when it comes to the imprisonment of women for the crime of drug trafficking.

An evidence-based code?

Mártin Gawski — 2024-11-13

A favorable scenario for the use of empirical socio-legal research in legislative reasoning could be envisioned when discussions culminating in the passing of Law nº 13.105/2015, the Brazilian Code of Civil Procedure (CPC/2015), began in the National Congress. After all, there was a widespread perception in the Brazilian legal community that legislative changes in the Civil Procedure Law were being conducted without a basis in scientific evidence. In addition, an agenda of empirical studies on Civil Justice was already under development in Brazil. In this context, how did the social actors who led the legislative debates over the CPC/2015 make use of empirical socio-legal research? To answer this question, a detailed analysis of the documentation produced throughout the legislative process was carried out, in search of discourses based on empirical research. This documentation comprises the justification of the draft of the law written by the Committee of Jurists, and the final opinions of the Federal Senate and the Chamber of Deputies’ special commissions, as well as records of public meetings and hearings that preceded them. Contrary to what was expected, the prospects for the development of an evidence-based code were not confirmed. The use of empirical socio-legal research in the legislative debates over the CPC/2015 was scarce, with recurrent references to an empirical study on access to justice from the 1970s, which did not include data on the reality of Brazil. Empirical data was presented to support claims occasionally, but lacking in rigor, with imprecision in the identification of the sources of information and decontextualized use of statistical surveys. Perceptions about the real functioning of law based on the personal experiences of social actors prevailed in the legislative debates.

THE REVITIZATION OF WOMEN IN MINAS GERAIS

Gabriela Maia Salomão — 2025-02-03

In this article, we present an analysis of the decisions rendered by the Court of Justice of the State of Minas Gerais (TJMG), aiming to demonstrate whether and to what extent family law prevails over women's rights in cases of domestic and family violence, considering the absence of specialized courts to deal with this issue. For this purpose, an initial examination was conducted on all the judgments addressing intersectional issues involving the application of the Maria da Penha Law (LMP) (Law 11.340/2006), such as gender-based violence, custody, alimony, and others. Subsequently, 26 judgments were selected that simultaneously addressed issues related to Domestic Violence Courts and Family Courts but were handled in single-nature courts at the first instance, instead of hybrid courts, as indicated in the Maria da Penha Law. Through the content analysis of these documents, it was possible to observe that women's rights are often relegated to a secondary position in the face of arguments that prioritize "the best interest” of the child and adolescent. We conclude that the judicial system in Minas Gerais (MG) tends to reinforce the revictimization of women in situations of violence and, simultaneously, discourage access to Justice.

FAMÍLIAS (IM)POSSÍVEIS SEGUNDO O PODER JUDICIÁRIO

Janaina Dantas Germano Gomes — 2025-02-12

Resumo: Neste artigo busco restituir parte de minha pesquisa de campo de doutorado realizada com autos de Destituição do Poder Familiar e profissionais que atuam com referidos casos. A partir da trajetória de Martine, demonstro alguns dos mecanismos pelos quais as famílias extensas são desconsideradas como arranjos de cuidado possíveis para as suas próprias crianças acolhidas. Demonstro, por meio de entrevistas coletadas, a presença de imposição da adoção como arranjo preferível ao investimento em famílias de origem por meio de diversas formas, dentre elas, a pressão sobre as técnicas das varas. À guisa de conclusão, aponto para o desequilíbrio entre o reconhecimento de novas famílias, dentre elas as receptoras de crianças pela adoção, e o permanente alheamento de direitos das famílias que perdem suas crianças para o Poder Judiciário e que, potencialmente, serão colocadas em famílias substitutas.

TRUE PRECEDENTS, MANAGERIAL PRECEDENTS AND APPLICATION DECISIONS

José Luiz Nunes — 2024-09-14

This article proposes a typology of judicial opinions in general with the goal of clarifying the law unraveled through jurisprudence, taking as a case study the Brazilian Supreme Court. According to the proposed classification, judicial opinions might be true precedents, managerial precedents, and application decisions. True precedents establish rules that do not restrict the Court’s own jurisdiction. On the other hand, managerial precedents are those opinions that establish new restrictions upon the Court’s own jurisdiction. As we show, managerial precedents are often not clear regarding positive law, and its high frequency might reduce the visibility of true precedents. Finally, application decisions, by their turn, are limited to applying a previously existing legal source (including, but not restricted to, true precedents). Data from the Brazilian Supreme Court suggests the viability of the distinction and its practical and theoretical importance, especially for quantitative inquiries, as an experiment conducted with decision trees reveals that citations received are highly informative to distinguish between true precedents and managerial precedents.

