A pretrial asset freeze in Brazilian criminal proceedings exists to secure a useful result: preserve funds for victim compensation and safeguard assets that may later be forfeited. It is necessary — but must not become punishment in advance. In our last post, we discussed the financial consequences of criminal conviction in Brazil.
Pretrial asset freeze in Brazilian criminal proceedings: what it is and when it applies
Precautionary measures protect the outcome without resolving the merits. In brief:
- Purpose 1 — Victim compensation: ensure there will be assets to satisfy damages.
- Purpose 2 — Removal of illicit gain: preserve assets tied to the product/proceeds of crime.
Any order should state the purpose, scope, and a monetary cap, and explain why no less-restrictive alternativewould suffice. (Meação/spousal share will be addressed in a separate post.)
Pretrial asset freeze: seizure (in rem)
Seizure targets the asset itself when there are strong indications that it constitutes product or proceeds of crime. Being in rem, the debate revolves around the specific asset (movable or immovable) and the minimum evidentiary link to the offense. In conflicts with civil or labor attachments, courts have recognized the primacy of criminal seizure over other liens due to its public-interest function — see this precedent on the primacy of criminal seizure. For the conceptual split between in rem seizure and in personam guarantees, see this analysis.
Attachment and legal mortgage (in personam): securing compensation
When the aim is to compensate the victim, the suitable tools are attachment (movables/monetary assets) and legal mortgage (real property). The logic is in personam: the question is not whether a given asset is criminal in origin, but whether it secures the estimated loss. Judicial orders should:
- set a monetary cap (methodology and documents supporting the figure);
- specify the assets affected and allow substitution by equivalents;
- justify necessity and proportionality.
These measures support the post-conviction phase (civil recovery) without anticipating the merits.
Equivalent-value restraints: when the proceeds “disappear”
If product/proceeds cannot be found (or are abroad), the law admits equivalent-value restraints: reaching lawful assets of the suspect up to the estimated amount of the illicit gain. Practically, this is the cautionary bridge to equivalent-value forfeiture that may follow conviction. From a defense perspective: define the amount (criteria, time frame, documentary support), tie the freeze to the facts under investigation (avoid generic sweeps), and seek periodic judicial review of scope and necessity. For practical debates on solidarity and limits in this context, see this discussion.
What precautionary measures do not do
They are not a shortcut to extended confiscation (a post-conviction effect that depends on proven incompatibility between assets and lawful income). Importing that logic into the pretrial phase undercuts the presumption of innocenceand distorts the function of precautionary measures.
Quick checklist for the defense
- Define the purpose: compensation or product/proceeds?
- Adequate evidentiary basis: strong indications for in rem seizure or documented estimate for in personamattachment/mortgage/equivalence.
- Clear monetary cap: proportionality depends on it.
- Least-restrictive means: why this measure and not a milder one?
- Specified assets with possibility of substitution.
- Periodic review as evidence evolves.
- No double recovery: align damages (compensation) and proceeds (removal) to avoid exceeding the actual loss/gain.
