The protection of women’s human rights by the Judiciary through the application of international treaties: empirical analysis of Brazilian jurisprudence

Abstract

The research aims to investigate whether Brazilian courts apply international conventions on women’s human rights in their decisions and whether they exercise control over the conventionality of national laws in this matter. It adopts an empirical jurisprudential research methodology, with a quantitative approach, analyzing all judgments handed down over a period of 13 years in a survey carried out on the jurisprudence of 33 Brazilian courts. Of around 5 thousand decisions that cite human rights treaties in their abstract, only 101 (2%) deal with women’s rights. It concludes that among the decisions on the topic: 41.5% were issued by the TJMS; 95% of cases involve criminal or criminal procedural matters (the vast majority being cases of domestic violence); cases in which the convention is invoked by the party represent almost twice the number of situations in which it is invoked by the judge; in 93% of cases there is no examination of the conventionality of national law, but only discussion about whether or not the convention applies to the case; in 6% of cases the national law was declared unconventional; in 53.5% of cases the court accepted the argument of violation of the convention, having denied the argument in 46.5% of decisions.