This article addresses the adoption of unconventional enforcement measures in execution proceedings, aiming at the satisfaction of judicial protection. It emphasizes the importance of the effectiveness of judicial performance in civil procedural law, while underscoring that such effectiveness should not be pursued disregarding constitutional values, requiring a balancing of the means used in light of fundamental principles enshrined in the Constitution. In the context of unconventional enforcement measures, it is crucial that such measures do not violate human dignity, a fundamental principle of the Constitution, and that they are proportional and reasonable, in addition to being effective. The pursuit of effectiveness is a fundamental principle in the adoption of such measures, as otherwise the implementation of an unconventional measure may have a purely punitive character, contributing little or nothing to the effective satisfaction of the intended protection. Furthermore, it is essential to ensure due process and full defense to the debtor, respecting their fundamental rights and subsistence. The flexibility of unconventional enforcement means allows for an adaptive approach, which must be analyzed on a case-by-case basis, based on the specificities of the proceeding, however, attention must always be paid to not compromise the dignity of the debtor and to ensure a balance between the effectiveness of enforcement and the protection of fundamental rights. Undoubtedly, it represents a useful instrument for specific cases, in which it is proven possible to satisfy judicial protection with such unconventional means, they may be used as a means of satisfying creditors' rights, which also deserve judicial protection.
This article discusses the adoption of unconventional means as an alternative to seek enforcement satisfaction, in situations where typical enforcement means prove ineffective. Throughout the work, some constitutional guidelines will be adopted as delineating elements to establish the limits and possibilities in the adoption of unconventional means in enforcement. Thus, aspects such as enforcement satisfaction, effectiveness of enforcement, as well as proportionality, reasonableness, and effectiveness in enforcement, with the adoption of unconventional means, will be central themes. Therefore, the general objective of the article is to analyze unconventional means of enforcement in civil procedural law, considering constitutional principles and their conformity with human dignity, without forgetting the pursuit of enforcement satisfaction. As specific objectives, we can list the following: 1) investigate the application of the principles of proportionality and reasonableness in unconventional enforcement means, 2) analyze the effectiveness of enforcement in light of fundamental rights and, 3) verify the position of the Federal Supreme Court (STF) regarding unconventional enforcement means. The research methodology involved bibliographic review on the topic, as well as analysis of jurisprudence from specific courts, as described above. It is, therefore, bibliographical and documentary research. Due to the theme addressed, the cut-off point for most documents and references was established as the year 2016, since the object of study is one of the items of Article 139 of the Code of Civil Procedure of 2015.
To achieve the intended objectives, the article is structured in the following topics, briefly described below. Initially, a general overview of civil enforcement proceedings in Brazil will be presented, in order to highlight the degree of satisfaction of civil enforcement. Then, unconventional enforcement means will be addressed, as well as any constitutional principles involved in this type of discussion, such as those related to credit satisfaction (enforcement), as well as those of human dignity, among others. The central point will be how to seek the effectiveness of enforcement, in accordance with the fundamental rights of the debtor (and the creditor). Therefore, among others, the analysis of the principles of proportionality, reasonableness, and, last but not least, effectiveness, will be made, since without effectiveness, the adoption of an unconventional enforcement means may be characterized by the adoption of a restrictive measure without any effectiveness to the useful result of the process.
The judge, in conducting the process, must seek to resolve the dispute within a reasonable time. The reasonable duration of the process is a constitutional matter, enshrined in Article 5, LXXVIII, which establishes the "reasonable duration of the process and the means that guarantee the speed of its processing." The Code of Civil Procedure, Article 4, establishes that "the parties have the right to obtain in a reasonable time the full solution of the merit, including the satisfaction activity" (Brazil, 2015). In practice, as seen in the first topic of this article, the satisfaction activity is far from being resolved within a reasonable time. It is in this context that the possibility of applying unconventional means arises to try to meet the constitutional and procedural precept outlined in the previous paragraph, namely, the satisfaction of credit, of protection, within a reasonable time.
Usually, when one thinks of unconventional enforcement means, what comes to mind is Article 139, in its item IV, which states, textually: "The judge shall direct the process according to the provisions of this Code, being incumbent upon him: (...) IV - to determine all necessary inductive, coercive, mandamus or subrogatory measures to ensure compliance with a court order, including in actions concerning pecuniary performance" (Brazil, 2015).
