Código de Processo Penal Comentado | Flavio Meirelles Medeiros

Article 121 CPP – Thing acquired with the proceeds of the infraction.

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Art. 121. In the case of seizure of thing acquired with the proceeds of the  infraction, the provisions of article 133 and its paragraph shall apply.

Values ​​incompatible with the income and destination of the thing acquired with the proceeds of the infraction

Loss of amounts incompatible with income: According to article 91-A of the CP, on conviction for offenses with a maximum penalty of more than six years of imprisonment, the loss, as a proceeds or benefit of the crime, of assets corresponding to the difference between the value of the condemned person’s assets and that which is compatible with their lawful income may be decreed . The convict is allowed to demonstrate the non-existence of incompatibility or the lawful origin of the property. The loss must be expressly requested by the Public Prosecutor’s Office, when the complaint is filed, with an indication of the difference found. There is no unconstitutionality in this provision. In this case, there is no reversal of the burden of proof, since the law requires proof of the incompatibility between assets and income, that is, it is up to the prosecution to provide this proof. The accused has nothing to prove. The accusation is that he needs to prove it. It’s not about confiscation.

Destination of the thing acquired with the proceeds of the infraction:  A thing acquired with the proceeds of the infraction is subject to seizure (Articles 125 and 132), not  seizure , as mistakenly stated in the provision. The apprehension is used to capture the instruments and proceeds of the crime. To clarify, the proceeds of crime are stolen money; thing acquired with the proceeds of the infraction is the cell phone bought with the stolen money. Once the conviction becomes final, the judge, ex officio or at the request of the interested party, will determine the evaluation and sale of the proceeds of the infraction in a public auction. Of the money collected, the National Treasury will collect what does not fit the injured party or a third party in good faith.

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