Superior Court of Justice (STJ) defines criteria for implementing atypical measures in executions

Measures taken during the course of enforcement proceedings to satisfy a debt that are not expressly provided for by law are called atypical measures. These measures find legal basis in Article 139, IV, of the Brazilian Code of Civil Procedure (CPC), which establishes a general power for judges to determine ” inductive, coercive, mandatory, or subrogatory measures necessary to ensure compliance with a court order .”

The popularization of some measures, such as the blocking of driver’s licenses, seizure of passports, and cancellation of credit cards, has brought to the forefront a debate about the legality of some measures, especially considering that, in practice, these measures generally reveal some level of conflict with constitutional rights and guarantees. The constitutionality of Article 139, IV, of the CPC, however, was recognized by the Brazilian Supreme Court (STF) in the judgment of ADI 5.941/DF .

Having overcome objections to the constitutionality of the legal provision by the STF, in the judgment of Repetitive Theme 1137 [1] , the STJ established criteria for the implementation of atypical measures in civil enforcement proceedings, taking into account, on the one hand, the pursuit of the effectiveness of enforcement protection and, on the other hand, the rights and guarantees of the debtor.

The STJ did not provide a definitive solution to the issue, limiting itself to establishing some guidelines for the examination of the matter by the Judiciary for civil enforcement proceedings – that is, non-fiscal ones. It established that: (i) decisions must be duly reasoned, demonstrating the need in the specific case to use the measure for the effectiveness of enforcement protection; (ii) the measures should not be the first remedy used in the enforcement proceedings (subsidiary nature); and (iii) the principles of least onerousness, adversarial proceedings, proportionality and reasonableness must be observed, with an analysis of the validity of the measure over time.

With the decision made by the STJ, the examination of atypical measures will require greater attention from the lawyers who request them, and they will have to present solid arguments for the granting of the measure, as well as from the magistrates, who will have to analyze the relevance of the measure to the specific case with greater caution and more robust reasoning.

Reference

[1] https://processo.stj.jus.br/repetitivos/temas_repetitivos/pesquisa.jsp?novaConsulta=true&tipo_pesquisa=T&cod_tema_inicial=1137&cod_tema_final=1137