(In) compatibilidade do sequestro de bens previsto no Decreto-Lei nº 3.240/1941 com as medidas assecuratórias disciplinadas no Código de Processo Penal

Abstract

In recent years, the symptomatic duration of legal proceedings, especially in Brazil, has emerged as one of the main topics of discussion in academia, primarily because, to some extent, it is one of the causes of the skepticism surrounding the Judiciary. In this context, summarization techniques have proven to be important mechanisms to, albeit temporarily, circumvent the burden arising from the natural passage of time and, likewise, ensure the useful outcome of the process. Due to its purpose, the anticipation of procedural responses is used in virtually all areas of Law, so much so that, in the criminal system, although there are some particularities, it is no different. However, the confusing treatment given by Criminal Procedural Law to provisional remedies ends up, albeit indirectly, contributing to the emergence and even preservation of completely untechnical norms, such as Decree-Law No. 3,240/1941. The regulation in question regulates of asset seizure, particularly in crimes that cause financial harm to the Public Treasury, and, according to the Superior Court of Justice, despite having been enacted before the Criminal Procedure Code itself, it is fully in force. However, the position established in the Court does not seem to align with the general clauses related to measure in question, which are laid out in the procedural norm, and even less so with certain principles inherent to the very guarantor structure of Brazilian Criminal Procedure, such as the constitutional principles of the presumption of innocence and due process of law. In light of this, the objective of this work, with a qualitative approach, was to point out some of the errors in the understanding that has been consolidated in the aforementioned Superior Court. In the end, considering the opposition of the norms involved in the dispute and the analysis of some lessons from the General Theory of Law, specifically regarding legal antinomies, it was possible to verify that the STJ engaged in a real juggling act to confer validity on a regulation that undoubtedly runs counter to the duty of consistency that must exist in any legal system.