A efetividade da prisão civil domiciliar como medida coercitiva para o cumprimento de obrigações alimentares

Abstract

The obligation to pay alimony, which may arise from marriage/stable union or kinship, is a public order rule and was established to meet the basic needs of the person receiving alimony, according to the possibilities of the person providing alimony. In addition, the duty to pay alimony is based on solidarity and, as characteristics, transmissibility and divisibility. However, in the event of non-payment of alimony, depending on the nature of the executive title, judicial or extrajudicial, the executing party may enter the sentence enforcement phase or the execution process, under the expropriation or personal coercion procedure. In this sense, the civil arrest of the debtor of alimony is based on art. 5, item LXVII, of the Federal Constitution of 1988, in art. 528 of the CPC, in Summary no 309 of the STJ and in art. 7, item 7, of the Pact of San José de Costa Rica. However, based on the principles of human dignity, the lowest burden on the defendant and the maximum effectiveness of executive protection, in addition to the need to reduce the impacts of prison overcrowding and the social and psychological consequences of incarceration, this study proposes to analyze whether house arrest could offer a more effective and humane alternative. Although the closed regime is currently the modality provided for serving civil imprisonment in Brazil, as expressly provided for in the Code of Civil Procedure, the discussion surrounding house arrest stands out for the search for solutions that are more compatible with constitutional values and the constitutionalization of Civil Law. In this context, the qualitative and bibliographical approach covers national and international doctrine, legislation and case law, analyzing how the practice can balance the debtor's right to dignity with the creditor's right to life and dignity. Furthermore, the advances and transformations necessary to align the Brazilian legal system with contemporary demands and human rights principles are discussed. The structure of the study initially addresses the historical and normative evolution of civil imprisonment, going through the patrimonialist model of Civil Law until its repersonalization with the 1988 Constitution. Next, it analyzes the legal regime of civil imprisonment in Brazil and the alternatives to deprivation of liberty in a closed regime, with emphasis on the home detention modality. Finally, it evaluates the challenges and potential of this measure in the Brazilian legal context, considering its regional and social peculiarities. Thus, the results indicate whether home detention, in addition to respecting the constitutional principles of proportionality and dignity, can be consolidated as a more effective instrument in the execution of alimony obligations, mitigating the negative impacts of traditional incarceration and representing a significant advance in the search for a more fair, humane and efficient legal system.