Delegados de Polícia não só podem como devem fixar fiança nos casos de Violência Doméstica

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Por Rômulo de Andrade Moreira – 03/01/2016

Faz muito tempo que nem tudo aquilo que acompanhamos com a consciência de nossa liberdade é realmente consequência de uma decisão livre. Fatores inconscientes, compulsões e interesses não dirigem apenas nosso comportamento, mas também determinam nossa consciência.” (Hans-Georg Gadamer, Hermenêutica da Obra de Arte. Trad. Marco Antonio Casanova. São Paulo: Martins Fontes, 2010, p. 49-50).

A Comissão Permanente de Combate à Violência Doméstica e Familiar contra a Mulher, órgão integrante do Grupo Nacional de Direitos Humanos do Conselho Nacional de Procuradores Gerais de Justiça, tem editado alguns enunciados, entre os quais um chamou em especial a nossa atenção: trata-se do Enunciado nº. 6, com o seguinte teor: “Nos casos de violência doméstica e familiar contra a mulher, criança, adolescente, idosa, enfermo ou pessoa com deficiência, é vedada a concessão de fiança pela Autoridade Policial, considerando tratar-se de situação que autoriza a decretação da prisão preventiva nos termos do artigo 313, III, Código de Processo Penal.” (aqui).

O equívoco do verbete é gritante, dada a sua clara ilegalidade (porque contraria a Lei nº 12.403/11, que alterou o Código de Processo Penal) e também a sua inconstitucionalidade formal (porque, e sobretudo, viola a Constituição Federal), senão vejamos:

Dispõe o art. 322 do Código de Processo Penal que o Delegado de Polícia poderá (e se trata de um poder-dever) conceder fiança nos casos de infração penal cuja pena privativa de liberdade máxima não seja superior a quatro anos, sendo que, nos demais casos, a fiança será requerida ao juiz, que decidirá em quarenta e oito horas (redação dada pela Lei nº 12.403, de 2011). Pouco importa para a lei processual penal a condição pessoal da vítima ou as circunstâncias em que se deu o suposto fato delituoso. A lei não fez nenhum tipo de distinção ou nenhuma outra exigência senão o requisito da pena máxima.

Obviamente que um mero Enunciado do Conselho Nacional de Procuradores Gerais de Justiça, por mais autorizado que esteja, não tem, na República, ainda, o condão de alterar um texto de lei formal e legitimamente aprovada pelo Congresso Nacional e promulgada pela Presidente da República, ambos legitimados pela soberania popular, o que falta aos Procuradores Gerais de Justiça, ao menos de forma direta.

Outra disposição olvidada pelos senhores Procuradores Gerais, lamentavelmente, foi o art. 22 da Constituição Federal, segundo o qual compete privativamente à União legislar sobre, dentre outras matérias, Direito Penal e Processual (incluindo Processo Penal, obviamente). Ora, o Enunciado claramente viola esta cláusula constitucional que reserva à União a iniciativa legislativa em matéria processual penal, como é o caso de uma disposição que trata de fiança, uma medida de natureza cautelar (ou de contracautela, como querem alguns).

Ademais, a Constituição Federal, ao estabelecer no art. 144, que “a segurança pública é um dever do Estado, direito e responsabilidade de todos e será exercida para a preservação da ordem pública e da incolumidade das pessoas e do patrimônio”, dá às Polícias federal e civil legitimidade constitucional para exercer as suas atribuições na República, cabendo à primeira exercer, com exclusividade, as funções de polícia judiciária da União e à segunda as funções de polícia judiciária e a apuração de infrações penais, exceto as militares.

Logo, é inconcebível que o Conselho Nacional de Procuradores Gerais de Justiça queira se imiscuir em atividade legislativa especialmente reservada à União, tolhendo, ademais, a autonomia constitucional da Polícia. Neste sentido, conferir no Supremo Tribunal Federal a decisão proferida no julgamento do Habeas Corpus nº. 125.768, relator Ministro Dias Toffoli.

E mais. Vejamos o absurdo do Enunciado em casos práticos.

Suponhamos que um homem em uma sexta-feira, em uma praça pública, discuta com um adolescente e o ameace (art. 147 do Código Penal. Pena máxima: seis meses. Crime de menor potencial ofensivo, cuja ação penal depende de representação). Levado à presença de um Delegado de Polícia, lavra-se o Termo Circunstanciado, na forma do art. 69 da Lei nº. 9.099/95, recusando-se o “autor do fato” (como equivocadamente denomina a Lei dos Juizados Especiais Criminais, como se o sujeito já tivesse sido condenado por sentença transitada em julgado) a assinar o termo de compromisso de comparecer à audiência preliminar de conciliação (composição civil dos danos e transação penal). O que diz o referido art. 69 da lei de regência? Como ele não se comprometeu a comparecer à audiência, quando notificado, lavrar-se-á o auto de prisão em flagrante, pois assim autorizou o representante legal do suposto ofendido, oferecendo a representação nos termos do art. 38 do Código de Processo Penal. Então, poderia o Delegado de Polícia arbitrar a fiança? Conforme o art. 322 do Código de Processo Penal sim, pois a pena máxima do crime de ameaça não é maior do que quatro anos, mas segundo o enunciado acima transcrito, não!

