Freedom of movement: a reflection about the constitutionality of the atypical means on the executive prosecution

Abstract

The constitutionality of the use of atypical means in execution proceedings has been the subject of discussions in doctrinal and jurisprudential contexts, notably because it is possible to infringe on the fundamental rights of the debtor, which necessarily implies disregard for the dignity of the defendant himself. On the other hand, the creditor has a latent right to have his claim satisfied or to make a judicial ruling against the debtor. In this sense, this research seeks to approach execution as a procedural phase, differentiating expropriation acts into typical and atypical, pointing out the fundamental rights that may be violated and conceptualizing them, also balancing the rights affected by the execution claim in light of proportionality, seeking, including, the jurisprudential position regarding the possibility of applying such measures in execution proceedings. With this in mind, it was sought to make the study in evidence largely based on the deductive approach method, which is justified given the understanding that atypical measures, respecting the limits, are possible to use. Finally, the constitutionality of using the measures is highlighted, as long as the criteria of proportionality, adequacy and minimal interference in the individual field of the debtor are met.