Código de Processo Penal Comentado | Flavio Meirelles Medeiros

Article 136º CPP – Foreclosure of property.

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Art. 136. The seizure of the property may be decreed initially,  revoking it, however, if within a period of 15 (fifteen) days the registration process for the legal mortgage is not carried out. (Wording provided by Law No. 11,435 of 2006).

Injunction arrest and legitimacy

Arrest granted outright:  The mortgage specialization procedure is relatively time consuming. It is necessary to petition estimating the values ​​of damages, real estate and indicative of evidence, arbitration of values ​​by an appraiser or expert, deciding on any disputes regarding appraisals, and, only after that, officiating at the Real Estate Registry, ordering the registration of the mortgage. In the meantime, assets can be diverted, alienated, dilapidated, transferred to the name of third parties. Hence the reason for the arrest. This is a protective precautionary measure that aims to grant effectiveness to the execution. In the case of immovable property, once the preliminary attachment is granted, an order is issued to the Property Registry, prohibiting any transaction relating to the property, a court order that is recorded in the property registration.

Legitimacy:  Legitimacy to request arrest rests with the Public Prosecutor’s Office (see comments on  Article 142 ), the victim, his heirs or legal representative, and the assistant to the prosecution.

Goods of lawful origin, assessment in separate and moment

It must have lawful origin as object:  The purpose of the seizure is to become a legal mortgage, and this, in turn, has lawful origin as object. The legal mortgage is provided for in  article 1,489, item III of the Civil Code : “The law grants a mortgage to the offended person, or his heirs, on the offender’s property, to satisfy the damage caused by the crime and pay court costs  . 

Assessment in separate electronic process:  The arrest is an incident procedure. It does not suspend the criminal process. Like every incident, it must be reported separately, so as not to hinder the progress of the main process. Being electronic, it proceeds independently and in an appendix. Attachment transferred to the digital language receives the entry key through a  link . A link appears next to the main process  . Clicking on the  link opens the attached file. Link  is English word. It means connection, link. It is widely used in computing. It establishes a clickable command through word or image that allows redirection to another internet page (which may be another process).

Time to request the arrest:  The arrest can be requested both at the investigation stage and during the course of the judicial process. See  Mortgage may be required at inquiry  – Article 134.

No need to prove the danger of delay

No need to demonstrate the  periculum in mora :  In order to grant the specialization of the legal mortgage, article 134 only requires  certainty of the infraction and sufficient evidence of authorship . No mention is made of the need to prove the danger of delay, so this proof is not required. The same is required for granting the seizure, only the certainty of the infraction and sufficient evidence of authorship. See  No need to demonstrate periculum in mora  – article 134. 

Family property, appeal and writ of mandamus

Family property:  Pursuant to  article 3, item VI of Law no. 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.

Appeal and writ of mandamus:  Against the decision granting or rejecting the attachment request, 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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