The term "defeso" constitutes a legal category that denotes the prohibition, impediment, or legal restriction of a specific conduct, act, or exercise of a right. With transversal incidence in various branches of Law, notably in Environmental, Procedural, and Administrative Law, its primary purpose is the safeguarding of public interests, the protection of collective legal assets, and the maintenance of the integrity of mandatory norms.
Concept and Foundation
In technical-legal rigor, the term "defeso" derives from the Latin defensus, the participle of defendere, meaning that which is protected, forbidden, or interdicted. Unlike a generic prohibition, the term carries a connotation of temporary or absolute interdiction of use, frequently associated with the preservation of an asset that, by its nature, requires state protection. Its legal nature is that of a prohibitive norm of full efficacy and immediate applicability, which delimits the exercise of subjective rights in favor of the supremacy of public interest.
Historical Origin and Evolution
The genesis of the institute dates back to Roman Law, through the leges silvae and regulations on the exploitation of communal lands, where certain areas were declared "defesas" (protected) to allow for the regeneration of natural resources. In Brazilian Law, the term was consolidated in environmental and procedural legislation. Historically, the transition of the concept of "defeso" followed the evolution of the social function of property and the need for the protection of an ecologically balanced environment, moving from a merely patrimonialist view to a perspective of intergenerational sustainability.
Legal Provision and Framework
The national legal system uses the term "defeso" with technical precision in various statutes:
- Environmental Law: Law No. 11.959/2009 (Fisheries Law) establishes the "defeso period" as the temporary interruption of fishing for the preservation of species reproduction, an essential norm for maintaining the balance of aquatic ecosystems.
- Civil Procedural Law: The 2015 Code of Civil Procedure, in several provisions, uses the expression to forbid procedural behaviors, such as Art. 932, which forbids innovation in appellate proceedings, or prohibitions against surprise decisions (Art. 10).
- Electoral Law: Although the technical terminology uses "prohibitions" (vedações), the electoral period is frequently treated by doctrine as a period of administrative "defeso," where the practice of certain acts by the public administration is strictly prohibited (Law No. 9.504/1997).
Practical Application and Jurisprudence
The jurisprudence of the Superior Courts has granted "defeso" a restrictive interpretation in matters of individual rights, but an extensive one in matters of environmental protection. The Superior Court of Justice (STJ), when judging cases regarding the "seguro-defeso" (unemployment insurance for artisanal fishermen during the closed season, Law No. 10.779/2003), consolidated the understanding that receiving the benefit requires proof of artisanal fishing activity and the effective exercise of the fishing prohibition, under penalty of fraud against the public treasury. Within the scope of the Supreme Federal Court (STF), "defeso" is frequently invoked in Direct Actions of Unconstitutionality (ADIs) that challenge state laws attempting to relax federal environmental prohibitions, reaffirming that "defeso" is a matter of the Union's exclusive legislative competence to establish general norms (Art. 24, § 1, of the 1988 Constitution).
Related Principles and Divergences
The principle of "defeso" orbits the Precautionary Principle and the Prevention Principle. Doctrinal divergences arise when "defeso" conflicts with the principle of free enterprise. The majority view argues that "defeso," as a public policy norm, has a presumption of legitimacy and prevalence over private economic interest, since the degradation of natural resources or the disregard for fundamental procedural rites generate irreversible or difficult-to-repair damages.
Contemporary Relevance
Currently, the term gains relevance in the discussion on "legal certainty" and the "stability of relations." The application of "defeso" is not an obstacle to development, but a guiding mechanism. In times of climate crisis, rigor in the application of environmental "defeso" norms is the main instrument for containing species extinction. In the procedural field, clarity regarding what is "defeso" (forbidden) to the magistrate and the parties is the guarantee of a fair process, avoiding excessive judicial activism and ensuring the predictability of judicial rulings.
Legal and Jurisprudential References
- Constitution of the Federative Republic of Brazil of 1988, Art. 225 (Right to the Environment).
- Law No. 11.959, of June 29, 2009 - Provides for the National Policy for the Sustainable Development of Aquaculture and Fisheries.
- Law No. 10.779, of November 25, 2003 - Provides for the "seguro-defeso" (closed season insurance).
- Superior Court of Justice, AREsp 1.845.230/PA, Rapporteur Min. Herman Benjamin, Second Panel, judged in 2022 (Jurisprudence on proof of fishing activity).
- Supreme Federal Court, ADI 6.552/SC, Rapporteur Min. Cármen Lúcia, Plenary (Discussion on environmental competencies and prohibitions).
