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Unanimous Decision of the 2nd Section Sets Parameters for Unusual Measures and Strengthens the Subsidiary Role of the Judiciary
The STJ established objective criteria for the use of atypical enforcement measures, such as passport suspension, driver’s license suspension, and card blocking, provided that traditional enforcement methods have been exhausted, while respecting due process, proportionality, and specific justification. This created parameters that reinforce the effectiveness of the process and delineate the scope of the general enforcement power provided for in the CPC.
Atypical Measures Now Meet Cumulative Requirements
The court decided that judges may adopt mechanisms such as passport suspension, driver’s license suspension, and card blocking, however, only when traditional means are insufficient. Furthermore, the thesis defined in Topic 1.137 highlighted that these tools must observe principles such as effectiveness, lesser burden, due process, and reasonableness. The decision requires a subsidiary role and adequate justification, reinforcing the exceptional use of these measures.
The approved thesis stated:
“In civil executions submitted exclusively to the Code of Civil Procedure, the judicial adoption of atypical enforcement means is applicable, provided that effectiveness, lesser burden, subsidiarity, specific justification, due process, proportionality, and reasonableness, including regarding the temporal validity, are considered.”
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Case History and Analysis of Appeals
A bank appealed a decision of the TJ/SP that had prevented the suspension of a debtor’s passport and driver’s license, claiming violation of the principles of proportionality and reasonableness. The São Paulo court allowed only the blocking of cards, as long as they were not intended for purchasing food.
Additionally, several amici curiae expressed their opinions.
The lawyer Clarice Frechiani Lara Leite warned that there was no demonstration of asset concealment, advocating for real due process, specific justification, and a defined timeline.
Subsequently, Anselmo Moreira Gonzalez, on behalf of Febraban, stated that the measures are constitutional and essential to ensure the effectiveness of enforcement when traditional means fail. He emphasized that the debate does not deal with fundamental guarantees but with the effectiveness of the process.
Moreover, Ana Carolina Andrada Arraias Caputo Bastos, representing FPPC, argued that atypical measures are essential when the debtor deliberately prevents compliance with the sentence, always with proportionality and due process.
Relator’s Vote and Cumulative Application Criteria
Minister Marco Buzzi stated that the CPC guarantees the Judiciary a general enforcement power that authorizes mechanisms such as the suspension of driver’s licenses, passports, and cards. However, he emphasized that its use is exceptional and requires:
- Exhaustion of typical means,
- Unjustified resistance from the debtor,
- Specific justification,
- Proportionality and due process.
Buzzi noted that these measures do not violate the right to movement, as long as they do not physically prevent the debtor’s movement.
In the concrete case, he concluded that the state decision used abstract reasoning and made the institute unviable. He ordered the TJ/SP to reconsider the appeal according to the STJ’s criteria.
Additionally, he maintained the blocking of cards not intended for food purchases, as there was no appeal from the debtor, preventing reformatio in pejus.
Internal Divergences Highlight the Importance of Adequate Justification
During the establishment of the thesis, a debate arose about including as a requirement the existence of indications of expropriable assets. Isabel Gallotti advocated for this requirement as a protection for debtors without means of payment.
However, Buzzi and Raul Araújo argued that this would limit the effectiveness of the measure, especially in cases of asset concealment.
Thus, the court approved the final thesis without the obligation of such prior proof, maintaining as essential:
- Subsidiarity,
- Proportionality,
- Reasonableness,
- Precise justification,
- Due process.
This set reinforces that the measure is exceptional, but remains available when necessary to ensure the authority of judicial decisions.
What Should Be the Future of Atypical Measures in Civil Enforcement?
The STJ’s decision reorganizes the landscape of civil enforcement and increases judges’ responsibility when analyzing requests for the suspension of documents and blocking of cards. The requirement for subsidiarity, combined with the need for concrete justification, focuses on the rationality of enforcement and the preservation of procedural guarantees.
Given this new landscape, what should be the Judiciary’s priority: to further strengthen the limits of atypical measures or to expand their use to increase the effectiveness of executions?
The debate is open — and you, what do you think about it?
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