It is clear that in order to seek the effectiveness of enforcement, other measures beyond those provided for in the 2015 Code of Civil Procedure are necessary. It is worth noting, however, that there are other articles in the aforementioned legal framework that deal with enforcement effectiveness, even by unconventional means. For example, Article 297 states, literally, "The judge may determine the measures he deems appropriate for the enforcement of provisional relief." Furthermore, Article 380 of the same law can be cited, which states in its sole paragraph that "the judge may, in case of non-compliance, determine, in addition to the imposition of a fine, other inductive, coercive, mandamus or subrogatory measures." Or even, one can resort to Article 403, also in its sole paragraph, which states:
"If the third party fails to comply with the order, the judge shall issue a seizure warrant, requisitioning, if necessary, police force, without prejudice to liability for the crime of disobedience, payment of a fine, and other inductive, coercive, mandamus or subrogatory measures necessary to ensure the enforcement of the decision" (Brazil, 2015).
The articles related to unconventional means of enforcement, or forced execution, do not end there. Article 536 of the Code of Civil Procedure can be cited, which asserts that "in the enforcement of a judgment recognizing the enforceability of an obligation to do or not to do, the judge may, ex officio or upon request, for the effectiveness of specific protection or the obtaining of protection by equivalent practical result, determine the measures necessary for the satisfaction of the creditor." Finally, still within the scope of the Code of Civil Procedure, there is Article 773, which mandates that "the judge may, ex officio or upon request, determine the measures necessary to comply with the order to deliver documents and data".
Individual rights and guarantees hold a special place in the Brazilian legal system, finding shelter in the Constitution of the Republic. Barroso (2023) asserts that "right is the possibility to exercise powers or demand conduct. Guarantees are institutions, material conditions, or procedures made available to right holders to promote or safeguard them." The cited author also states that human dignity is one of the main foundations of the Brazilian constitutional state, which implies that in the presence of eventual conflicts in the application of legal norms, that which is considered one of the main, if not the main, constitutional foundation, should prevail. This position is also supported by Nery Jr. and Abboud (2019) when they affirmed that: "this principle is not just a rhetorical device or a last resort for complementing possible interpretations of established norms. It is the reason for the existence of Law. It would be sufficient on its own to structure the legal system."
Certainly, the satisfaction of judicial protection intended by the creditor, which finds support in the Federal Constitution itself, as well as in the Code of Civil Procedure, as discussed in the previous section, must be sought, however, some important elements and considerations must be taken into account in the analysis of the specific case, after all, "this is not about an unchecked power: it is a duty-power guided by scientific criteria of moderation, proportionality, reasonableness, and sufficiency" (Guerra, 2021).
The need for the judiciary to seek unconventional means, in specific situations, is supported so that the effectiveness of judicial protection can occur; otherwise, justice itself would be discredited (Theodoro Junior, 2015). Guerra (2021) raises an interesting point regarding the use of unconventional enforcement measures, which is sufficiency. The concept of sufficiency proposed by the author can be related to effectiveness, which will be presented shortly in this section.
Next, the discussion of the concepts of proportionality, reasonableness, and effectiveness will be presented. These are important concepts, not only from the perspective of civil procedure but also from a constitutional perspective. In a decision from 2019, the Fourth Panel of the Superior Court of Justice, in AREsp. 1.495.012/SP, under the rapporteurship of Minister Marco Buzzi, defined that:
"The jurisprudence of this Superior Court has established that unconventional measures for credit satisfaction cannot exceed the principles of proportionality and reasonableness, and it must also observe the principle of the least onerousness to the debtor, with the use of the institute not being admissible as a procedural penalty."
The above decision already anticipates the concept of effectiveness, insofar as it states that the unconventional measure to be adopted cannot be configured as mere procedural penalty. In other words, in addition to proportionality and reasonableness, there must be the possibility of achieving the intended protection with the unconventional measure to be adopted.
Proportionality is a term commonly used when discussing the use of unconventional means. The purpose of proportionality is to curb abuses by the Public Power, especially when restricting fundamental rights in any way. In this sense, there can only be a restriction on fundamental rights when a set of requirements is met: a) the restriction must be constitutionally authorized; b) the restriction must serve the social interest and cannot be based on the preservation of public interest; c) the restriction must be exhaustively justified; d) the Public Power act that restricts the fundamental right can be extensively reviewed by the judiciary; e) the restriction on fundamental rights must be proportional in terms of Ubermassverbot and Untermassverbot (Nery Jr; Abboud, 2019).
Ubermassverbot can be understood as effective protection, while Untermassverbot can be defined as limitation of excess (Nery Jr; Abboud, 2019). It is worth noting that proportionality should not be confused with balancing, which, in the words of Robert Alexy, applies to resolve any conflicts between fundamental rights (Alexy, 2011).
The principle of reasonableness is of vital importance for judicial protection. It is a crucial element for the administration of justice. According to Barroso (1996), it is an important tool for evaluating the actions of public power, in the sense that it does not offend essential principles of justice. "Reasonable is what is in accordance with reason, assuming balance, moderation, and harmony; what is not arbitrary..." (Barroso, 1996). The adoption of the principles of proportionality and reasonableness is fundamental for the application of the so-called unconventional measures. This command is more constitutional than procedural. Procedural commands are more related to the exhaustion of typical enforcement means without having achieved protection satisfaction.
