One of the biggest innovations brought about by Law 13.105/2015 (Code of Civil Procedure) was the Incident for Resolution of Repetitive Demands, known by the acronym IRDR.
The incident presents itself as a method for resolving multiple demands, which will serve as a paradigm for other processes that arise with identical subject matter, or for those that have been suspended since the establishment of the IRDR (Incident Resolution Demand).
Thus, the IRDR aims to minimize the effects resulting from the massification of cases in progress in the Judiciary, with a view to enabling legal certainty for those under its jurisdiction, with swift and equal treatment.
Therefore, this article aims to explain what IRDR (Incident for Resolution of Repetitive Demands) actually is, its applicability, and its effects.
What is IRDR?
Initially, it should be noted that the IRDR (Incident for Resolution of Repetitive Demands) was one of the innovations brought about by the enactment of Law 13.105/2015 (Code of Civil Procedure).
This procedure is addressed in articles 976 to 987 of the Code of Civil Procedure, with the main objective of unifying decisions for cases that contain the same legal issue.
Article 927, item III, of the Code of Civil Procedure assigns to judges and courts the duty to observe the judgments rendered in Incidents of Resolution of Repetitive Demands, thus enshrining the collegiate decision rendered in the IRDR as a decisional standard, especially with a view to relieving the burden on the Judiciary.
Furthermore, it should be noted that the IRDR (Incident for Resolution of Repetitive Demands) is not considered an appeal under the Code of Civil Procedure, but rather a procedural incident.
When will it be applicable?
Article 976 of the Code of Civil Procedure establishes that the Incident for Resolution of Repetitive Demands is applicable when, simultaneously, there is:
I – Effective repetition of processes that contain controversy over the same legal issue only; and
II – Risk of violating equality and legal certainty.
Thus, it is understood that the list in article 976 is cumulative, not alternative, therefore requiring that the hypotheses be simultaneous.
It should also be noted that the request to initiate the IRDR (Incident of Resolution of Repetitive Demands) may be made by the judge or rapporteur of the case (by means of an official letter), by the parties (by means of a petition), by the Public Prosecutor's Office or the Public Defender's Office (also by means of a petition), and must be addressed to the president of the respective Court, pursuant to article 977 of the Code of Civil Procedure.
It is worth emphasizing that the petition requesting the initiation of the IRDR (Incident of Resolution of Repetitive Demands) resembles an initial petition, which must be addressed to the President of the Court, mention the names of the parties, and be based on legal grounds, fulfilling the requirements of Article 976 of the Code of Civil Procedure.
Furthermore, it must also be accompanied by the documents necessary to demonstrate that the prerequisites for initiating the incident have been met.
Furthermore, there is no exhaustive list of matters that can lead to the initiation of an IRDR (Incident for Resolution of Repetitive Demands), therefore any interpretation that restricts its applicability is inadmissible.
Regarding the requirements for initiating the incident, Teresa Arruda Alvim Wambier teaches as follows:
"Therefore, questions of law, quaestio juris, are predominantly questions of law. These are those in which there is no discussion about the facts because, for example, they are verifiable through documentation. Or, they are situations in which the facts are already proven by various types of evidence and, since there is no doubt about what happened and how it happened, only its legal classification is discussed."
The new law requires that there be an actual repetition of processes and not merely the potential for processes to multiply. It seems, however, that the objectives of the institution would be entirely frustrated if, for the initiation of the incident, it were required that chaos had already been established in the first-instance jurisprudence, with thousands of judgments resolving the same legal issue in different ways. No.
If the law requires that there already be "repeated" lawsuits underway, it is reasonable to understand that two or three dozen are sufficient, anticipating the inevitability of these actions multiplying and becoming much larger.
Therefore, it can be concluded that the IRDR (Incident for Resolution of Repetitive Demands) is configured as an incidental procedure with total autonomy, detached from the original process, and thus possessing its own instrumentality.
How does IRDR work?
Ab initio, after the IRDR is established, pursuant to article 313, item IV, of the Code of Civil Procedure, proceedings that are being processed within the scope of the Court's jurisdiction, provided that they deal with the same repetitive issue, must be suspended for up to 1 (one) year, as determined by the Rapporteur.
However, in the view of legal scholar Daniel Amorim Assumpção Neves, "the process in which it was initiated will be suspended, but in reality what is suspended is the main procedure of that process, because since the incident is part of it, the process will partially continue its course, through the procedural incident."
However, if the IRDR is not judged within 01 (one) year, it will be closed, and the related cases will return to normal processing, unless the rapporteur issues a reasoned decision to the contrary, in accordance with the sole paragraph of article 980 of the Code of Civil Procedure.
