The expression inaudita altera parte, of Latin origin, designates the power of a judicial body to issue a decision without prior hearing of the opposing party. Inserted within the scope of Civil Procedural and Constitutional Law, this institute embodies a technique of urgent relief aimed at ensuring the effectiveness of judicial provision in the face of risks of loss of rights or ineffectiveness of the final ruling.
Concept and Foundation
The maxim inaudita altera parte translates the legal authorization for procedural acts to be performed without immediate adversarial proceedings. Legally, this is not a suppression of the adversarial principle, but rather its deferral. The legal nature of this institute is that of an exceptional measure, restricted to cases where prior citation or notification would frustrate the utility of the judicial provision, proving incompatible with the protection of fundamental rights or legally protected interests that require celerity.
Historical Origin and Evolution
The root of the institute dates back to Roman Law, coexisting with the principle of audi alteram partem. While the Roman system consolidated the need for bilateral hearings, the development of summary and precautionary procedures, in the tradition of civil law and canon law, cemented the need for urgent measures (periculum in mora). In the Brazilian legal system, legislative evolution, passing through the 1939 Code of Civil Procedure, the 1973 CPC, and finally the 2015 CPC, refined the contours of provisional relief, elevating the mitigation of the adversarial principle to the category of a technical procedural rule, always under the scrutiny of proportionality.
Legal and Constitutional Provision
The application of inaudita altera parte finds immediate support in the 2015 Code of Civil Procedure, specifically in Art. 9, sole paragraph, item I, which creates an exception to the adversarial rule in situations of urgent provisional relief. Furthermore, Art. 300 of the same statute establishes the cumulative requirements for granting urgent relief — probability of the right and danger of damage or risk to the useful result of the process —, an indispensable foundation for waiving the prior hearing. Constitutionally, the adversarial principle (Art. 5, LV, CF/88) does not have an absolute character, being mitigated for the sake of the effectiveness of jurisdiction (Art. 5, XXXV, CF/88).
Jurisprudential Understanding
The jurisprudence of the Superior Courts (STF and STJ) is consolidated in the sense that an inaudita altera parte decision is legitimate when there is a risk of the measure being ineffective. The Superior Court of Justice, in several rulings (e.g., REsp 1,854,887/PR), reaffirms that deferred adversarial proceedings are an appropriate instrument to preserve due process of law in its substantive sense. In the scope of Labor Law, the TST applies this understanding by analogy, especially in urgent relief aimed at the reinstatement of employees or the cessation of illicit acts in strikes, based on the general power of caution.
Related Principles and Doctrinal Divergences
The institute orbits around the principle of procedural effectiveness and cooperation. The doctrinal divergence lies in the extent of the application of deferred adversarial proceedings. Part of contemporary procedural doctrine, influenced by neo-proceduralism, warns of the risk of trivializing the institute, arguing that, whenever possible, minimal notification should be carried out, even if for subsequent adversarial proceedings. The majority view, however, maintains that the effectiveness of precautionary relief depends, by essence, on surprise (the element of surprise), under penalty of emptying the litigious object.
Contemporary Relevance
In the current scenario, marked by the acceleration of communications and the complexity of disputes, the inaudita altera parte decision is indispensable in urgent relief involving digital rights, freezing of financial assets, and data protection. Modern legal practice requires that the magistrate, when using this instrument, exhaustively justify its exceptionality, under penalty of nullity due to restriction of defense, ensuring that the adversarial principle, even if deferred, is exercised fully after the execution of the measure.
Legal and Jurisprudential References
- Constitution of the Federative Republic of Brazil of 1988, Art. 5, items XXXV and LV.
- Code of Civil Procedure (Law No. 13,105/2015), Arts. 9, 294, 300, and 301.
- Superior Court of Justice (STJ). Special Appeal No. 1,854,887/PR. Rapporteur: Justice Nancy Andrighi.
- Supreme Federal Court (STF). Newsletter No. 974. Theme: Deferred adversarial proceedings and due process of law.
- Doctrine: Marinoni, L. G., Arenhart, S. C., & Mitidiero, D. Course on Civil Procedure: Protection of Rights Through Common Procedure.
