A decision by the Federal Supreme Court (STF) in February 2023 deemed it constitutional to seize the driver's license (CNH) and passport of citizens with unpaid debts.
However, according to the justices' decision, seizure can only take place if it "does not impinge on fundamental rights" and must observe "the principles of proportionality and reasonableness". Maintenance debts are also exempt from the seizure of driver's licenses and passports, as well as professional drivers.
In addition, despite the decision of the Supreme Court, which is the last instance of our Judiciary, the collection of drivers' licenses and passports from debtors in default is far from a unanimous issue among magistrates and the decision can vary from case to case.
Particularly in the Labor Court, some lower court decisions have allowed debtors to have their passports and driver's licenses withdrawn. In July last year, the STF overturned a decision by the Regional Labor Court of the 10th Region (TRT-10), which had ordered the return of the passports of businessmen sentenced to pay a labor debt of almost R$30,000.
Justice Alexandre de Moraes granted the request of the worker who benefited from the credit.
In his decision, the minister explained that the new Code of Civil Procedure has expanded the possibilities for adopting coercive measures to resolve delays in complying with court decisions.
"It is the factual context that will guide the judge in choosing the most appropriate measure to encourage the debtor to fulfill his obligation," he said.
Controversial topic
Recently, singer Netinho de Paula had his passport seized by a court decision, but this case was not related to labor debts, showing that there are other possible motivations for seizing documents, depending on the specific analysis of each case.
Armin Lohbauer, a lawyer specializing in civil litigation at Barcellos Tucunduva Advogados, points out that the seizure of a driver's license does not imply a restriction on the right to come and go, except when it is used as a means of work.
He explains that the requirements for seizure include the exhaustion of ordinary means of enforcement and the existence of evidence of asset concealment.
"For this type of debtor, who turns fraud into a way of life, it is essential to apply stronger measures," says Lohbauer.
Arina do Vale, a lawyer specializing in Litigation Prevention and Credit Recovery at Albuquerque Melo Advogados, defends the need to exhaust all traditional collection measures before resorting to the seizure of driver's licenses and passports.
"In order for an atypical measure such as the seizure of passports and driver's licenses to be adopted, the creditor must have already traveled a long way in order to receive his credit," says Arina.
She adds that although any debt can lead to the seizure of these documents, it is essential to consider the debtor's profession.
Professionals who depend on their driver's license or passport to work should not have their documents seized.
"In the case of labor debts, there is greater acceptance for this type of measure, as it is a specialized court that seeks to satisfy a debt that is of a food nature. However, if the labor debtor needs their driver's license to work, this coercive measure cannot be applied, since the debtor needs their driver's license to guarantee their livelihood," says Arina.
Lohbauer also notes that some courts believe that seizure does not produce practical results in the enforcement process, but only serves to embarrass the debtor.
"I personally believe that each case must be analyzed in its particularities, as it is a highly case-by-case issue. In this context, the TRT's judgment, which found, based on an examination of the specific case, that there was no evidence of fraud, is in line with the majority of case law, reinforcing the understanding of treating debtors in good faith. It is not uncommon for debtors in bad faith, even though they have duly shielded assets, to end up paying off the debt when their sphere of rights is directly constrained, such as by the seizure of their driver's license or, in more serious cases, their passport."
Both experts agree that the judicial analysis of the debtor's behavior is what defines the application of the restrictive measure.
Arina suggests checking whether the debtor flaunts a luxurious lifestyle on social media before requesting seizure. If so, the measure will not be seen as embarrassment, but as coercion to pay. On the other hand, if the debtor doesn't live a comfortable life and depends on the driver's license to work, the seizure won't benefit the creditor.
Source: UOL