Art. 120. Restitution, when applicable, may be ordered by the police authority or judge, by means of a term in the file, provided that there is no doubt as to the claimant’s right.
§ 1. If this right is doubtful, the refund request will be filed separately, with the applicant signing a period of 5 (five) days for proof. In such a case, only the criminal judge can decide the incident.
§ 2 he incident will also be filed separately and only the judicial authority will resolve it, if the things are seized in the possession of a third party in good faith, who will be summoned to claim and prove their right, within an equal and successive to that of the claimant, having one and the other two days to reason.
§ 3 Public Prosecutor’s Office will always be consulted on the request for restitution.
§ 4 In case of doubt as to who the real owner is, the judge will refer the parties to the civil court, ordering the deposit of the things in the hands of the depositary or the third party that held them, if he is a suitable person.
§ 5 In the case of easily deteriorated things, they will be evaluated and taken to public auction, depositing the money collected, or delivered to the third party that held them, if this is a suitable person and signs a term of responsibility.
Term of refund and refund incident
Term of restitution: In view of the request for restitution made to the police or judicial authority, if there is no doubt as to the right of the claimant, the restitution may be ordered by posting a simple term of restitution in the records of the investigation or proceeding.
Restitution incident: In case of doubt, the police authority is not authorized to decide. The restitution request must be made in court, where it is filed in a separate section, receiving the name of restitution incident. The applicant is granted a period of five days to prove his right.
Third party in good faith and hearing of the parties
Good faith third party: If things are seized in the possession of a good faith third party, also in this case the incident must be reported separately, and only the judge can decide. The claimant has a period of five days to prove his right. Then, the same period is granted to the bona fide third party. In continuation, one and the other, successively, have two days to reason.
The Public Prosecutor’s Office and the defense must be heard: Although paragraph 3 refers only to the Public Prosecutor’s Office, it is obvious that the defense must also be heard, regarding any and all requests for restitution. In restitution, objects of the process are removed, which may constitute proof of the interest of both the prosecution and the defense. Restitution without the hearing of both parties may imply nullity of the process.
Probationary delay and easily damaged things
When ample probative delay is required: When the trial of the restitution incident requires ample probative delay, the records must be sent to the civil court. It is not up to the criminal court, which already has the burden of prosecuting and judging the accused, to be in charge of yet another parallel procedure dealing with property issues and/or related to possession. If it is necessary to produce testimonial or expert evidence, take depositions from the parties, and so on, it is better to let the instruction be made by the civil court. This is the reason why paragraph 4 of article 120 recommends that, in case of doubt as to who the real owner is, the judge will refer the parties to the civil court, ordering the deposit of the things in the hands of the depositary or the third party that held them. , if you are a suitable person.
Easily damageable things: In the case of easily damageable things, they must be taken to auction, depositing the money collected in a financial agent (bank). Article 120 mentions handing over the money to a third party that held the objects. This recommendation is no longer in use, since he will necessarily have to deposit the amounts in a bank institution for them to be monetarily corrected. It is more logical to deposit directly with the institution.
Appeal and writ of mandamus
Appeal: Against the decision that judges the incident of restitution, granting or not the request, it is possible to appeal based on article 593, item II , within a period of five days. According to this provision, an appeal against final decisions or those with final force is allowed. The problem with the appeal is that, in many cases, it will prove, even if upheld, useless. The reason for this is that the appeal does not have suspensive effect. There is a solution to the problem. It’s the warrant.
Writ of Mandamus: According to Law n. 12.016/2009, article 5, item II , a writ of mandamus is not granted in the case of a decision against which there is an appeal with suspensive effect. Now, if the norm says that a writ of mandamus is not granted against a decision that has an appeal with suspensive effect, it is because a writ of mandamus is admitted against a decision that does not have an appeal with suspensive effect (opposite interpretation). In the decision dealing with the restitution of things and objects, if there is a violation of clear and certain rights, illegality or abuse of power, a writ of mandamus is applicable. Precedent 267 of the STF, when stating that “there is no writ of mandamus against a judicial act subject to appeal or correction”, is outdated, since it was edited before Law n. 12.016/2009 ( see jurisprudence after publication of the Precedent). On the subject, the following decision: “That is why this Supreme Court, by highlighting the knowability of the writ of mandamus filed against judicial decisions, has recognized, for a long time, that the constitutional ‘writ’ will have full admissibility, even that exceptionally, provided that, characterized as a situation of irreparable damage (or difficult to repair), the applicable appeal does not have suspensive effect: (…) suspensive effect, has always had, as mentioned, the approval of the jurisprudence of the Federal Supreme Court (…). Such jurisprudential guidance, in turn, came to be formally posited in a normative text now inscribed in art. 5, item II, of Law No. 12.016/2009″ (Minister Celso de Mello – STF – RMS 26265 AgR ). See title Writ of mandamus and habeas corpus in comments to article 581.
Restricted assets, rights or values and appeal: It is possible to lodge an appeal, based on article 593, II, of the CPP, against a decision that has determined a security measure provided for in art. 4, caput, of Law no. 9.613/1998 (Money Laundering Law), despite the possibility of direct application to the constricting judge aiming at the total or partial release of the constrained assets, rights or values (art. 4, §§ 2 and 3, of the same Law) ( REsp 1.585.781-RS, Reporting Justice Felix Fischer, judged on 6/28/2016, DJe 8/1/2016 – Newsletter n. 587 ).