Código de Processo Penal Comentado | Flavio Meirelles Medeiros

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Art. 118. Before the final sentence becomes final, the  seized things cannot be returned as long as they are of interest to the process.

They cannot be refunded as long as they are of interest to the process.

Seizure of things that are related to the crime:  The seizure of things and objects that are related to the crime is provided for in several provisions of the procedural law. Article  6 of the CPP, in its items II and III , determines that, as soon as it becomes aware of the commission of the criminal offense, the police authority must seize the objects that are related to the fact, after being released by the criminal experts, and collect all the evidence that serves to clarify the fact and its circumstances. Dealing with searches,  article 240 of the CPP, in its provisions, prescribes that a house search will be carried out, when justified reasons authorize it to seize things found or obtained by criminal means, seize falsification or counterfeit instruments and counterfeit or counterfeit objects, seize weapons and ammunition, instruments used in practice of crime or intended for a criminal purpose, discover objects necessary to prove the offense or defend the defendant, collect any element of conviction. As for the personal search, it is authorized when there is a well-founded suspicion that someone is hiding a prohibited weapon or the objects mentioned above. The instruments of the crime, as well as the objects of interest to the evidence, will accompany the investigation records when they are sent to the Judiciary ( article 11). When the infraction leaves traces, the examination of the body of the crime, direct or indirect, will be essential, and the confession of the accused cannot replace it ( article 158 ). Failure to examine the corpus delicti in offenses that leave traces leads to the nullity of the process ( article 564, item III, letter “b” , unless the traces have disappeared, and testimonial evidence can make up for the lack ( article 167 ).

Meaning of final sentence:  The expression “final sentence” contained in  Article 118  does not only cover acquittal and condemnatory sentences. Reaches all decisions with definitive force. Final decisions are those that put an end to the process by judging the merits, but without expressing an opinion on the accusation formulated (examples: acknowledgment of prescription, archiving of the investigation, recognition of res judicata).

The police and judicial authority can return:  Before the final sentence becomes final, the seized things cannot be returned as long as they are of interest to the process. If, during the course of the investigation or the proceedings, they are not of interest to the investigation or the proceedings, the police chief or the judge is authorized to determine the restitution.

Restitution and writ of mandamus:  The decision that grants or rejects a request for restitution may be subject to a writ of mandamus. The MP, the investigated/indicted/accused, the victim, the owner and the third party in good faith may have a legitimate interest in the enforcement of the mandatory order. Seized objects can prove both guilt and innocence and, consequently, it may be in the interest of both the Public Prosecutor’s Office and also the investigated/indicted/accused and the victim to keep them seized. Those who read the CPP as if it were a mere instrument for carrying out punitive rights must pay attention to letter “e” of paragraph 1 of  article 240, according to which the purpose of the house search, among other objectives, is to discover objects necessary for proof of infringement or “for the defense of the defendant”. Evidence matters, and belongs, to both the prosecution and the defence, and hence why restitution is open to challenge by both. Registration is always opportune: just as the Public Prosecutor’s Office can request diligences from the police authority during the investigation phase, the defense can request them. If neglected, a writ of mandamus or  habeas corpus may be filed . Object of the request can be the most diverse: search and seizure, expertise, questioning of witnesses, etc. 

Jurisprudence

Restricted assets, rights or values ​​and appeal:  It is possible to lodge an appeal, based on article 593, II, of the CPP, against a decision that has determined a security measure provided for in art. 4, caput, of Law no. 9.613/1998 (Money Laundering Law), despite the possibility of direct application to the constricting judge aiming at the total or partial release of the constrained assets, rights or values ​​(art. 4, §§ 2 and 3, of the same Law) ( REsp 1.585.781-RS, Reporting Justice Felix Fischer, judged on 6/28/2016, DJe 8/1/2016 – Newsletter n. 587 ).

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