However, for the legitimate application of unconventional enforcement means to be characterized, proportionality and reasonableness alone are not enough. Effectiveness, which will be discussed next, must also be considered.
The analysis of effectiveness here can initially be weighed in the terms proposed by Didier Jr (2017) when he states that "effective is the process that realizes the right asserted and judicially recognized." However, it should be clear that effectiveness here is closely related to the importance of adopting the unconventional measure for the satisfaction of enforcement. In other words, to be effective, to have effectiveness, means that the unconventional measure, usually restrictive of rights, typically affecting the debtor's person rather than their assets, will lead to the resolution of the process. Otherwise, the measure will resemble a lasting or eternal punishment to the debtor's person, with no practical result for the intended satisfaction.
In this section, we will analyze the jurisprudence on the topic, starting with the discussion of ADIN 5491 within the scope of the Supreme Federal Court (STF), followed by the analysis of the jurisprudence of the Superior Court of Justice (STJ), and concluding with the analysis of the jurisprudence of the Court of Justice of the State of São Paulo (TJ-SP).
The Direct Action of Unconstitutionality (ADIN) 5491, proposed by the Workers' Party, was filed with the STF on May 11, 2018. It was assigned to Justice Luiz Fux's docket, and on December 19, 2018, the opinion of the Attorney General of the Republic, represented by Attorney General Raquel Dodge, was attached, advocating for the unconstitutionality of atypical execution methods, specifically Articles 139-IV, 297, 380, single paragraph, 403, single paragraph, 536-head and §1 and 773 of the Code of Civil Procedure.
In the judgment of ADIN 5491, the vote of the Reporting Justice Luiz Fux pointed to the constitutionality of the provisions of the Civil Procedure Code related to atypical execution methods. Thus, the adoption of measures such as the seizure of the national driver's license, passports, and the prohibition of participating in public tenders, to name a few examples, could be adopted when necessary, "provided that fundamental rights are not infringed upon and the principles of proportionality and reasonableness are observed."
It is worth noting that the judgment of ADIN 5491, which determined the constitutionality of article 139, IV, and other articles related to atypical execution methods, did not aim to release the indiscriminate adoption of such measures. During the execution process, attention must be paid to constitutional principles.
First and foremost, it is important to highlight that civil procedural law has, as one of its fundamental objectives, the effectiveness of judicial protection, which includes the effectiveness of decisions rendered by judicial bodies. It is not acceptable for an execution judgment to be deliberately disobeyed, risking the demoralization of the judiciary as well as the risk of the tutelage obtained being rendered useless.
However, the pursuit of this effectiveness cannot be pursued in a manner disconnected from constitutional values, requiring the weighing of means used in light of fundamental principles. In the context of atypical execution methods, it is essential that such measures do not violate the dignity of the human person, a fundamental principle of the Constitution.
The adoption of measures that cause disproportionate embarrassment, exposure, or humiliation of the debtor, for example, would be inconsistent with this principle. Thus, when analyzing atypical execution methods, it is necessary to observe the proportionality and reasonableness of the measures adopted. Measures that are excessively invasive or cause disproportionate harm to the individual sphere of the debtor may be considered unconstitutional.
Moreover, it is relevant to consider the guarantee of due process and full defense. Atypical execution methods must ensure the debtors the opportunity to express themselves and contest the measures adopted, guaranteeing them space to present arguments and evidence in their defense. Another crucial point is the need to respect the fundamental rights of the debtors, including regarding their subsistence and dignity.
Measures that severely compromise the ability to sustain oneself or violate fundamental rights must be carefully analyzed in light of the constitutional principle of human dignity. The critical analysis of atypical execution methods in civil procedural law, in light of constitutional law, must prioritize compatibility with fundamental principles, especially the dignity of the human person.
The effectiveness of execution cannot override constitutional values, requiring a balanced weighing between the pursuit of creditor satisfaction and the protection of debtor rights and dignity. When addressing atypical execution methods, it is important to emphasize that civil procedure should not be seen only as a technical instrument for the satisfaction of material rights, but also as a means of protecting fundamental rights.
In this sense, respect for human dignity, a principle enshrined in Article 1, III, of the Brazilian Federal Constitution, is essential.
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BRASIL. Lei nº 13.105, de 16 de março de 2015. Institui o Código de Processo Civil. Diário Oficial da União, Brasília, DF, 17 março 2015. Disponível em https://www.planalto.gov.br/ccivil_03/_ato2015-2018/2015/lei/l13105.htm. Acesso em: 24/03/2024.
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