1.1 The Genesis and Constitutional Framework of the Maria da Penha Law
The Maria da Penha Law (Law No. 11.340/2006) represents a constitutional milestone in the protection of women’s rights in Brazil. Its creation responds not only to internal demands but also to international human rights commitments assumed by the Brazilian State, particularly following the emblematic Case 12.051 before the Inter-American Commission on Human Rights. The law establishes a comprehensive system of protection that transcends traditional legal boundaries, creating what scholars have termed a “microsystem” of women’s protection. This microsystem operates within the constitutional framework established by Article 226, §8º of the Brazilian Constitution, which explicitly states that “the State shall ensure assistance to the family in the person of each of its members and shall create mechanisms to suppress violence in the sphere of family relationships” .
The legal architecture of the Maria da Penha Law is structured across seven titles and 46 articles, systematically addressing everything from conceptual definitions to procedural mechanisms . The law’s primary objective is to create mechanisms to prevent and curb domestic and family violence against women, a mandate derived from both constitutional provisions and international treaties ratified by Brazil, including the Belém do Pará Convention, the San José Pact, and the Convention on the Elimination of All Forms of Discrimination against Women . The recognition of violence against women as a human rights violation (Article 6 of the Law) elevates its legal treatment beyond ordinary criminal or civil matters, establishing special obligations for the State and specific protections for victims.
1.2 International Law and Constitutional Integration
The internationalization of women’s rights has fundamentally shaped the Maria da Penha Law. As a signatory to multiple international conventions, Brazil has assumed positive obligations to prevent, punish, and eradicate violence against women. These international commitments are explicitly incorporated into the law’s text, creating what scholars describe as a “dialogue of legal sources” where domestic and international norms interact to form a cohesive protective framework . This integration establishes that protective measures must be interpreted and applied in accordance with both Brazilian constitutional principles and international human rights standards.
The constitutional dimension of the Maria da Penha Law is equally significant. Beyond its foundation in Article 226, §8º of the Constitution, the law operationalizes multiple constitutional guarantees including the right to physical and mental integrity (Article 5º, caput), dignity of the human person (Article 1º, III), and substantive equality (Article 5º, I). This constitutional grounding means that any application or interpretation of urgent protective measures must be consistent with the broad constitutional principles that govern the entire Brazilian legal system, particularly the due process of law and the protection of fundamental rights against arbitrary state action.
1.3 The Legal Nature of Urgent Protective Measures: A Sui Generis Construction
The juridical nature of urgent protective measures has been the subject of intense doctrinal debate since the law’s enactment. Initial discussions centered on whether these measures should be classified as criminal cautelary, civil injunctive relief, or a hybrid institution. This classification is far from a mere academic exercise, as it determines fundamental aspects of their application, including the regime of nullities, procedural requirements, and remedial mechanisms available to challenge them .
Contemporary doctrine and jurisprudence have progressively recognized that urgent protective measures possess a sui generis nature that defies traditional categorization. They function as autonomous protective instruments that exist independently of any main action, whether criminal or civil. This autonomy is reflected in their immediate enforceability and satisfactory character—they are not merely preparatory or incidental to another proceeding but provide complete and immediate protection of the threatened right. This unique nature creates what has been described as a “procedural hybridity” that requires the selective application of rules from both criminal and civil procedure, guided always by the protective purpose of the law and the constitutional guarantees of all parties involved .
2 Theoretical Underpinnings of Absolute Nullity in the MPU Context
2.1 Conceptual Distinction: Absolute vs. Relative Nullity
In Brazilian procedural theory, the distinction between absolute and relative nullity serves as a cornerstone for understanding the validity of judicial acts. Absolute nullity arises from the violation of rules of public order that protect fundamental interests of the judicial system or constitutional guarantees. These nullities are insanable (cannot be cured) and can be recognized at any time, including ex officio by the judge. They represent such a fundamental defect that the act is considered void from its origin (ab initio), producing no legal effects whatsoever. In contrast, relative nullity stems from violations of rules that primarily protect private interests of the parties. These must be argued in a timely manner (under penalty of preclusion) and generally require demonstration of actual prejudice to the party invoking them.
