The New Code of Civil Procedure, which came into effect in 2016, contemplates in clause IV of article 139, the possibility of adopting any coercive measures seeking to ensure compliance with judicial orders, including those relating to payment obligations.
Given this new scenario, a number of Judges and State Courts began to order the seizure of the debtor’s national driver’s license (“CNH”) and passport as a coercive measure for seeking to ensure that such debts will be paid.
However, another part of the Judiciary has gone against the enforcement of the measure of seizing a debtor’s documents as a coercive means to pay the debt, since the adoption of such measure would be a serious infringement of the fundamental right of freedom of movement of that individual.
In this regard, the matter was ruled upon by the Superior Court of Justice (“STJ”), when reviewing Habeas Corpus No. 99,606/SP, reported by Justice Nancy Andrighi, who clarified that the Habeas Corpus is not the correct procedural measure to challenge a court’s decision ordering the seizure of the debtor’s CNH, as such measure would not infringe the fundamental right of freedom of movement.
In turn, as far as seizing a debtor’s passport is concerned, the STJ understanding was that the measure could infringe the right of freedom of movement of the debtor depending on the specific case, for which reason the matter was finally reviewed by the Superior Court.
Therefore, the final understanding of the STJ was that the seizure of a debtor’s CNH or passport as a measure to compel him/her to settle a debt can be applied if the decision is duly substantiated, observes the debtor’s right to defend himself/herself and upholds the principle of least onerosity that should guide the enforcement proceedings.
The most recent example of the application of this measure is the case of soccer player Ronaldinho Gaúcho, who had his passport seized by the State Court of Rio Grande do Sul due to non-payment of fines for environmental damages arising from irregular constructions in a preservation area. In conclusion, in view of the new STJ understanding, in all on going enforcement proceedings, it is possible to impose restrictions such as the seizure of CNH or passport so debtors can comply with their obligation to pay the amount to the creditor in the most effective way.