A PRISÃO CIVIL COMO MEIO COERCITIVO ATÍPICO DE EFETIVAÇÃO DAS DECISÕES JUDICIAIS

Abstract

The purpose of this article is to investigate the admissibility of civil prison as an atypical coercive measure by the national legal system, based on an interpretation in the light of the theory of fundamental rights. At first, the need for atypical executive measures to be made available to the judge is highlighted, given the inefficiency of the typified means of fully guaranteeing the fundamental right to executive protection. Also, the scope of the expression “debt” in art. 5, LXVII of the Greater Text, concluding with the permission of the extreme coercive measure, contrasting it with the fundamental rights of the debtor, all from the perspective of the Federal Constitution and the International Treaties to which Brazil is a signatory. In sequence, the ineffectiveness of criminal imprisonment is evidenced as a means of compelling the recalcitrant to comply with jurisdictional commands, also showing its predominant punitive nature. Thus, once the viability of the personal coercion technique was demonstrated, the question arises: in which cases would there be the possibility of using the civil prison as an atypical personal coercion technique, given the general clauses for effecting the jurisdictional pronouncements. For this reason, the criteria to be adopted when using them are outlined, in order to avoid transforming this important measure of effective rights into unconstitutional judicial arbitrariness. In this perspective, it uses bibliographic and documentary research with a qualitative approach and the dialectic method. In conclusion, it is noted that civil prison will often be the only means capable of ensuring satisfactory protection for fundamental rights of greater relevance than individual freedom.