INADEQUACY OF ASTREINTES AGAINST THE STATE: FROM GENERIC COERCION TO STRUCTURED CONTROL OF PUBLIC POLICIES

Abstract

The article critically analyzes the application of astreintes against public entities for noncompliance with judicial decisions, particularly in matters of social public policies, with emphasis on the areas of health and education. It starts from the premise that the State, as a legal person, expresses its will through public bodies and agents, and does not possess a subjective will of its own. In this sense, the imposition of daily fines on public entities is considered inadequate, as it disregards the source of resistance found in the agent acting on behalf of the State. Based on legal doctrine and jurisprudence, the article argues that responsibility should fall upon the public agent who, through negligence or abuse of purpose, prevents compliance with the judicial order. The study further shows that the increasing judicialization in social policy areas has negatively affected public budgets and the quality of services, especially at the municipal level, and argues that such repeated demands constitute structural litigation. In such cases, as established by the Federal Supreme Court in Topic 698, judicial control should prioritize dialogical approaches and require the Public Administration to present compliance plans, rather than resorting to generic coercive measures. The article concludes that the indiscriminate application of astreintes undermines the public interest and the sustainability of public policies, highlighting the need for mechanisms better suited to the institutional structure and functioning of the State.