Da aplicabilidade do Incidente de Assunção de Competência ao Processo Penal

Abstract

The Incident of Assumption of Competence (IAC) was established by the Brazilian Civil Procedure Code of 2015 as a means to uphold the principles of legal certainty, equality, and the reasonable duration of proceedings. However, Brazilian Criminal Procedural Law lacks a similar mechanism for the creation of precedents and the standardization of jurisprudence, thereby justifying the present research, which addresses the issue of the applicability of the Incident of Assumption of Competence (IAC) to Criminal Procedure. Consequently, the general objective of this study is to analyze and investigate its applicability within the realm of criminal procedural law. To address the research problem, the specific objective of the first chapter is to contextualize the IAC within the CPC and other procedural microsystems, establishing the premise that this instrument serves to enforce Constitutional principles. This is followed by the allocation of the IAC within the microsystems of collective protection and precedents, along with a brief economic analysis of precedents. Accordingly, a more general argument is initially made for the applicability of institutes from the Civil Procedure Code to other branches of law, emphasizing the General Theory of Procedure and the principle of legal certainty, which will be revisited later. The chapter concludes with an analysis of the normative guidelines from the National Council of Justice related to the precedent system, where the IAC – the subject of this research – is situated. The second chapter subsequently analyzes the precedents of the Superior Court of Justice in criminal matters, particularly in Repetitive Special Appeals, from the enactment of the CPC/2015 until April 2022, to identify criminal law issues with consolidated understandings that, consequently, preclude the filing of the IAC. Continuing with the specific objectives, chapter three critically and descriptively addresses the IAC in particular, detailing the idiosyncrasies of its procedure. It also examines the application of the IAC in Special Courts and the rules for its initiation and admissibility before Courts and Tribunals up to April 2022, as well as the effects of its admission and the withdrawal of the leading case. The study also compares and distinguishes the IAC from its predecessor, the Incident of Uniformization of Jurisprudence, and from Divergence Embargoes. The chapter dedicated to the IAC concludes by revisiting the discussion with a specific analysis of its applicability in Criminal Procedure. The next objective is to verify the practical adoption and acceptance of the IAC by Courts in criminal matters, using a methodology of statistical procedures and a quantitative and qualitative survey based on data from State Courts and Tribunals up to April 2022, organized by geographic region. Finally, considerations on the collected data are drawn, comparing them with the premises developed in the previous chapters. The research is conducted using a deductive approach methodology, supported by bibliographic, normative, and documentary review, and data from the Court systems.