The new Code of Civil Procedure (CPC) brought in several innovations aimed at ensuring greater effectiveness and speed in proceedings. Among them, article 139, item IV, of the CPC confers on the magistrate the power to "determine all inducive, coercive, mandamus, or subrogatory measures necessary to ensure compliance with a judicial order, including in actions that have as their subject matter a money payment", thus authorizing the application of atypical measures to ensure fulfillment of obligations.
One of the main problems in the Brazilian Judiciary is the lack of effectiveness in executions, which often drag on for years, especially because of the impossibility of locating assets of debtors sufficient to satisfy the debt, even after numerous diligence measures. In this context, many judges have ordered, on the basis of article 139, item IV, of the CPC, the seizure or suspension of judgment debtors' national driver's licenses (CNH) and passports as a means of compelling them to fulfill their obligations.
However, there is still divergence as to the possibility of suspension/seizure of these documents. The constitutionality of such coercive measures, which could, in theory, violate constitutional precepts such as the guarantee of freedom of movement and the right to come and go is debated.
The matter was submitted to the Superior Court of Justice (STJ) for review recently in the judgment on an appeal on habeas corpus filed against a decision by the São Paulo State Court of Appeals, which ordered the suspension of the passport and driver's license of a debtor in default of almost R$ 17,000 (RHC 97.876/SP).
In the case, the STJ found that seizure of the passport was disproportionate and unreasonable, offending the debtor’s constitutional right to come and go. However, with regard to the CNH, the STJ decided that the suspension of the document was due since there was supposedly no disrespect to the right of movement, since, even if the debtor is not authorized to drive a car, his right to come and go is guaranteed.
The same decision also pointed out that the seizure of the passport could prove adequate in another context, as in searches for assets of debtors who have money abroad.
In two other decisions, the STJ also confirmed the possibility of suspending the right to drive of debtors in default, adding that this coercive measure does not impede the right of movement (RHC 88.490/DF and HC 428.553/SP).
Thus, the STJ indicates that suspension or seizure of the CNH of defaulting debtors is a valid measure as a means of compelling them to fulfill obligations to pay.
In any case, as explained by recent decisions issued by the STJ, the application of atypical coercive measures authorized by article 139, item IV, of the CPC depends on a factual analysis of each case, which will allow for a finding regarding their proportionality and suitability. It is understood that such measures are applicable only when other measures defined in the Code of Civil Procedure have already been exhausted and are not fruitful.
The subject must be reviewed by the Federal Supreme Court (STF), due to a direct action of unconstitutionality filed in May of this year by the Workers' Party. The plaintiff in the action claims that the suspension and seizure of documents to compel the debtor to pay a debt, based on article 139, item IV, of the CPC, violates fundamental rights of freedom of movement and the dignity of the human person. It will be up to Justice Luiz Fux, the reporting judge in the case, to review the action for the STF to issue its decision.
