STF considers legal to seize driver’s license and passport – 02/09/2023 – Power

The STF (Federal Supreme Court) decided, in session this Thursday (9), that it is constitutional for the judge to order the seizure of the CNH (National Driver’s License) and passport to ensure compliance with court orders, such as payment of debts.

By 10 votes to 1, the majority of court ministers also defined that the suspension of the right to drive and the prohibition of participation in contests and public bidding with the same objective is not in disagreement with the Federal Constitution.

They followed the vote of the rapporteur, Minister Luiz Fux, who considered that the application of the measures is valid, as long as it does not advance fundamental rights and observes the principles of proportionality and reasonableness.

The ADI (Direct Action of Unconstitutionality) that questioned the constitutionality of the device, which is authorized in an article of the Code of Civil Procedure, was filed by the PT.

The court’s judgment does not address the regularity of this type of measure in relation to defendants in the criminal justice system.

In the action, the party claimed that the search for compliance with judicial decisions, however legitimate it may be, could not be given under the sacrifice of fundamental rights or trample the due constitutional process.

The rapporteur of the action, Luiz Fux, however, assessed that the application of the measures by the magistrate, as a means of enforcing his determinations, “finds limits inherent to the system in which they are inserted”. He added that the generic authorization contained in the article represents the magistrate’s duty to give effect to decisions.

The minister pondered that the judge, when applying the techniques, must obey the values ​​specified in the legal system itself to protect and promote the dignity of the human person.

Fux added that the Code of Civil Procedure brings remedies to remedy abuses and that they avoid the arbitrary use of any measures taken by the judge in concrete cases.

He considered that it will be up to the magistrate, when basing his judgment, to pay special attention to what determines the principle of the lowest cost, the reasonableness of the measure and to apply it in a less burdensome way to the executed.

According to Fux, the adequacy of the measure must be analyzed on a case-by-case basis, and any abuse in its application may be curbed upon appeal.

“None of this, it should be reiterated, authorizes the judge to ignore the fundamental guarantees of the citizen in favor of the adoption of economically efficient measures, which are constitutionally prohibited. use of proper procedural means”, he said.

Minister Edson Fachin partly disagreed with the rapporteur. For him, a debtor cannot suffer a sanction that restricts his freedom or his fundamental rights due to the non-payment of debts, except in the case of a maintenance debtor.

The Attorney General of the Union, Jorge Messias, spoke out for the constitutionality of the norm during the trial. He argued that the measures are valid and, if applied in accordance with proportion, do not compromise the right to freedom or movement.

The attorney general, Augusto Aras, assessed that the measures are disproportionate and affect fundamental rights such as the right to come and go and move around the country.

The Brazilian Association of Procedural Law manifested itself as interested in the process for the unconstitutionality of the norm, for understanding that, in pecuniary actions, the measures violate the patrimonial right.