Código de Processo Penal Comentado | Flavio Meirelles Medeiros

Article 133º CPP – Jurisdiction to determine the sale.

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Art. 133. Once the conviction becomes final, the judge, ex officio or at the request of the interested party or the Public Prosecutor’s Office, will determine the evaluation and sale of the assets in public auction whose forfeiture has been decreed. (Wording given by Law No. 13.964, of 2019)  (Effective)

§ 1 Of the money raised, whatever does not fit the injured party or a third party in good faith shall be collected from the public coffers. (Included by Law No. 13,964, of 2019)   (Effective)

§ 2 The calculated amount must be paid to the National Penitentiary Fund, unless there is a different provision in a special law. (Included by Law No. 13,964, of 2019)    (Effective)

Jurisdiction of the criminal court and appropriate time for the auction

Jurisdiction of the criminal court:  It is the criminal judge, the judge of the criminal process in which the assets were seized, who has the competence to determine the evaluation and public sale. There is no sending of the records to the civil jurisdiction. Incidentally, if there were,  article 143  would say so, and it does not.

Seizure and third party embargoes impeding public sale:  It is necessary to wait for the judgment of the embargoes of sequestering. Article  130 of the CPP  provides that the seizure may be suspended by the accused or by a third party, to whom the assets have been transferred for consideration, on the grounds of having acquired them in good faith. The sole paragraph of that device states: “No decision can be pronounced on these embargoes before the final judgment is passed.” Therefore, it is concluded that it is not exactly the “final and unappealable decision” ( article 133 ) that authorizes the sale of assets at public auction, but rather the final decision in the embargoes of seizure, when these are filed. The same reasoning applies to the third party embargoes of the article 129 of the CPP . If they are in progress, the public sale must await their conclusion.

Award and preferences

Adjudication:  It is authorized both by the injured party and by the third party in good faith. On adjudication, see  article 876 of the CPC .

Preference for the injured party and the third party in good faith:  The injured party and the third party in good faith have preference over the amounts determined with the public sale. Only if there is a balance, there is a deposit in favor of the National Treasury.

Goods subject to search and seizure and delaying the auction

Assets seized on the basis of articles 6 and 240:  The proceeds of crime seized on the basis of articles 6, item II, 240, paragraph 1, letter “d”, and paragraph 2, must be returned in accordance with article 118 et seq., and the instruments of the crime, as long as they consist of things whose manufacture, disposal, use, possession or possession constitute an unlawful act, will have the confiscation decreed in favor of the Union, according to article 91, item II, letter “a” of the CP. If, by mistake, or for another reason, during the search and seizure process, assets acquired with the proceeds of the crime are seized, these cannot be returned, they will be evaluated and sold at a public auction, as they should have been seized and not seized. .

Delaying the auction until the settlement of the damage:  Once the conviction becomes final, the victim, his legal representative or his heirs may promote the execution, in the civil court, for the purpose of repairing the damage. Execution may be carried out for the amount established pursuant  to item IV of the caput of article 387 of the CPP , without prejudice to the settlement for the determination of the damage actually suffered ( article 63 of the CP

P ). Item  IV of Article 387  deals with the minimum amount fixed in the judgment for repairing the damage caused by the infraction. However, it should be noted that if the judge, ex officio, determines the valuation and sale of the assets in a public auction, before the end of the liquidation process for the determination of the damage actually suffered in the civil jurisdiction, the injured party will only receive the value minimum fixed in the judgment for repairing damages. And what’s left will be collected from the National Treasury. A remedy for this problem is for the injured party to petition for the suspension of the public sale until the liquidation process is completed in the civil court. If the request is rejected, the writ of mandamus is the correct action to be filed, since it violates the net and certain right to full compensation for the damage.

Fim

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