Código de Processo Penal Comentado | Flavio Meirelles Medeiros

Article 141º CPP – Acquittal and withdrawal of the arrest and mortgage.

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Art. 141. The arrest will be lifted or the mortgage canceled, if, by an unappealable sentence, the defendant is acquitted or judged to have extinguished the punishment. (Wording provided by Law No. 11,435 of 2006).

Lifting the arrest or cancellation of the mortgage and the civil action

Lifting and civil action:  Lifting the arrest or canceling the mortgage does not preclude civil action. If the withdrawal or cancellation is due to acquittal, the possibility of seeking compensation in civil action depends on the basis of the decision (see comments to  article 66 ). The following do not also prevent the filing of a civil action: 1) the decision to archive the investigation or the pieces of information; 2) the decision that deems the punishment extinct.

Extinction of punishment, acquittal, rejection of the complaint and filing

Extinction of punishment:  If the punishment is deemed to be extinguished, the arrest will be lifted or the mortgage cancelled. And immediately. It will not be necessary to wait for the final decision. It is because the appeal in the strict sense against the decision that decrees the extinction of punishment ( article 581, item VIII of the CPP ) does not have suspensive effect ( article 584 of the CPP ).

Acquittal:  If the accused is acquitted, the arrest will be lifted or the mortgage cancelled. And right away. It will not be necessary to wait for the final decision. The prosecution’s appeal does not have suspensive effect (see  article 386, sole paragraph of the CPP ).

Rejection of the complaint:  If the complaint is not received, the arrest will be lifted or the mortgage cancelled. It will not be necessary to wait for the final decision. The appeal in the strict sense against the decision that does not receive the complaint ( article 581, item I of the CPP ) does not have suspensive effect ( article 584 of the CPP ).

Shelving of the investigation:  With the shelving of the investigation, the arrest and the mortgage lose their raison d’être (compensation of the victim and/or loss in favor of the Union at the end of the criminal process), which is why their withdrawal is justified.

Precaution in civil jurisdiction

Precautionary measure in civil jurisdiction:  In view of indications of the proximity of the lifting of the attachment or cancellation of the mortgage in the criminal proceeding, there is no impediment, on the contrary, it is advisable that the injured party anticipates and requests precautionary measure in the civil court, aiming to maintain the constraint of the well arrested or kidnapped, thus ensuring their right to reparation. The death of the accused, for example, implies extinction of punishment, and the guarantee in criminal jurisdiction. However, the responsibility of the estate persists. By means of a precautionary measure, the injured party may maintain the unavailability of the seized assets, this time by order of the civil jurisdiction, where a civil action for compensation for damages must be filed (if it is not already in progress

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