When applied to urgent protective measures, this distinction becomes critically important. Given that MPUs involve significant restrictions on fundamental rights (liberty, property, family relations), the threshold for absolute nullity is necessarily lower than in ordinary proceedings. A measure that severely restricts a person’s freedom of movement or family relations based on a procedurally defective decision engages constitutional concerns that transcend the mere private interests of the parties, elevating potential defects to the level of absolute nullity.
2.2 The Constitutional Matrix of Nullity in Protective Measures
The constitutional foundations of nullity in the context of urgent protective measures derive primarily from three interconnected principles: due process of law, adequate legal motivation, and proportionality. Each of these constitutional requirements establishes non-derogable standards whose violation can render a protective measure absolutely null.
The due process requirement in the context of MPUs presents particular challenges given their urgent nature. While the law permits the initial granting of measures inaudita altera parte (without hearing the other party), this postponement of contradictory must be strictly justified by concrete and imminent risk to the victim. More importantly, the subsequent opportunity for defense must be meaningful and timely. A protective measure that persists for months or years without the respondent having been properly heard or without the judge considering evidence presented in defense violates the core of due process and may be subject to absolute nullity .
The motivation requirement, established in Article 93, IX of the Constitution, demands that judicial decisions clearly articulate the factual and legal grounds for the decision. For protective measures, this means the judge must specify the evidence of risk, the reasons why the specific measure granted is necessary, and the justification for any restrictions on fundamental rights. Generic or template-based decisions that merely reproduce legal language without addressing the specific circumstances of the case fail this constitutional requirement and may be considered absolutely null .
2.3 Jurisprudential Evolution: From Absolute Protection to Balanced Guarantees
The jurisprudential treatment of nullity in urgent protective measures has evolved significantly since the enactment of the Maria da Penha Law. Early decisions, influenced by the imperative of protecting women in vulnerable situations, tended to adopt a flexible approach to procedural defects, emphasizing the protective purpose over strict adherence to formal requirements. This approach, while well-intentioned, created problems of legal uncertainty and potential for arbitrary restrictions on rights.
Contemporary jurisprudence, particularly from the Superior Court of Justice (STJ), has progressively established a more balanced approach that recognizes both the urgency of protection and the need for procedural rigor. This evolution reflects an understanding that effective protection requires legally sound decisions that can withstand judicial scrutiny. The current trend emphasizes that the exceptional nature of protective measures (including their potential to restrict fundamental rights based on summary proceedings) demands heightened attention to procedural guarantees, not their relaxation.
3 Substantive Grounds for Absolute Nullity
3.1 Jurisdictional Defects: Incompetence and Lack of Jurisdiction
One of the most fundamental grounds for absolute nullity of urgent protective measures is jurisdictional defect. The Maria da Penha Law establishes specialized courts (Juizados de Violência Doméstica e Familiar contra a Mulher) with cumulative jurisdiction over both civil and criminal aspects of domestic violence cases. However, this specialized jurisdiction is rationally limited to cases that genuinely involve gender-based violence within the domestic, family, or affective relationship contexts defined in Article 5 of the Law .
When a protective measure is granted outside this specialized jurisdiction—either because the facts do not involve gender-based violence or because they occur outside the defined relational contexts—the resulting jurisdictional defect constitutes absolute incompetence. This is not merely a formal error but a substantive violation of the principle of the natural judge (juiz natural), a fundamental constitutional guarantee. The consequences of such incompetence are severe: the judicial order is considered non-existent in legal terms, and any acts based on it—including arrests for non-compliance—are equally null.
The determination of whether a case falls within the specialized jurisdiction requires careful analysis of the relational context and the gender dimension of the alleged violence. Conflicts between neighbors, purely commercial disputes, or isolated altercations without the power dynamics characteristic of gender-based violence typically fall outside the scope of the Maria da Penha Law. When judges apply protective measures automatically to any conflict involving a man and a woman, they disregard the specific rationale (ratio legis) of the law and commit a jurisdictional error that renders the measure absolutely null.
