Código de Processo Penal Comentado | Flavio Meirelles Medeiros

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Art. 125. The seizure of real estate, acquired by the  defendant with the proceeds of the infraction, will be up to the seizure, even if they have already been transferred to a third party.

Purposes, safety measures, moments

Purpose of the injunctive measures:  The incidental precautionary procedures restricting property and financial assets that fall on the defendant/accused are intended to reimburse the damage suffered by the victim of the crime, the payment of the costs of the process and any pecuniary penalties. But not just that. More than that. They aim to prevent criminality from resulting in profitable activity. Proceeds from the offense are confiscated. They constitute a way of combating crime, especially that in an organized way. The nucleus of the criminal organization is not so much in its leaders, but more in its finances, in its capital. Leads can be easily replaced. Capital, once suppressed, undermines the organization, making it difficult to restructure.

Three security measures:  There are three security measures regulated in this Chapter of the CPP: (1) kidnapping; (2) legal mortgage; (3) arrest.

Moments in which the kidnapping can be determined:  The kidnapping can be determined both after the complaint has been filed and before, when the procedure is at the stage of the police investigation ( article 127 ).

Jurisprudence

Usurpation of competence: The civil or labor court that practices the expropriation of property seized in the criminal sphere incurs in usurpation of competence ( CC 175.033-GO , Judge Sebastião Reis Júnior, Third Section, unanimously, judged on 05/26/ 2021, DJe 05/31/2021).

Kidnapping, search and seizure, movable and immovable property, bona fide third party

Kidnapping and search and seizure:  Kidnapping aims to seize goods acquired with the proceeds of the offense (example: kidnapping of cell phones acquired with the theft of money). Search and seizure is the possession of the proceeds and instruments of the crime ( Article 240, paragraph 1, letters “b”, “c” and “d” ). Giving examples: the proceeds of the crime is the stolen money, and the instrument of the crime, the knife used to threaten the victim when the money is stolen.

Seizure of furniture and real estate:  Seizure can fall on both real estate, which is the subject of this device, and furniture (Article 132).

Third party in good faith:  The rule established in article 125 is: the seizure of real estate will be up to, even if they have already been transferred to a third party. If the third party is in good faith, and the assets have been transferred to him for consideration, he may file an embargo based on  article 130 . 

Kidnapping and lawfully acquired property

Seizure of assets lawfully acquired by the defendant/accused:  This provision authorizes the seizure of only those assets acquired with the proceeds of the infraction. It is worth mentioning that kidnapping is a measure whose purpose is to pursue illicitly acquired goods. However, the lawful assets of the indicted/accused are not immune from prosecution. Law  nº 12.694, of 2012 , introduced  paragraphs 1 and 2 to article 91 of the Penal Code , and, in the words of these two paragraphs, in the case of confiscation as an effect of the conviction, the “loss of assets or equivalent values to the proceeds or profit of the crime when these are not found or when they are located abroad . In this case, “procedural security measures may cover assets or equivalent values ​​of the investigated or accused for subsequent confiscation  . There is no limitation of the security measures to illicit assets. To be confirmed, article 134 of the CPP, by which the request for specialization of a legal mortgage on the defendant’s/accused’s properties on properties lawfully acquired by him is provided, since the CC “confers a mortgage to the offended party, or to his heirs, on the delinquent’s properties, to cover the damage caused by the crime and pay court costs” (article 1489, item III, of the CC); and, furthermore, article 137 of the CPP, which authorizes the seizure of movable property (lawfully acquired) subject to attachment.

Privileged kidnapping in favor of the Public Treasury

Privileged kidnapping in favor of the Public Treasury:  When the party injured by the crime is the Public Treasury, the kidnapping, under the terms of paragraph 4 of Decree-law n. 3,240/41, “may fall on all the assets of the accused”. There is, therefore, a privilege in favor of the Public Treasury. While the kidnapping regulated by the CPP only applies to assets lawfully acquired by the accused when the proceeds or proceeds of the crime are not found or when they are located abroad, in the kidnapping in favor of the Treasury this precondition is not required.

Kidnapping, laundering, drugs and family welfare

Laundering crimes and securing measures aimed at repairing previous crimes:  Law  n. 9.613/1998, in its article 4, paragraph 4,  provides that the judge may enact “securative measures on goods, rights or values ​​to repair damage resulting from the previous criminal offense or that provided for in this Law or for payment of a pecuniary benefit, fine and costs”. As can be seen, in the process of these crimes, the protective measures reach the antecedent crime.

Law on Drugs:  In  article 60, Law n. 11.343/2006  establishes that the judge may decree the seizure and other security measures related to movable and immovable property or values ​​consistent with the proceeds of the crimes provided for in this Law, or that constitute profit gained from their practice.

Family property:  The unseizability of family property is not enforceable when acquired with the proceeds of crime ( article 3, item VI of Law n. 8.009/1990 ).

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