Código de Processo Penal Comentado | Flavio Meirelles Medeiros

Article 126º CPP – Requirements for kidnapping.

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Art. 126. For the seizure to be decreed, the existence of  vehement evidence of the illicit origin of the assets will suffice.

Indications of the illicit origin of the assets for the kidnapping

Vigorous indications of the illicit origin of the goods:  Indication is the demonstrated, proven circumstance. It is a fact that suggests that another, or is occurring, or has occurred, or will occur. On the meaning of evidence, see the heading  Evidence and evidence  in notes to article 239. It is not enough for evidence of illicit origin of goods to be admissible, plausible, credible. They need to be vehement, strong, intense, relevant, which does not mean that full, perfect and irrefutable proof is required. It may seem strange that, in order to arrest people cautiously, sufficient evidence is  enough  (preventive arrest –  article 312 of the CPP ), and that, in order to kidnap things,  vehement evidence is needed. But there is an explanation for this apparent disproportion. In preventive detention, there is a need for arrest, either to guarantee public order, or for the convenience of criminal instruction, or to ensure the application of criminal law. In the case of kidnapping, the property is not committing new crimes, disturbing instruction or running away. In preventive, the accused is – or should be.


Kidnapping precaution. Granting of the request without prior notification of the defense:  The granting of a patrimonial precautionary measure of kidnapping without prior notification of the defense does not entail nullity ( RMS 30.172-MT, Justice Maria Thereza de Assis Moura, judged on 12/4/2012 – Newsletter No. 0513 ).

Possibility of confiscation of valuables seized as a result of drug trafficking : It is possible to confiscate any and all assets of economic value seized as a result of drug trafficking, without the need to inquire into habituality, reiteration of the use of the asset for such purpose, its modification to make it difficult to discover the place where the drug is stored or any other requirement beyond those expressly provided for in art. 243, sole paragraph, of the Federal Constitution ( RE 638.491 RG – Theme 647 rel. min. Luiz Fux Plenary DJE of 23-8-2017 STF Newsletter 865 ).

Security measures and lack of need to demonstrate acts of asset dissipation:  The danger of delay is inherent to criminal security measures, and it is unnecessary to demonstrate concrete acts of asset dissipation by the accused ( Pet 7.069 AgR, rel. p / o ac. min. Roberto Barroso, DJE of 9-5-2019 ).


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