As per the recent judgment of the ADI 5.941the Plenary of the STF, by majority vote, dismissed the action to establish the constitutionality of the atypical executive measures provided for in article 139, IV, of the Code of Civil Procedure.

Thus, judicial decisions that apply atypical measures, such as the suspension of a driver's license, seizure of a debtor's passport, among others, are considered constitutional (except for any excessive application of the measure in the specific case, as will be seen below).

That said, for the sake of better understanding, it should be kept in mind that the atypical measures are not intended to punish the debtor, but to compel him to settle his debts in execution by means of personal restrictions.

In this vein, it is necessary that, in the concrete case, judges who impose such measures take into consideration the principles of the least onerosity, the dignity of the person, and reasonableness, considering the impact of the proposed measure on the debtor's life.

Thus, for the legitimate application of atypical executive measures, there must be a minimum of evidence that the debtor has expropriable assets, prior exhaustion of the typical means of satisfying the credit, and prompt compliance with the adversarial process and the principles listed above.

It is also worth pointing out that the use of such measures gains strength in execution actions involving food, such as alimony debts, labor credits, honoraria (sums payable in lieu of suit and contractual obligations), etc.

Recently, in a decision of the Labor Justice of the State of São Paulo/SP ^[1]the use of atypical measures was determined, such as the suspension of the driver's license and seizure of passport of a defendant who owed R$ 30 thousand in a labor process, which had been underway for 13 years without the satisfaction of the debt. In this opportunity, it was proven, through prints attached to the records, taken from social networks, that the debtor had a high standard of living, with trips abroad and several purchases of luxury items, while trying to delay the execution and evade payment of the amount demanded.

In view of the great proportions reached by the judiciary, the issue of atypical executive measures came to be processed under the rite of repetitive appeals in the STJ (Repetitive Appeal No. 1. 137), discussing the possibility or not of the judges adopting the atypical executive means provided for in article 139, IV of the CPC, as well as the criteria that, in general, must be observed and the grounds that must be adopted for such.

Currently, due to the allocation to Repetitive Appeal, the lawsuits that deal with the applicability of these measures are suspended, awaiting the decision to be rendered by the STJ.

The constitutionality of art. 139, IV, of the CPC, however, as mentioned above, has already been settled by the STF, and the position to be established by the STJ on the infra-constitutional aspect of such measures is still pending.

By: Pamela D. Fraga
Civil Law | CPDMA Team

[1] SÃO PAULO. Tribunal Regional do Trabalho da 2ª Região. ATOrd 0001698-39.2010.5.02.0445, da 5ª Vara do Trabalho de Santos da Justiça do Trabalho do Estado de São Paulo, SP, 25 de fevereiro de 2023.