Contraditório participativo institucional no processo coletivo: a atuação do amicus curiae e a realização de audiências públicas

Abstract

Based on the current leading role of the judicial function and the growing tendency of judicial decisions affect people or groups who do not participate directly in the judicial process, this research investigated the Institutional Participatory Contradictory in the Class Actions. The questioning that direct this study considered how the participation of the amicus curiae and the holding of public hearings in the Class Actions concretize an institutional participatory contradictory; or if the aforementioned instruments reinforce the idea of an contraditory only as a right of defense, with its exercise reduced to procedural parts. It stood out, therefore, the participation of the amicus curiae and the holding of public hearings as instruments capable of ensure social legitimacy of judicial decisions, because they potentialize ample participation and democratization of the decision-making process in a democratic jurisdiction, expanding and pluralizing conducts that concretize the principle of contradictory in Class Actions. Bibliographic research and data collection were carried out at the Court of Justice of Bahia to identify the current stage of evolution of collective protection of rights, and of understanding and exercise of the principle of contradictory in the judicial process. The analysis of the data allowed, among others, the conclusion that, although there is a legislative concern with the disclosure of the existence of Class Actions, as well as with the forms of participation in this procedure, the participation rate of amicus curiae and the holding of public hearings are still low in this Court. In addition, beside to legislative changes, it was observed that there is also a need for a change in the collective conscience, both from the perspective of the operators of law and of the jurisdictional ones, in order to reach an institutional participatory contradictory in Class Actions, through the participation of groups involved.