3.2 Defective Substantive Foundation: Absence of Gender Context
The validity of a protective measure depends fundamentally on its substantive foundation in the gender-based violence that the Maria da Penha Law seeks to address. Article 5 of the Law defines domestic and family violence against women as “any action or omission based on gender that causes death, injury, physical, sexual or psychological suffering and moral or patrimonial damage” . This gender-based requirement is not merely formal but substantive—it requires that the violence be rooted in the historical power asymmetries between men and women, in the social construction of gender roles, or in discrimination specifically targeting the victim because she is a woman.
When protective measures are granted based on conflicts that lack this gender dimension, they suffer from what might be termed “substantive typicity”—the procedural mechanism used (MPU under Maria da Penha) is fundamentally inappropriate for the factual situation. This defect goes to the very cause of action and renders the measure absolutely null. Increasingly, courts are recognizing that not all violence against women constitutes gender-based violence in the sense required by the Maria da Penha Law, and that improper application of the law’s mechanisms to cases lacking this essential element constitutes a juridical error of such magnitude as to invalidate the entire proceeding.
3.3 Violation of Due Process Core Guarantees
The accelerated procedure for urgent protective measures, while necessary given their protective purpose, cannot justify the complete suppression of core due process guarantees. Certain violations of these guarantees are so fundamental that they render the measure absolutely null:
| Table: Core Due Process Guarantees and Their Violations in MPU Context | Guarantee | Minimum Requirement | Violation Leading to Absolute Nullity |
|---|---|---|---|
| Right to Defense | Meaningful opportunity to present contrary evidence and arguments | Complete absence of hearing or consideration of defense evidence | |
| Proper Notification | Formal communication of the measure with clear specification of restrictions | Notification through improper channels or without clear specification of prohibited conduct | |
| Judicial Impartiality | Decision based on evidence, not prejudice or stereotypes | Decision based on gender stereotypes without evidentiary support | |
| Temporal Limitation | Review of necessity at reasonable intervals | Indefinite maintenance without periodic reassessment of risk |
The complete denial of the right to defense, while sometimes permissible initially due to urgency, becomes an absolute nullity if not remedied within a reasonable time. Protective measures that remain in effect for extended periods without the respondent having any opportunity to challenge them transform from protective instruments into punitive sanctions imposed without due process. Similarly, defective notification that fails to clearly specify the restricted conduct prevents the respondent from knowing precisely what is prohibited, making compliance impossible and any punishment for non-compliance fundamentally unjust.
4 Procedural Grounds and Defective Judicial Decisions
4.1 Deficiencies in Judicial Motivation and Reasoning
The constitutional requirement of adequate motivation (Article 93, IX) assumes particular importance in the context of urgent protective measures. Given that these measures often involve significant restrictions on fundamental rights based on summary proceedings, the judicial decision must provide a transparent and reasoned justification that demonstrates: (1) the existence of concrete risk to the victim; (2) the appropriateness of the specific measure granted; and (3) the proportionality between the restriction imposed and the risk sought to be avoided.
Deficient motivation in MPU decisions can take several forms, each potentially leading to absolute nullity:
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Template or Formulary Decisions: Judicial decisions that merely reproduce standard language without addressing the specific circumstances of the case fail the constitutional requirement of individualization. The jurisprudence is clear that judges cannot rely on “boilerplate” language but must engage with the particular facts and evidence presented .
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Chronologically Disconnected Facts: Protective measures based on stale allegations without current evidence of ongoing risk lack the temporal urgency required for their imposition. The periculum in mora (danger in delay) that justifies urgent measures must be present or imminent, not remote or speculative based solely on past events.
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Absence of Proportionality Analysis: Decisions that impose the most restrictive measures (such as removal from the home) without considering or rejecting less restrictive alternatives fail to meet the constitutional requirement of proportionality. The judge must explicitly consider whether less intrusive measures would suffice to protect the victim before imposing more severe restrictions.
4.2 Violation of Contradictory and Procedural Participation Rights
While the initial granting of urgent protective measures often occurs without prior hearing of the respondent (inaudita altera parte), this procedural exception is constitutionally permissible only under strict conditions and with subsequent opportunity for challenge. Violations of this procedural framework can render the measure absolutely null:
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Complete Absence of Subsequent Contradictory: If, after the initial ex parte granting, the respondent is never given a meaningful opportunity to present a defense, the measure becomes a permanent restriction imposed without due process. The jurisprudence establishes that the postponement of contradictory must be just that—a postponement, not an elimination.