Relembremos, para não haver dúvidas, a redação do artigo da lei especial: “Art. 69. A autoridade policial que tomar conhecimento da ocorrência lavrará termo circunstanciado e o encaminhará imediatamente ao Juizado, com o autor do fato e a vítima, providenciando-se as requisições dos exames periciais necessáriosParágrafo único. Ao autor do fato que, após a lavratura do termo, for imediatamente encaminhado ao juizado ou assumir o compromisso de a ele comparecer, não se imporá prisão em flagrante, nem se exigirá fiança. Em caso de violência doméstica, o juiz poderá determinar, como medida de cautela, seu afastamento do lar, domicílio ou local de convivência com a vítima.”

Portanto, caso o “autor do fato” não possa ser encaminhado imediatamente ao Juizado Especial Criminal (como nunca poderá, salvo nos estádios de futebol), nem afirme que comparecerá para qualquer tipo de acordo (pois não lhe é conveniente fazê-lo, por exemplo), o Delegado de Polícia não poderá arbitrar a fiança, nada obstante o art. 322 do Código de Processo Penal autorizá-lo. Ele ficará preso aguardando que se faça um requerimento formal a um Juiz de Direito, nada obstante se tratar de um crime de menor potencial ofensivo (art. 98, I da Constituição Federal). Como é uma sexta-feira, caso o fato tenha ocorrido em uma cidade do interior do Brasil, certamente ele aguardará até segunda-feira para ter o seu pedido analisado (pois não haverá plantão judiciário), salvo se o Magistrado não teve nenhum compromisso particular na Capital, caso em que ele só chegará na Comarca na terça-feira. Se ele for um homem desventurado e na Comarca não houver Juiz titular, ele deverá escrever uma carta aos senhores Procuradores Gerais pedindo uma ajuda, uma orientação para o seu caso.

Refere-se o Enunciado, outrossim, como se fosse algo que pudesse impedir o arbitramento da fiança pelo Delegado de Polícia, à possibilidade de decretação da prisão preventiva, se o crime envolver violência doméstica e familiar contra a mulher, criança, adolescente, idoso, enfermo ou pessoa com deficiência, para garantir a execução das medidas protetivas de urgência, nos termos do art. 313, III, do Código de Processo Penal (com redação dada pela Lei nº. 12.403, de 2011).

Aqui confundiu-se (?) alhos com bugalhos! O fato de, em tese, ser possível a decretação da prisão preventiva não pode e não deve inviabilizar o arbitramento de uma fiança. A lei não disse isso. Logo, um Enunciado do Conselho Nacional de Procuradores Gerais de Justiça não poderá dizê-lo. Nunca! Isso é primário. É o Juiz que deve decidir ser o caso de prisão preventiva e, fundamentadamente, decretá-la, não de ofício, porque está vedado por lei, mas a requerimento do Ministério Público ou por representação do Delegado de Polícia.

É bem verdade que o art. 324 do Código estabelece não ser cabível a fiança quando presentes os motivos que autorizam a decretação da prisão preventiva, nos termos do art. 312. Ora, mas não é o Delegado de Polícia, no momento de uma prisão em flagrante, quando da lavratura do respectivo auto de prisão, que poderá afirmar ser o caso ou não de uma prisão provisória. Ele não tem, constitucionalmente, tal atribuição, nem o Ministério Público, aliás. O Juiz é que o dirá, posteriormente, quando lhe for enviada a cópia do auto de prisão em flagrante com a representação ou o requerimento da medida cautelar. Assim dispõe o art. 310 do Código de Processo Penal. Agora cabe ao Delegado de Polícia, tão-somente, à vista da pena abstratamente cominada ao delito arbitrar a fiança, independentemente, repita-se, da condição pessoal da vítima ou das circunstâncias em que foi praticado o crime. Se não o fizer, estará sujeito a responder pelo crime de abuso de autoridade previsto no art. 4º., letra “e” da Lei nº. 4.898/65.

Que me perdoem os meus colegas Procuradores de Justiça, ora Procuradores Gerais. Não é assim que se faz um Enunciado. É preciso atenção no momento de elaborar estas normas. Estudar, conversar detidamente com os assessores, sem açodamento, com calma, discutindo com os diversos atores processuais e não processuais e, sobretudo, ter sempre às mãos a Constituição Federal. É fundamental.

 

Fonte: Empório do Direito

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