Código de Processo Penal Comentado | Flavio Meirelles Medeiros

Article 119 CPP – Things that cannot be refunded.

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Art. 119. The things referred to in articles 74 and 100 of the Penal Code  cannot be returned, even after the final judgment becomes final, unless they belong to the injured party or to a third party in good faith.

They cannot be refunded even after the final judgment has become final.

Things that cannot be refunded:  Article 74 was replaced, with the 1984 reform ( Law n. 7.209/84 ), by  article 91 of the Penal Code. Pursuant to this provision, the effect of the sentence is the loss in favor of the Federal Government, with the exception of the right of the injured party or of a third party in good faith: (1) of the instruments of the crime, provided that they consist of things whose manufacture, disposal, use, carrying or detention constitutes an unlawful act; (2) the proceeds of the crime or any asset or value that constitutes profit earned by the agent with the commission of the criminal act. Instruments of crime are the objects used to commit the crime, such as, for example, the equipment used to manufacture counterfeit currency. The proceeds of crime are, for example, money or a stolen bicycle. An asset or value that constitutes profit earned by the agent with the commission of the criminal act is, for example, the cell phone purchased with stolen money, or the money obtained from the sale of the stolen cell phone.

Meaning of final judgment:  On the meaning of the expression “final judgment” contained in this Article 119, see subheading  Meaning of Final Judgment , in the title Cannot be refunded as long as they are of interest to the process , in comments to Article 118.

Disarmament Statute:  As provided by the Disarmament Statute ( Law n. 10.826/2003 ), in article 25, the seized firearms, after the preparation of the expert report and its attachment to the file, when they are no longer of interest to criminal prosecution, will be forwarded by the competent judge to the Army Command, within a maximum period of 48 hours, for destruction or donation to public security agencies or the Armed Forces, pursuant to the regulation of this Law. 

Includes contraventions:  Article 91 refers to the loss in favor of the Union of “crime” instruments and proceeds. Because there is no reference to the  misdemeanor , there are those who maintain that the loss does not apply to it. With no reason. In the most diverse devices of the adjective and material criminal laws, the expression “crime” is invariably used to cover both crime and misdemeanor. For example: “Whoever, in any way, contributes to the crime is subject to the penalties imposed on him, to the extent of his culpability” (article 29 of the CP).


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