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Imagine that you wake up on Father’s Day Sunday and, instead of hugging your child, is embracing the bunk of a 4x4m fetid cell, divided with a cell phone thief, an eventual homicide and another 20, 30 arrested for various reasons. The reason for your arrest? It is not murder, corruption or rape. It is not to pay alimony. And Brazil, in this way of doing Facebook justice, gets everyone in the same bag: the poor father who does not pay because he does not, and the scoundrel who does not pay because he does not want to. Result? Another chapter of our national specialty: punish misery and flirt with hypocrisy.
Father without money is not a bad guy; an article by Roraima Rocha. Photo: Reproduction
Art. 5, LXVII, of the Federal Constitution is crystalline: “There will be no civil prison for debt, except that of the person responsible for voluntary and inexcusable default of food obligation.” Volunteer and inexcusable are two words that the system seems to ignore. It is not any default. The civil arrest of art. 528, §3, of the CPC should only occur when the debtor deliberately fails to pay, even being able. The problem is that, in practice, the filter of “voluntarity” became a legal meme.
Brazil has, according to IBGE, more than 6.3 million unemployed (data from Pnad Continuous), not to mention the millions of subocuments that live on unstable nozzles and incomes. In a country where formal work is a luxury article, demanding the full and punctual payment of the pension, without considering the socioeconomic reality, is like charging gala in a street ball. It is to confuse absence of means with absence of character.
And yes, there are the others: those who drive imported SUV, post by drinking 18 years old Whiskey on Instagram from Thursday to Sunday and still cry misery in the process. These deserve the heavy hand of the law. But even for them, imprisonment should be the last measure. Before locking a father, the State has more logical and effective instruments: Bank account attachment (art. 854 of the CPC), blocking of vehicles and real estate (art. 831 and following of the CPC), semvientes, corporate quotas, income, and even inclusion in default registrations. Only after exhausted these measures would the civil arrest make any sense.
The problem is that the Brazilian legal gear loves the shortcut of the cell. It is hard work to track equity, cross data, go after hidden goods. It is easier to dispatch: “Secure.” It doesn’t matter if the defendant is unemployed, sick or living in favor of third parties. The process becomes a ritual of humiliation where man is reduced to CPF and updated debt.
Worst of all, in the popular imagination, the father -arrested father is automatically a crápula. It doesn’t matter if he lost his job because of an economic crisis or if he was a victim of default from his own employer. The label glues, and the effect on the relationship with the child is devastating. After all, it is not easy to explain to a child that his father was not absent for lack of love, but because the state locked him as punishment for being poor.
The Brazilian state likes to pose a childhood protector, but it is the same as the budget of education, scrapped day care centers and closes schools. It is like a doctor who antibiotic recipe, for a citizen who lives on the edge of sewage and without drinking water.
Moral of History: Punishing the father who does not pay because he is scoundrel is justice (after the other means have been exhausted). Arriving the father who does not pay because he is poor, or faces a momentary difficulty is cruelty transvestite of morality. One country that does not distinguish one thing from another is not protecting children, it is just teaching the next generation that here love and dignity are worth less than a ticket.
Roraima Rocha is a lawyer; Founding partner of MGR – Maia, Gouveia & Rocha Advogados; Master’s student in Legal Studies Emphasis in International Law (Must University – USA); Specialist in Criminal Law and Criminal Procedure (College Gran); Specialist in Civil Advocacy (Foundation of the Public Prosecution Service of Rio Grande do Sul – FMP); Member of the Prerogatives Commission, Secretary-General Court of Ethics and Discipline-TED, and chairman of the OAB/AC Criminal Law Commission; and a member of the OAB National Human Rights Commission.