Furthermore, the Rapporteur may also request information from the Courts where the proceedings concerning the subject matter of the incident are being processed, as well as summon the Public Prosecutor's Office to issue its opinion within 15 (fifteen) days, in accordance with Article 982 of the Code of Civil Procedure.
During the proceedings, the Rapporteur will hear the parties to the original case, as well as the Public Prosecutor's Office and other interested parties, and may grant the participation of amicus curiae, as well as schedule a hearing to request information, pursuant to Article 893 of the Code of Civil Procedure.
After the investigations are concluded, the Rapporteur will set a date for the judgment of the IRDR (Incident for Resolution of Repetitive Demands), at which time the parties to the original case, as well as the Public Prosecutor's Office and other interested parties, will be given the opportunity to present oral arguments.
It should be emphasized that the initiation and judgment of the IRDR (Incident for Resolution of Repetitive Demands) must have wide publicity, especially in the Official Gazettes of Justice.
Upon completion of the judgment, the established legal precedent shall be applied to all individual or collective proceedings that address the issue raised in the IRDR (Incident of Resolution of Repetitive Demands) within the jurisdiction of the respective court, including special courts, pursuant to Article 985 of the Code of Civil Procedure.
In the event of non-compliance with the established legal precedent, the parties may file a complaint with the competent Court, pursuant to § 1 of Article 985 of the Code of Civil Procedure, as is the case in the event of non-compliance with a binding precedent, pursuant to § 3 of Article 103-A of the Brazilian Federal Constitution.
An Extraordinary or Special Appeal may be filed against the decision on the merits of the IRDR (Incident for Resolution of Repetitive Demands), in accordance with the provisions of articles 102, item III, or 105, item III, both of the Brazilian Federal Constitution.
Appeals may be filed by the parties, the Public Prosecutor's Office, an interested third party, or even an amicus curiae, and will have suspensive effect, although the general repercussion of the constitutional issue eventually discussed will be presumed.
However, it is entirely possible to review the legal thesis established in the IRDR (Incident for Resolution of Repetitive Demands), which may occur before the same Court, after a request from the legitimate parties (judge, parties, Public Prosecutor's Office or Public Defender's Office) under the terms of article 977 of the Code of Civil Procedure.
Conclusion
It can be concluded that the Code of Civil Procedure brought numerous procedural innovations, above all, greater binding force to the standardization of case law.
For repetitive claims, the Code of Civil Procedure innovated with the advent of the IRDR (Incident for Resolution of Repetitive Claims) in the face of multiple pending cases in a Court that discuss the same legal issue, with a view to the unified judgment of these claims. In this sense, the Statement of Reasons for the New Code of Civil Procedure stated:
"Providing better legislative conditions for operationalizing ways to standardize the understanding of legal theses among Brazilian courts is to realize, in the life of Brazilian society, the constitutional principle of equality."
In this way, the IRDR (Incident of Resolution of Repetitive Demands) became a procedural mechanism so that the decision rendered in this incident emanates binding force to actions that deal with the same cause, provided that they are solely of a legal nature.
Therefore, any decision rendered contrary to the provisions of the IRDR will be subject to reformulation through a claim (§ 1 of article 985 of the Code of Civil Procedure), based on the innovative procedural system, which has become more comprehensive with the procedural tools introduced by Law 13.105/2015.
It is also worth highlighting that the Judiciary has been focused on resolving cases more quickly, providing equal treatment for the parties, and enabling the use of precedents for a more optimized development. In other words, there is a constant improvement in the delivery of justice.
Incidents of Resolution of Repetitive Demands, Summary Statements, as well as judgments on Extraordinary and Special Appeals, contribute efficiently and systematically to maintaining coherent and consistent decisions, necessary for the development of an excellent Judiciary.
Therefore, it is evident that decisions that ensure the proper development of the law are of interest not only to the parties involved in the respective legal actions, but to society as a whole, given that they shape a more expeditious and effective judiciary, with a view to standardizing jurisprudence, prioritizing legal certainty.
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References
BRAZIL, Law 13.105 of March 16, 2015. Establishes the Code of Civil Procedure.
NEVES, Daniel Amorim Assumpção. Manual of procedural law. Salvador: JusPodivm, 2016, p. 567.
WAMBIER, Teresa Arruda Alvim; CONCEIÇÃO, Maria Lucia Lins; RIBEIRO; Leonardo Ferres da Silva; and MELLO, Rogério Licastro Torres de. First Comments on the New Code of Civil Procedure. São Paulo: RT, 2016. p. 1552.