Art. 131. The seizure will be lifted:
I – if the criminal action is not brought within a period of sixty days, counted from the date on which the diligence is completed;
II – if the third party, to whom the assets have been transferred, provides a guarantee that ensures the application of the provisions of article 74, II, b , second part, of the Penal Code;
III – if the criminal liability is deemed to be extinct or the defendant acquitted, by a final and unappealable sentence.
Survey of kidnapping and civil proceedings
Survey of the kidnapping: Effect of the kidnapping is the constriction of the good. Lifting is the cessation of the effect of hijacking.
Lifting and Civil Action: Lifting does not preclude civil action. If the withdrawal takes place through acquittal, the possibility of seeking compensation in a civil action depends on the grounds for the acquittal (see comments to Article 66 ). The following do not also prevent the filing of civil action: 1) order to archive the inquiry or pieces of information; 2) the decision that deems the punishment extinct.
Civil injunction: Faced with indications of the proximity of the kidnapping in the criminal process, there is no impediment, on the contrary, it is advisable that the injured party anticipates and requests a precautionary measure in the civil court, aiming to maintain the restriction of the kidnapped property, thus ensuring way, your right to reparation. The death of the accused, for example, implies extinction of punishment, and lifting of the kidnapping. However, the responsibility of the estate persists. By means of a precautionary measure, the injured party may maintain the unavailability of the seized assets, this time by order of the civil jurisdiction, where a civil action for compensation for damages must be filed (if it is not already in progress). In order to obtain a precautionary measure, the injured party must demonstrate periculum in mora and fumus boni iuris (danger of delay and smoke of good law).
Sixty-day period to propose the action
Sixty-day term: If the criminal action is not brought within a period of sixty days, counted from the date on which the due diligence is concluded, the kidnapping must be lifted. Exceptionally, if there is a justifiable reason (multiple, complex and essential steps, for example), not attributable to the Public Prosecutor’s Office (due to negligence, indifference, lack of interest or any other reason), or to the plaintiff, this period may be extended within the limits of reasonableness. In the case of immovable property, the due diligence for the purposes of starting the sixty-day period is considered completed when the registration order is delivered to the Real Estate Registry, and not on the registration date. Criminal action is considered to have been filed with the filing of the complaint, regardless of the date of receipt. If the period of sixty days is exceeded and the seizure is lifted, there is no impediment to,
Substitutive security for the kidnapping
Lifting the kidnapping by means of a guarantee: The kidnapping will be lifted if the third party, to whom the goods were transferred, provides a guarantee that ensures the application of 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 (currently the reference is to article 91, item II, letter “b” of the Penal Code ). The guarantee may be real or fidejussory. Real is the one in which a movable or immovable thing is given as guarantee, and, in fiduciary, the guarantee is personal. It can be cash deposits, precious metals, federal, state or municipal public debt securities, credit papers, mortgages and pledges.
Extinction of punishment, acquittal, rejection of the complaint and filing
Extinction of punishment: If the punishment is deemed to be extinct, the kidnapping will be lifted. And immediately. It will not be necessary to wait for the final and unappealable decision, as prescribed in item III of this device. It is because the appeal in the strict sense against the decision that decrees the extinction of punishment ( article 581, item VIII of the CPP ) does not have suspensive effect ( article 584 of the CPP ).
Acquittal: If the accused is acquitted, the kidnapping will be lifted. And immediately. It will not be necessary to wait for the final and unappealable decision, as prescribed in item III of this provision. This is because the prosecution’s appeal does not have suspensive effect (see article 386, sole paragraph of the CPP ).
Rejection of the complaint: If the complaint is not received, the kidnapping will be lifted. And immediately. It will not be necessary to wait for the final decision. The appeal in the strict sense against the decision that does not receive the complaint ( article 581, item I of the CPP ) does not have suspensive effect ( article 584 of the CPP ).
Archiving of the investigation: With the archiving of the investigation, the kidnapping loses its raison d’être (compensation of the victim and/or loss in favor of the Union at the end of the process), which is why its withdrawal is justified.
Appeal and writ of mandamus
Appeal and writ of mandamus: The decision rejecting the survey may be appealed (Article 130 of the CPP). Against the decision granting the survey, an appeal can be filed based on article 593, item II , within a period of five days. As the appeal does not have suspensive effect, the writ of mandamus is also appropriate. On appeal and injunction for these cases, see the heading Appeal and injunction in notes to article 120.
