O CNJ entre funções administrativas e legislativas em matéria penal : evidências de casos limítrofes

Abstract

This monograph addresses the limits of the actions of the Conselho Nacional de Justiça (CNJ) [National Justice Council], specifically regarding its normative power. This Council is an administrative body within the Judiciary, responsible for overseeing the administrative, financial, and disciplinary aspects of the judicial system. The aim of this work is to discuss judicial activism by examining borderline cases in which the CNJ intervened in matters related to criminal law - particularly in formal aspects - in order to assess whether the guidelines issued by the CNJ align with its institutional attributions or whether they constitute an overreach of its functions, amounting to authentic legislative activity in clear violation of the principle of separation of powers and the principle of strict legality, as upheld by the theories of criminal law and criminal procedure and established in the Federal Constitution. Using the hypotheticaldeductive method and conducting theoretical and bibliographic research, this study intends to demonstrate how the CNJ’s activist stance has manifested and to evaluate the implications of introducing norms into the Brazilian legal system through means that deviate from the traditional legislative process. To that end, three resolutions issued by the CNJ were analyzed, considering their contexts and repercussions: Resolution nº. 213, concerning custody hearings; Resolution nº. 391, which addresses sentence remission through reading; and Resolution nº. 487, which provides for the closure of custody hospitals. This analysis made it possible to conclude that, even if normative power is deemed inherent to the institutional role of the Council, its exercise must remain within the boundaries of legality and constitutionality. This is essential to prevent actions that could compromise the balance among the branches of government, undermine the legal-constitutional framework, and - more seriously - corrupt the foundations of the country’s Democratic Rule of Law.