The Supreme Federal Court has consolidated the jurisprudential position that prohibits civil imprisonment for debt. The basis for this guideline is the Pact of San Jose, Costa Rica, ratified by Brazil in November 1992, which, according to the Supreme Court, occupies a supralegal position and, as a corollary, cannot be contradicted by any infraconstitutional norms.
The above-mentioned direction, on the one hand, reaffirms the sphere of concretion and enforcement of fundamental rights stemming from the aforementioned international norm, which is no small feat and, moreover, always necessary. On the other hand, however, it raises a red flag, as it ultimately eliminates from our domestic legal system an instrument with undeniable inhibitory efficacy against debtors. It does so under the pretext that the norm contained in Article 5, Section LXVII, of the Constitution can be limited to the point where a non-constitutional norm completely nullifies its content. This is serious, as it can be considered open to the natural interpreter of the Constitution allowing the fully effective content of the Higher Law to be undermined by a norm inferior to it. While the notion of the function of delimiting constitutionally protected assets through the exercise of jurisdiction is elementary, no less fundamental is the assertion that this activity cannot lead to the denial of constitutional content. It is crystal clear that the supralegality of any constitutional norm is not synonymous with supraconstitutionality. It is for this reason that doctrine scientifically establishes what constitutes essential content as a means of preserving fundamental rights themselves.
By preventing the arrest of the unfaithful depositary, the Supreme Federal Court (STF) does not propose any other mechanism that could produce the same deterrent effect on the debtor, in favor of procedural effectiveness. This, when considering the alimony nature of labor credits, assumes considerable gravity, as it has the potential to frustrate any procedural effort toward reparation imposed on a legal relationship already characterized by asymmetry between its components. Furthermore, it is even possible that, very quickly, this case law recommendation will constitute yet another element discouraging employers from complying with the law, adding to many others that are also becoming more established, such as the exemption of the successor from liability in judicial reorganization, to cite just one example.
The impunity of the unfaithful depositary draws the attention of labor law enforcers to the need for a hermeneutic approach that, in light of current instruments, does not prevaricate regarding the use of legal mechanisms made available to them by the current order, which materialize the law contained in the enforceable titles. The combination of reflection and action, directed in this direction, leads not only to strengthening the belief in the Judiciary's capacity as a solution and, therefore, a pacifier of social conflicts, but, above all, to the certainty of its capacity as an enforcer of the law itself, encouraging those who comply and discouraging those who prefer to remain outside the established order.
Editorial Board