Incidente de resolução de demandas repetitivas no processo penal: uma perspectiva de racionalidade para as decisões judiciais na seara criminal

Abstract

The Brazilian legal system, in the wake of neoconstitutionalism, continually evolves towards access to the courts. The 2015 Civil Procedure Code, also known as the “FUX Code”, expressly adopted the Theory of Constitutional Procedural Law and contains several provisions that portray its positive instrumentality, including those that establish mechanisms for resolving multi-individual conflicts. Access to the courts was given new meaning by a multi-door system and tools to enhance effectiveness. Scholars point to the existence of a true microsystem aimed at the formation of central legal theories applicable to serial actions and measures designed to achieve, all at once, legal certainty, equality and the reasonable duration of a lawsuit, fundamental guarantees upheld by the current Civil Procedure Code. In this scenario, the Incident for Resolution of Recurrent Claims (Incidente de Resolução de Demandas Repetitivas – “IRDR”) stands out, a mechanism with promising potential to orchestrate all of the aforementioned fundamental guarantees in search of effectiveness. Although the microsystem is not provided for in the Criminal Procedure Code, it is clear that the Civil Procedure Code can be applied in a secondary and supplementary way, based on the General Theory of Court Procedure (Teoria Geral do Processo) and through a dialogue of legal sources. Having established these premises, this study has as its central purpose: i) research on the application of IRDR in Criminal Procedure by national courts; ii) the proposition of adjustments to the IRDR for its application to Criminal Procedure; iii) analysis of the effects and consequences of binding decisions in the Criminal Procedure; iv) the compatibility of the IRDR mechanism with the fundamental rights and guarantees related to Criminal Law and Criminal Procedural Law.