Name: TATIANA MASCARENHAS KARNINKE
Type: MSc dissertation
Publication date: 08/07/2020
Examining board:
Name |
Role |
|---|---|
| AUGUSTO PASSAMANI BUFULIN | Co advisor * |
| CLÁUDIO IANNOTTI DA ROCHA | Internal Examiner * |
Summary: The dissertation had as its object the case study embodied in IRDR nº
40/2016, triggered within the scope of the Special Civil Courts of Espirito
Santo, known as the Samarco Case, here called Rio Doce Disaster.
This IRDR was raised by letter by the Judges of the Northern Region Appeals
Panel, in view of the large number of lawsuits filed against Samarco
Mineração S/A, with judgments that are diametrically antagonistic. In these
atomized actions, civil reparation was sought for the damages caused by the
failure to provide services, which resulted in the rupture of the tailings
dam in the city of Mariana/MG, which occurred on November 5, 2015, known as one of the biggest environmental disasters in Brazil. This object is closely
linked to the PPGDIR concentration area, Justice, Process and
Constitution and in particular to the line System of Justice,
Constitutionality and Protection of Individual and Collective Rights,
since it critically analyzed whether the IRDR nº 40/2016 obeyed due legal
process, a sine qua non condition for the exercise of constitutional
jurisdiction: the Constitution, in addition to bringing in itself the expression of political and social values, also acts in its own defense. Under this perspective, the process is not a mere instrument of jurisdiction, but a guarantee of it. Outside due process, there is no jurisdictional action that can be called constitutional. The CPC/2015 sought as much as possible to eliminate the excessive dispersion of jurisprudence (lottery jurisprudence), determining that the courts must not only standardize their jurisprudence, but keep it stable, complete and consistent, as well as allowing the effectiveness of precedents to be persuasive or binding. In this context, it is that IRDR, an institute
introduced in the legal system by CPC/2015, emerges as a collective tutelage
technique, an integral part alongside repetitive appeals, in the repetitive
case trial model. Having carried out the study of the incident from its birth
to its unappealable decision, which took place on June 12, 2019, the
objective was to answer whether IRDR nº 40/2016 was faithful to the due
legal process? Has it achieved the purpose of bringing security, equality and
efficiency to the handling of litigation? Anyway, what criticism deserves the
incident? In order to achieve these objectives, it used the methodology of
bibliographic research, literature review and empirical research (case
study), since having judged the incident, it strove to unarchive the case
files and study in locu of the whole process. The research instigates the
criticism of the operators of the law regarding their compatibility under the
perspective of constitutional jurisdiction, and a deep and serious reflection
should be made as to the principles that are at stake, in view of the binding
effectiveness of the IRDR, investigating the risk raised decision-making
system, weighing them, in the specific case. It was concluded that IRDR nº
40/2016, suffers from serious unconstitutionality for not having observed the
due constitutional process, serving as a parameter setting parameter for
legal solution, favoring the usual litigant.
Keywords: Civil Procedural Law. Due Legal Process. Repetitive Demand Resolution Incident. Rio Doce disaster.
