Código de Processo Penal Comentado | Flavio Meirelles Medeiros

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Art. 142. It will be up to the Public Prosecutor’s Office to promote the measures established in articles 134 and 137, if there is interest from the Public Treasury, or if the victim is poor and requests it.

Treasury interest, arrest, mortgage and MP

Interest of the Treasury, attachment, mortgage and MP:  The thesis has been supported that, with the advent of the CF of 1988, which, in its  article 129, item IX of the CF ,  prohibits the judicial representation of public entities to the MP , the possibility of this institution to apply for seizure or mortgage was not accepted when there is interest from the Public Treasury, since, by doing so, it would be  representing in court the farm. The prohibition of the Constitution of the Republic seems clear. But this apparent transparency does not convince us. When the MP acts enclosed within the limits of the criminal process, pursuing the mortgage guarantee (not in the civil execution, outside the criminal process), with values ​​equivalent to the proceeds of the crime, and which were diverted, his activity is included in the scope of the criminal prosecution . Carrying out effective criminal prosecution does not only mean complying with certain rites or procedures of procedural laws, but seeking to achieve the purposes of criminal law, including general prevention. There is no need to talk about the effective fulfillment of the purposes of criminal law, if the convict is privileged, with amounts diverted, defrauded, with advantage, immune. If criminal prosecution were to go hand in hand with deceit, when it comes to public property, it would be a scam, a pantomime, a hoax. If prosecution allows the offense to generate benefits, the offense will generate more offenses, and prosecution will not do its job. The mortgage and seizure sought by the MP, when there is interest from the Public Treasury, are not aimed at enriching the Treasury, not at the immediate and financial interest of the public coffers (this is resolved with the assistance of the prosecution), but rather at carrying out the purposes of criminal law and criminal prosecution. Evidently, the settlement, at a later time, will be the responsibility of the Treasury, by its attorneys, the Treasury Attorney, the State Attorney or the Municipal Attorney. the crime will generate more crimes, and the prosecution will not fulfill its role. The mortgage and seizure sought by the MP, when there is interest from the Public Treasury, are not aimed at enriching the Treasury, not at the immediate and financial interest of the public coffers (this is resolved with the assistance of the prosecution), but rather at carrying out the purposes of criminal law and criminal prosecution. Evidently, the settlement, at a later time, will be the responsibility of the Treasury, by its attorneys, the Treasury Attorney, the State Attorney or the Municipal Attorney. the crime will generate more crimes, and the prosecution will not fulfill its role. The mortgage and seizure sought by the MP, when there is interest from the Public Treasury, are not aimed at enriching the Treasury, not at the immediate and financial interest of the public coffers (this is resolved with the assistance of the prosecution), but rather at carrying out the purposes of criminal law and criminal prosecution. Evidently, the settlement, at a later time, will be the responsibility of the Treasury, by its attorneys, the Treasury Attorney, the State Attorney or the Municipal Attorney. not the immediate and financial interest of the public coffers (this is resolved with the assistance of the prosecution), but rather the achievement of the purposes of Criminal Law and criminal prosecution. Evidently, the settlement, at a later time, will be the responsibility of the Treasury, by its attorneys, the Treasury Attorney, the State Attorney or the Municipal Attorney. not the immediate and financial interest of the public coffers (this is resolved with the assistance of the prosecution), but rather the achievement of the purposes of Criminal Law and criminal prosecution. Evidently, the settlement, at a later time, will be the responsibility of the Treasury, by its attorneys, the Treasury Attorney, the State Attorney or the Municipal Attorney. 

Offended poor, arrest, mortgage and MP:  Article 134 of the  Federal Constitution establishes that the  Public Defender’s Office is a permanent institution, incumbent on the judicial and extrajudicial defense of individual and collective rights, integrally and free of charge, to those in need, in the form of  item LXXIV of article 5 of this Federal Constitution l.  Complementary Law  n. 80, of January 12, 1994 , organizes the Public Defender’s Office of the Union, the Federal District and the Territories and prescribes general norms for its organization in the States. Article 3-A of that law deals with the objectives of the Public Defender’s Office. Article  4 it deals with institutional functions, among which is that of providing legal guidance and exercising the defense of the needy, at all levels. Despite the fact that, according to the constitutional norm, the Public Defender’s Office is responsible for defending the needy, we understand that this circumstance does not remove from the Public Prosecutor’s Office its right/duty to request an arrest or mortgage in favor of the offended poor. And for exactly the same reasons that we explained in the title  Interest of the Treasury, arrest, mortgage and MP  above, that is, its activity is included in the scope of the concept of criminal prosecution.

In a nutshell:  The ordinary legislator ultimately wanted to give greater effectiveness and breadth to the concept of criminal prosecution, in which he envisioned greater public interest. In defense of the heritage of those who have little or almost nothing, and in defense of what belongs to the entire community. There are ethical and moral aspects involved in this choice, and we do not see a collision between this expansion of the criminal prosecution power and the constitutional rights of representation of the Public Defender’s Office and the Public Treasury, not least because the measures of arrest and mortgage are precautionary instruments, exceptional, of urgency, which cannot wait, otherwise they will not produce any effect.

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