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Disregard of Defense Evidence: When the respondent presents relevant evidence challenging the alleged risk or the necessity of the specific measures, the judge must engage substantively with this evidence. A decision that simply ignores contrary evidence without reasoned consideration violates both the right to defense and the duty of adequate motivation.
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Failure to Review Based on Changed Circumstances: The dynamic nature of risk in domestic violence situations requires that protective measures be subject to periodic review. When circumstances change significantly—such as when the parties reconcile, when the respondent completes a rehabilitation program, or when considerable time has passed without incident—the judge has a duty to reassess the continuing necessity of the measures. Failure to conduct such reassessment when properly requested can render the continued enforcement of the measure arbitrary and potentially null.
4.3 Improper Use of Protective Measures: Fraud and Abuse of Process
A growing concern in the application of the Maria da Penha Law is the strategic use of protective measures for purposes other than protection from gender-based violence. This occurs when parties seek MPUs not because of genuine risk but to gain tactical advantages in parallel proceedings such as divorce, child custody, or property division. When granted under these circumstances, protective measures suffer from fraud on the court or abuse of process, defects that can render them absolutely null.
The identification of such improper use requires careful judicial analysis of the timing of the request, its relationship to other proceedings, the consistency of the allegations, and the overall context of the parties’ relationship. While courts must be careful not to engage in undue skepticism of victims’ allegations, they also have a duty to prevent the instrumentalization of protective mechanisms for collateral purposes. When evidence clearly demonstrates that a protective measure was sought primarily to gain advantage in unrelated proceedings rather than to address genuine risk of gender-based violence, the measure lacks legitimate cause and should be annulled ab initio.
This concern highlights the importance of what the National Council of Justice has termed “gender perspective judging”—an approach that recognizes the power dynamics in gender-based violence while also maintaining critical scrutiny of allegations to prevent abuse of the protective system. Proper application of this perspective requires judges to look beyond isolated allegations to the broader pattern of the relationship while remaining alert to situations where the law’s mechanisms are being misused.
5 Consequences and Control Mechanisms
5.1 Retroactive Effects and Interconnected Proceedings
The declaration of absolute nullity of an urgent protective measure produces retroactive effects (ex tunc), meaning the measure is considered never to have validly existed. This has profound implications for interconnected proceedings and legal consequences that flowed from the now-null measure:
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Criminal Liability for Non-Compliance: Article 24-A of the Maria da Penha Law criminalizes non-compliance with urgent protective measures. However, this offense requires as a constitutive element the existence of a valid judicial order. When the underlying protective measure is declared absolutely null, the legal foundation for the criminal charge disappears. The conduct may no longer be considered criminal, as one cannot be punished for disobeying an order that was legally non-existent from the beginning.
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Derivative Evidentiary Measures: Evidence obtained through measures derived from the null protective measure—such as weapons seized during the enforcement of a removal order, or statements obtained during related police operations—may be subject to exclusion under the “fruit of the poisonous tree” doctrine. While Brazilian law applies this doctrine more flexibly than some other jurisdictions, courts generally exclude evidence obtained through grave procedural violations that affect constitutional rights.
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Parallel Family Proceedings: Decisions in family law cases (divorce, custody, visitation) that were influenced by the existence of a protective measure may need to be revisited once the measure is nullified. For example, custody arrangements based on the assumption that one parent posed a risk to the children may require reconsideration if that assumption rested primarily on a now-null protective measure.
