Código de Processo Penal Comentado | Flavio Meirelles Medeiros

Article 130º CPP – Legitimized to embargo.

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Art. 130. The kidnapping may also be suspended:
I – by the accused, on the grounds that the assets were not acquired with the proceeds of the infraction;
II – by the third party, to whom the goods were transferred for consideration, on the basis of having acquired them in good faith.
Single paragraph. No decision can be pronounced on these embargoes before the final judgment is passed.

The procedure and defenses of the accused and the third party purchaser

Procedure and initial notion:  While the embargoes of article 129 follow the rite of the embargoes of third parties of  article 674 and following of the CPC , that of this article 130 are mere defense or contestation. These are called  seizure embargoes  and can be filed either by the accused or by the third party to whom the assets were transferred for consideration. Like the embargoes of article 129, they are processed separately, with the opening of a new electronic procedure (linked to the main one). Proceed to criminal court.

Defendant’s defense:  Legal literalities do not bind defenses. Neither freedom nor property. The kidnapping may be suspended by the accused on the grounds that the assets were not acquired with the proceeds of the infraction. Once this thesis is proven, however, there will be no impediment, when the benefit of the crime is not found or when it is located abroad, for the kidnapping to affect assets lawfully acquired by the accused (paragraphs 1 and 2 of article 91 of the Penal Code  – see title  Kidnapping and lawfully acquired assets in annotations to article 125). On the other hand, in the event of seizure of assets and/or amounts greater than those equivalent to the proceeds of the infraction, it is possible to challenge the excess. The accused may also sustain other defenses, including absolute nullity of the process, res judicata, illegitimacy of the party, lis pendens, atypicality of the alleged fact, illegal evidence, etc. However, it is not mandatory. They may be alleged in criminal proceedings. Invoking these public order issues in the embargoes on the kidnapping is a right, but not a duty. It concerns defensive strategy.

Defense of the third party acquirer: The third party, who acquired the assets for consideration, which had been obtained with the proceeds of the infraction by the accused, may suspend the seizure on the grounds of having acquired them in good faith. If Carlos steals a wallet of money, if he buys a cell phone with the money (acquired with proceeds from the infraction), and sells the cell phone to Mário, who buys it in good faith, Mário is a third party in good faith. Good faith, in the hypothesis, is having carried out the transaction without knowing, without being able to know or doubt the illicit origin of the good. If there were elements to suspect the illegality of the origin of the good, good faith is excluded. The defense of the third party purchaser is also not exclusively linked to the foundation of good faith. The ground contained in item I, which benefits the accused, also favors the third party in good faith, that is, with regard to whether or not they were the assets acquired with the proceeds of the infraction. Now, if goods were not acquired with the proceeds of the infringement, this fact also benefits the third party acquirer. Therefore, the third party purchaser may also seek to demonstrate such a circumstance in its defense, if such evidence is within its reach. Nothing prevents you from alleging public order issues related to the criminal process: absolute nullity of the process, res judicata, illegitimacy of the party, lis pendens, atypicality of the alleged fact, illegal evidence, etc. It has no legitimacy, correct, but there is no violation of the law in arguing them, and once they have been brought to the attention of the magistrate, he must decree them ex officio. Therefore, the third party purchaser may also seek to demonstrate such a circumstance in its defense, if such evidence is within its reach. Nothing prevents you from alleging public order issues related to the criminal process: absolute nullity of the process, res judicata, illegitimacy of the party, lis pendens, atypicality of the alleged fact, illegal evidence, etc. It has no legitimacy, correct, but there is no violation of the law in arguing them, and once they have been brought to the attention of the magistrate, he must decree them ex officio. Therefore, the third party purchaser may also seek to demonstrate such a circumstance in its defense, if such evidence is within its reach. Nothing prevents you from alleging public order issues related to the criminal process: absolute nullity of the process, res judicata, illegitimacy of the party, lis pendens, atypicality of the alleged fact, illegal evidence, etc. It has no legitimacy, correct, but there is no violation of the law in arguing them, and once they have been brought to the attention of the magistrate, he must decree them ex officio. atypicality of the alleged fact, illicit evidence, etc. It has no legitimacy, correct, but there is no violation of the law in arguing them, and once they have been brought to the attention of the magistrate, he must decree them ex officio. atypicality of the alleged fact, illicit evidence, etc. It has no legitimacy, correct, but there is no violation of the law in arguing them, and once they have been brought to the attention of the magistrate, he must decree them ex officio.

Early sentencing and final judgment

The CPP anticipated the conviction of the accused:  For a CPP that has an Explanatory Memorandum that qualifies as “ nullity looters” those who investigate nullities in the criminal process, it is not surprising that it slips in the sole paragraph of this article 130 and condemns the accused in advance. Ironies aside, knowing how to read beyond its literal meanings, and from top to bottom (from CF to CPP), CPP is not bad. By the way, much better than all the projects that came up until then, trying to take its place. Want us to think he deserved is a good reorganization. In particular, the resources part. The term “conviction sentence” means a final decision, which includes acquittal, condemnatory and all final decisions. Decisions with definitive force 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 the statute of limitations, archiving of the inquiry,

The embargoes must await the end of the criminal proceedings:  A decision cannot be issued in the embargoes before the final decision of the criminal proceeding is passed. It is during the course of the criminal process that all the circumstances of the crime are better clarified, including those concerning the proceeds of the crime, collaborating, in this way, to decide on the embargoes on the kidnapping. At the end of the criminal process, there will be more subsidies, allowing a more precise decision on the embargoes on the kidnapping. 

Appeal and writ of mandamus

Appeal and writ of mandamus:  Against the decision that deems the seizure embargoes valid or unfounded, an appeal may be filed based on  article 593, item II , within a period of five days. As the appeal does not have suspensive effect, the writ of mandamus is also appropriate. On appeal and injunction for these cases, see the heading  Appeal and injunction  in notes to article 120.

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