The decision of the Federal Supreme Court and the (im)possibility of not applying the guarantee judge in cases of domestic and family violence against women: legal implications and debates

Abstract

This article sought to analyze the decision of the Supreme Federal Court regarding the non-application of the "judge of guarantees" in cases of domestic violence, the implications, and the legal debates regarding the subject. The article's question consists of whether there is a violation of the accusatory principle in the case of not applying the rule of the "judge of guarantees" to cases of domestic violence. To answer this, it is necessary to verify if there is a violation of the accusatory principle in the case of not applying the "judge of guarantees" in cases of domestic violence. Additionally, it is essential to explain what the accusatory principle consists of in the Brazilian legal system, as well as to define what the "judge of guarantees" is and what its attributions are in the criminal process, and finally, to analyze in detail the decision of the Supreme Federal Court in the Direct Actions of Unconstitutionality 6.298, 6.299, 6.300, and 6.305, which deal with the introduction of the "judge of guarantees" by the Anti-Crime Package (Law No. 13.964/2019), identifying the legal foundations and arguments presented. For this, the deductive approach method will be adopted through legal research. The research design will be exploratory, using the technique of data collection in doctrines, legislations, and jurisprudence, conducting a bibliographic review, and identifying pertinent legal foundations. The research will be theoretical and qualitative. It is concluded that there is no violation of the accusatory principle in the case of not applying the "judge of guarantees" in cases of domestic violence because the implementation of the "judge of guarantees" reinforced the accusatory model advocated by the CF/88, as well as the complex dynamics behind the context of domestic violence.