1/2/2020
The 4th Panel of the Superior Court of Justice (local acronym STJ) has recently issued a preliminary injunction staying the effects of a judgment entered in a Habeas Corpus case (Case No. 52.378) that prohibited the defendants to a civil insolvency case from leaving the jurisdiction of the court. In the case in hand, the defendants are a couple who owe a debt of over BRL 3 million.
This prohibition to travel was imposed by the 1st Court of Rio de Janeiro, state of Rio de Janeiro, based on a provision of the Code of Civil Procedure (section 139, clause IV), which expressly authorizes courts to impose any coercive measures deemed necessary to ensure compliance with a judgment. The decision was also backed by a provision of the Court-Supervised Reorganizations and Bankruptcy Act (section 104, III) and by the fact that the proceedings have been ongoing for over 13 years without the defendants showing any collaboration.
At the appellate level, the Rio de Janeiro State Court of Appeals upheld the trial court decision.
The Supreme Court (STJ) has already analyzed the issue of the imposition by courts of non-regulated coercive measures in another case (Appeal in the Habeas Corpus Case No. 97.876-SP). There, the coercive measure was the confiscation of the debtor’s driver’s license, based on the same provision of the Code of Civil Procedure (section 139, clause IV) and the STJ upheld the decision.
By confiscating the driver’s license, the STF not only enforced the Code of Civil Procedure but also confirmed in court that suspending someone’s driver’s license does not constitute a violation of that person’s freedom of movement.
But the STJ voiced a different position in this most recent case. By granting the preliminary injunction staying the prohibition to travel in the recent Habeas Corpus case, Justice Salomão showed a different, more restrictive understanding of the matter: that the prohibition to travel imposed on the defendants constitutes a sort of “reprehensible coercive measure” because it unjustifiably affects the defendants’ rights.
Justice Salomão also relied on the fact that restricting the defendants’ freedom of movement is a disproportionate and unreasonable measure in this case.
To corroborate his decision, Justice Salomão explains the importance of distinguishing punitive measures and enforcement measures. Because the purpose of enforcement measures is to satisfy the debt – and not to punish the debtor – they are not to affect the defendants’ fundamental rights.
Justice Salomão clarifies that a three-step test must be applied when analyzing whether a coercive measure can in fact be imposed: (i) the relation between the right involved in the coercive measure and the right sought in the judgment must be proportionate and reasonable; (ii) the decision imposing the coercive measure must be well-grounded and the defendant must be heard; and (iii) the coercive measure must be used as a way to protect a fundamental right – since it affects a defendant’s right.
This clearly modified the requirements for the imposition of a non-regulated coercive measure as an enforcement measure. The approach is now less focused on proving that regulated coercive measures are not effective – thus justifying the use of non-regulated coercive measures – and more focused on analyzing whether the coercive measure is proportionate and reasonable with respect to the defendant’s right that will be affected by it.
It is clear that the Brazilian Superior Courts’ opinions on this matter have varied in a short period of time, which shows that the coercive measure provision of the Code of Civil Procedure (section 139, clause IV) is not easy to apply.
