O 'Caso Samarco' e a participação na tutela coletiva : não-dominação, esfera pública e poder judiciário

• Autor(a) principal: Lemos, Arthur Lopes
• Data de Publicação: 2018
• Tipo de documento: Dissertação
• Idioma: por
• Título da fonte: Repositório Institucional da Universidade Federal do Espírito Santo (riUfes)
• Texto Completo: http://repositorio.ufes.br/handle/10/8847
• topic: Republicanism; Non-domination; Public sphere; Participation; Collective judicial protection; Tutela coletiva; Não-dominação; Esfera pública; Participação; Direito Processual Civil; SAMARCO Mineração, S.A.; Brasil. [Código de Processo Civil (2015)]; Republicanismo; Poder judiciário; Direito processual; 340

Philip Pettit’s republicanism sustains the non-domination as main republic ideal, serving as criteria to concept freedom and justice. In a way to guarantee this ideal, it suggests a model of democracy whose participation occurs in a form of contestation, reason why must be opening to public sphere the access of institutions that allows the voice of contestation against acts of domination. Different from Hannah Arendt’s sustention, freedom is not obtained under a constant participation at public sphere, on creation of political decisions, but on a negative participation, of opposition to domination; and different from Jürgen Habermas’ concept, it is not the creation of consensus at public sphere that ensures freedom, but contestability of State Acts by this same public sphere. For this, it is necessary the existence of Republican Institutions, which allows at public sphere the canalization of voice and to contest the acts of domination. By this way, it is defended that Judiciary has potential to prosecute the function of Republican Institution and Democratic Arena, allowing to the public sphere to exercise the contestation, always in a dialogical, deliberative and rational way. This potential accrues from doctrine of judicial review, associated to the culture and ideology of evaluative-formalism – that sees on the process an instrument of participation on power exercise (process democratization), based on a perspective potentialized of contradictory – so as fundamental rights to process and to justice access. From conjugation of these elements, here it is defended the process as a democratic instrument which allow the maximum participation of public sphere as a way of exercise from voice contest, whose target is avoiding domination. However, the process, by itself, can not realize the domination, what requires the rereading of some of its principles. Using this premise, there were analyzed three aspects of due collective legal process on “Case Samarco”: a) adequate participation and representation, from nonapproval of TTAC (Termo de Transação e Ajustamento de Conduta – Transaction Term and Conduct Adjustment) on preliminary ruling rendered at Superior Tribunal de Justiça (STJ) at Reclamação n° 31.935/MG; b) procedural participation in precedents shaping, related to ingress denial of some entities as amici curiae on Incident of Repetitive Demands Resolution nº 040/2016 of Colégio Recursal dos Juizados Especiais do Espírito Santo; c) the principle of adequate competence, from the Conflito de Competência nº 144.922 MG / STJ.