O IRDR nº 40/2016, do Colegiado Recursal do E. Santo (desastre do Rio Doce) e o devido processo legal

Abstract

The dissertation had as object the case study embodied in the Incident of Resolution of Repetitive Demands nº 40/2016, triggered in the scope of the Special Civil Courts of Espírito Santo, known nationally as the “Case Samarco”, called in the work as “Disaster of Rio Doce". This IRDR was raised by letter by the Judges of the Appeals Panel of the Northern Region, in view of the large number of judicial demands, with antagonistic results, proposed against Samarco Mineração S/A., in which civil reparation was sought for the damages resulting from the failure in the provision of services that resulted in the rupture on November 5, 2015 of the Mariana/MG dam, notably one of the biggest environmental disasters in Brazil. The 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 was critically analyzed if IRDR nº. 40/2016, as processed and judged, gave the litigation the treatment expected, taking into account the sine qua non condition for exercising constitutional jurisdiction. Under such an approach, the process is not merely an instrument of jurisdiction, but a guarantee of it. Outside due process, there is no jurisdictional action that can be called constitutional. CPC/2015 sought as much as possible to eliminate the dispersion of excess jurisprudence (lottery jurisprudence), determining that the courts should not only standardize their jurisprudence, but keep it stable, complete and consistent, as well as bringing the possibility that some precedents may have binding effectiveness. In this context, it is that the IRDR, an institute introduced in the legal system by CPC / 2015, appears as a collective protection technique, an integral part of the repetitive case judgment model, alongside repetitive appeals. After conducting the study of the incident from its birth to its final decision, which took place on June 12, 2019, the purpose of the investigation was to answer whether IRDR nº 40/2016 was faithful to the due legal process; the purpose of bringing security, equality and efficiency to the handling of the dispute has been achieved, not leaving aside the criticism that deserves the incident. To achieve these objectives, the methodology of bibliographic research, literature review and empirical research (case study) was used, which led the researcher to study the eight (8) volumes of the incident in loco. The research instigates the criticism of the operators of the law because it allows, in view of the potential for binding effectiveness of the legal thesis to be formed by the IRDR, a deep reflection on the principles that are at stake, especially from the perspective of constitutional jurisdiction, investigating about the risk posed by the 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 stage of mere parameterization of legal “solution”, which did not deliver a fair, adequate and effective tutelage