QUANTITATIVE RESEARCH IN LAW

Bruna Cabrera De Bonito — 2025-01-13

Traditionally, there is a predominance of qualitative research over quantitative research in academic studies in the legal field. However, the use of quantitative methods in law (statistical analysis, modeling, simulation, among others) has become an area on the rise in the legal field, seeking to understand the legal impacts in a more precise and objective way. In this sense, the main objective of this article is to discuss quantitative research in Law, in addition to addressing some empirical works carried out with legislation, jurisprudence and patents. Methodologically, this is a descriptive study, in which the inductive method was used, based on the idea that legal research tends to be mostly qualitative and that the expansion of such research in Law can enable a more comprehensive understanding. of the object of study. This work is justified insofar as it is necessary to quantitatively explore the concrete application of the law. In this sense, the dialogue between theory and data adds up, as while some studies prioritize hypothesis testing, others aim at elucidating specific observations and developing new hypotheses.

Português

Atalá Correia — 2024-06-28

The provision of alimony and child support, owed by one family member to another, has remote origins and well-established legal tradition. This paper identifies these origins, where the offsetting of alimony payments was banned. The Brazilian legal system, was well as several others, prohibits the compensation of alimony. This rule was consolidated in articles 373, II, and 1.707, both of the Brazilian Civil Code. However, Brazilian Courts occasionally circumvent this rule. We sought, therefore, to identify these exceptions, their justification and other characteristics of recent jurisprudence, by means of empirical research. We selected thirty-six rulings from the Brazilian Superior Court of Justice, outlining their main characteristics. Judicial innovation was contrasted with an immemorial rule. The exception is made under the argument of prohibiting unjust enrichment. The practice proved to be fair because it was well limited to expenses that were essential for creditor’s survival, namely expenses with health, education and housing. It was also necessary to scrutinize the decisions from a gender perspective, outlining challenges for the advancement of the debate.

“FREE MATERNITY”: THE APPLICABILITY OF COLLECTIVE HABEAS CORPUS 143.641/SP BY THE COURT OF JUSTICE OF RIO GRANDE DO SUL – TJRS

Leandro Mateus Silva de Souza — 2024-12-05

The purpose of this article is to understand how the criminal chambers of the Rio Grande do Sul Court of Justice (TJRS) are making decisions regarding the applicability of Habeas Corpus No. 143.641/SP. The proposal seeks to analyze how the judiciary, in the second instance of Rio Grande do Sul, is judging the granting of the replacement of pre-trial detention with house arrest for pregnant women, women who have recently given birth, or those who have under their custody children under the age of 12 or those who are disabled, excluding cases of crimes committed through violence or grave threat against their descendants or in exceptionally rare situations, which must be properly justified by the judges to deny it. For this purpose, as the main methodology for data collection, the jurisprudence search mechanism on the TJRS's electronic site was used, in which the keyword "HC Coletivo 143641" was entered, without quotes, with specific filtering to obtain decisions only from the eight criminal chambers of the court. The search target was the headings of the decisions and the survey’s cutoff date was limited to April 19, 2022. The results presented in the research prove that in the vast majority of the eight criminal chambers of the TJRS there is a significant difficulty in effectively fulfilling Habeas Corpus No. 143.641/SP and the current legislation itself, even in situations where there is no violence or grave threat in the conduct analyzed, or another aggravating factor that would justify not granting the measure of house arrest in favor of mothers.

FROM EFFECTIVENESS TO LEARNING

Lucas Lanner De Camillis — 2025-02-03

This article aims to analyze the evolution of the protection of reproductive and sexual rights in the Inter-American Human Rights System (IAHRS), using an empirical study of the decisions rendered by the Inter-American Court of Human Rights (IACHR), its supervision of compliance with sentences by the Court, and the decisions by the Inter-American Commission on Human Rights (IACHR Commission). The primary objective is to verify the effectiveness of these decisions within the internal orders of member states regarding these rights, as well as the normative learning due to constitutional conversations held between state orders and the international order of the Inter-American System. The main question raised is whether the decisions issued by the Inter-American Human Rights System that mention sexual or reproductive rights are effective and binding within internal legal orders. In other words, is the learning work conducted by the Court, aimed at recognizing the internal legal orders of the states bound to the Inter-American System, sufficient to promote learning in the particular rationalities of the state orders in pursuit of protecting the human rights defended by the Inter-American System? The methodology used in the article—beyond case studies—is based on the analysis through the lens of Marcelo Neves' transconstitutionalism. This way, it is possible to observe whether the communicational decisions of the IAHRS are received and accepted by the internal legal orders of the states linked to it, thus promoting the evolution of sexual and reproductive rights.