Art. 134. The legal mortgage on the defendant’s properties may be requested by the victim at any stage of the process, provided there is certainty of the infraction and sufficient evidence of authorship.
Mortgage, mortgage application and mortgage specialization
The mortgage: Mortgage, from the Latin hypotheca , derived from the Greek, is the real right of guarantee. It is levied on immovable property or certain movable property legally considered immovable. It dispenses with tradition, keeps the debtor in possession of the asset and only requires public registration. As a precautionary measure in criminal proceedings, it aims to repair the damage to the person injured by the crime and to the third party in good faith and, if there is a remaining balance from the eventual sale of the mortgaged asset, to settle the pecuniary penalties and procedural expenses.
Legal mortgage on legitimately sourced assets: The mortgage can be conventional, judicial or legal. The convention is in accordance with the parties. The judicial, of judicial decision, and the legal comes from provision in law. Article 1,489, item III of the CC , grants a legal mortgage as a result of the crime: “The law grants a mortgage to the offended person, or to his heirs, on the offender’s properties, to satisfy the damage caused by the crime and pay court costs ” . This mortgage falls on the assets of lawful origin of the accused/defendant. If they are goods acquired with the proceeds of the infraction, they must be the object of confiscation, not of mortgage.
Mortgage application: Several authors maintain that a legal mortgage is not required , because it would already be legally granted. What would be demanded would be the specialization of the mortgage, according to article 135. Now, what is required is the mortgage. And when the mortgage is requested, the properties on which it must fall are specified. That’s specialization. To specialize is to specify, discriminate, particularize. If Carlos owns a chocolate shop, that doesn’t mean he won’t stop requesting a chocolate from his clerk when he wants one for himself. And, in addition to requesting a chocolate, he will specialize his request, asking especially a Black Diamond. Therefore, the legal mortgage can be requested (Article 134) by the offended party, upon petition with the specialization of the property or properties that will have to be specially mortgaged (Article 135). The expression specialization refers to the term especially . Both words, used in article 135, refer to the property, or properties, which must be particularized, specified, for purposes of the mortgage.
Filing in a separate section and request in the investigation
Filing in separate electronic process: The mortgage application is an incident procedure. It does not suspend the criminal process. Like every incident, it must be reported separately, so as not to embarrass, disturb the progress of the main process, whose progress is not suspended. Being electronic, as all procedures tend to be from now on, it proceeds independently and in an appendix. Attached, in digital language, means that it receives a viewable entry key called link . A link appears next to the main process . Clicking on it opens the attached case (the incident case). Link it is english word. It means connection, link. It is a term often used in computing. It establishes a clickable command through word or image, which allows redirection to another internet page (which may be another process).
The mortgage can be requested in the inquiry: The legislator, in article 134, made a mess. On the one hand, it says that a legal mortgage on the defendant ‘s properties can be requested , on the other hand, it indicates that this can be done at any stage of the process. However, if they belong to the defendant’s property, it is at the investigation stage that a mortgage can be requested; if it is at any stage of the process, a mortgage cannot be requested during the investigation stage. And now?! It is necessary to admit the obvious. The legislator is not perfect, and the correct interpretation is one that seeks the will of the law, not its literalities, which are often confusing and contradictory. The solution to the problem is simple. The offended party owns, holds the legal mortgage on the defendant’s properties long before the start of the investigation. He has had this mortgage since the commission of the crime. It is the prediction of article 1.489, item III of the CC which grants a legal mortgage as a result of the crime: “The law grants a mortgage to the offended person, or to his heirs, on the offender’s properties, to satisfy the damage caused by the crime and pay court costs.” If, by legal determination, the offended party already has the mortgage before the investigation, he can indisputably apply for it during the investigation. Furthermore, the mortgage on the defendant’s properties constitutes a measure of a precautionary nature. Being precautionary, it is an urgent measure. It makes no sense to wait for the process to begin before authorizing the mortgage, as it is well known that there are inquiries that take years to complete. If there is a lot of urgency, the injured party may resort to arrest (article 136), since the mortgage procedure is not quick (article 135). Obtained the arrest, an order is issued to be entered in the Real Estate Registry prohibiting the sale of properties while the mortgage procedure is in progress. The arrest order is revoked if the legal mortgage registration process is not initiated within 15 days (article 136), which confirms that the mortgage can be initiated at the investigation stage, as we maintain, since the injured party, making use of the arrest at the investigation stage, inevitably, given the short period of 15 days, you will have to start the mortgage procedure still at the inquisition stage.
Legitimacy and unnecessary need to demonstrate periculum in mora
Legitimacy to apply for a mortgage: The authority to apply for a mortgage rests with the Public Ministry (see comments on article 142 ), the victim, their heirs or their legal representative and the assistant to the prosecution.
No need to demonstrate the periculum in mora : In order to grant the specialization of the legal mortgage, article 134 only requires the certainty of the infraction and sufficient evidence of authorship . No mention is made of the need to prove the danger of delay, that is to say, there is no requirement that there be evidence that the indicted/accused is fraudulently dissipating his assets. This condition does not even exist because the mortgage is legal, that is, the law confers it on the offended party. There is no impediment, however, to the reversal of the burden of proof, allowing the defendant/accused to prove that there is no need to impose the real burden.
Attachment of family property and moiety
Attachment of family property: As provided for in article 3, item VI of Law n. 8,009 of 1990 , the unseizability of the family property cannot be used when it is acquired with the proceeds of a crime or for the execution of a criminal sentence condemning the reimbursement, indemnity or forfeiture of assets. In the case of property in a condominium, third-party embargoes are allowed (Article 130), such as the defense of sharecropping.