5.2 Procedural Mechanisms for Challenging MPUs
Several procedural mechanisms are available to challenge urgent protective measures on grounds of absolute nullity, each with distinct characteristics and appropriate applications:
| Table: Procedural Mechanisms for Challenging MPUs on Nullity Grounds | Mechanism | Legal Basis | Appropriate Use Cases | Advantages |
|---|---|---|---|---|
| Habeas Corpus | Constitution, Article 5º, LXVIII | When MPU involves unlawful restriction of freedom of movement | Speed, direct constitutional protection | |
| Appeal/Agravo | CPC/CPP provisions | To challenge decision within ordinary proceedings | Comprehensive review of factual and legal issues | |
| Motion for Reconsideration | Inherent judicial power | When new evidence or legal arguments emerge | Simplicity, direct approach to original judge | |
| Incident of Nullity | Procedural codes | When nullity is discovered during proceedings | Focused examination of specific defects |
Habeas Corpus has emerged as a particularly effective mechanism due to its summary nature and focus on freedom of movement restrictions. Even when a protective measure does not involve physical detention, if it substantially restricts a person’s ability to move freely (for example, through exclusion zones or prohibitions on approaching certain locations), it may properly be challenged through this constitutional remedy. The jurisprudence has recognized that the right to come and go (direito de ir e vir) protected by habeas corpus encompasses more than just physical confinement—it includes freedom from unreasonable restrictions on movement.
For less urgent challenges or those involving complex factual disputes, ordinary appeals or motions for reconsideration before the original judge may be more appropriate. These allow for more thorough development of arguments and evidence, particularly when challenging the factual basis for the protective measure. The choice of mechanism depends on factors including the nature of the defect, the urgency of relief needed, and the procedural stage of the case.
5.3 The Role of the Public Ministry in Preventing and Remedying Nullities
The Public Ministry (Ministério Público) plays a crucial dual role in relation to urgent protective measures: as promoter of protective measures when necessary for victim safety, and as guardian of legality ensuring that measures are properly granted and implemented. This dual role creates the potential for institutional tension but also establishes an important internal control mechanism within the protective system.
As custos legis (guardian of the law), the Public Ministry has the duty to identify and address nullities in protective measures, even when this means challenging measures it initially supported or that were granted at its request. This duty reflects the understanding that illegal or improper protective measures ultimately undermine the system’s credibility and effectiveness. A measure granted through procedural defects is vulnerable to challenge and annulment, potentially leaving the victim without protection and eroding confidence in the legal system.
The Public Ministry’s intervention is particularly important in cases involving complex legal issues or potential conflicts between protective measures and other fundamental rights. For example, when a protective measure affects parent-child relationships, the Public Ministry must ensure that the rights of children are properly considered alongside the need to protect the mother. Similarly, when measures involve property rights or professional activities, the Public Ministry should help balance the protective purpose with legitimate interests of the respondent.
This supervisory role extends to monitoring compliance with procedural requirements even in urgent situations. While urgency may justify certain procedural adaptations, it cannot justify the complete disregard of fundamental guarantees. The Public Ministry should therefore advocate for procedures that balance speed of protection with procedural fairness, recognizing that sustainable protection requires both elements.
6 Conclusion: Towards a Balanced Paradigm of Protection and Legality
The jurisprudence on absolute nullity of urgent protective measures reflects the maturation of Brazilian domestic violence law from its initial emphasis on maximal protection toward a more balanced paradigm that recognizes both the imperative of protecting women from violence and the necessity of respecting fundamental procedural guarantees. This evolution does not represent a retreat from the protective purpose of the Maria da Penha Law but rather a sophisticated understanding that effective, sustainable protection requires legally sound procedures and decisions.
Future developments in this area will likely focus on several key areas: procedural refinements that balance urgency with fairness, improved judicial training on gender perspective judging, technological tools for risk assessment and monitoring, and greater coordination between protective measures and related legal proceedings. The challenge for the legal system will be to maintain the protective effectiveness that has been the hallmark of the Maria da Penha Law while ensuring that its mechanisms are applied with the procedural rigor required in a democratic state governed by the rule of law.
The absolute nullity of protective measures, rather than representing a threat to women’s protection, serves as an essential corrective mechanism that maintains the integrity of the protective system. By annulling measures granted through grave procedural defects, the courts affirm that in a constitutional democracy, even noble ends (protecting women from violence) cannot justify illegitimate means (violating fundamental procedural rights). This principled approach ultimately strengthens the Maria da Penha Law by ensuring its application remains within the bounds of legality, thereby preserving its moral authority and practical effectiveness.