Art. 127. The judge, ex officio, at the request of the Public Prosecutor’s Office or the victim, or upon representation of the police authority, may order the kidnapping, at any stage of the process or even before the denouncement or complaint is filed.
The request for kidnapping made to the judge
Competence of the judge: Only the judge has competence to issue a kidnapping order, which can be done at the request of the Public Prosecutor’s Office, the victim, or upon representation of the police authority. The application must be recorded, decided and processed separately (article 129).
Time: At any stage of the process, or even before the complaint or complaint is filed.
Prosecution assistant: May request kidnapping. The doctrine, unanimously, rightly, argues that there is no way to disallow the assistant from requesting the kidnapping, since it aims at compensating the offended party. Renato Brasileiro, without leaving close range, goes further , saying that it is Article 127 itself that authorizes the assistant to request the kidnapping, since he is none other than the offended person qualified in the process. Perfect.
Public Ministry and the victim who is not poor: If the victim is not poor, does the Public Prosecutor still have the duty to pursue goods acquired with the proceeds of the infraction? There is understanding in the sense that the Public Prosecutor’s Office should only act when the offended party is poor. This is an incorrect position. Pursuing the outcome of the crime is not just a matter of restoring values and recovering damages. It’s more than that. It concerns criminal policy. Crime cannot generate gains, incentives, advantages. Criminal policy means confiscated proceeds and benefits of the offense, duty of criminal prosecution. This is how crime is fought, especially organized crime, whose nucleus is not people, but financial capital. Or another type of crime: victim of theft who is afraid of suffering retaliation if he seeks compensation for the damage suffered. Will the MP leave her to her fears just because she is not poor? Added to this is the circumstance that, by legal determination, the proceeds of crime must be confiscated: “The effects of the conviction are: the loss in favor of the Federal Government of the proceeds of crime or of any asset or value that constitutes profit earned by the agent with the practice of the criminal act” (article 91, item II, letter “b”, of the Penal Code ). If the criminal law provides for the loss in favor of the Union of the proceeds of the crime or of any asset or value that constitutes profit earned by the agent with the commission of the criminal act, it is the duty of the State to pursue these assets and values. Criminal action constitutes the MP’s power/duty.
Illegitimacy of the co-defendant to file a precautionary measure for the seizure of assets of the other co-defendants: The co-defendant – participant or co-author – who had his assets seized in the context of a complaint for a crime that results in damage to the Public Treasury (Decree-Law 3.240/1941) does not has legitimacy to postulate the extension of the constriction to the other co-defendants, even if the Public Prosecutor’s Office has handled a precautionary measure of seizure of assets only in relation to that one (STJ, RMS 48.619-RS, Reporting Min. Maria Thereza de Assis Moura, judged on 15 /9/2015, DJe 9/30/2015 – Newsletter 570).