Investigar e modernizar o inquérito: uma dupla necessidade

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Por Kel Lúcio Nascimento de Souza – 05/01/2016

As bases da investigação 

É possível sintetizar o conceito de investigação como um racional processo de pesquisa. Para que sejam obtidos os resultados buscados, é necessário seguir um roteiro preestabelecido, seja ele mental ou escrito, adaptado às peculiaridades do que se deseja apurar. A materialização de elementos indiciários exige uma concatenada execução de atos[1], formalizada, no âmbito da polícia judiciária, em um inquérito policial.

O conceito de investigação deve ser amplo, por natureza, de modo que há milhares de apurações possíveis. Essa atividade de pesquisa será qualificada a partir da condição pessoal ou profissional do explorador e do tipo de pesquisa que se deseja realizar. Não devemos associar esse permanente processo de indagação a um ritual complexo, no qual imperem fórmulas mirabolantes, mas sim a uma lógica e organizada sequência de questionamentos.

Investigações resultam da soma de experiências pessoais e profissionais do próprio investigador. Isso não quer dizer, entretanto, que o tempo de atuação profissional assegurará o sucesso da pesquisa. Bem por isso, uma rica investigação também requer do pesquisador uma adequada base conceitual e a capacidade de corretamente enquadrar a teoria à prática.

Na medida em que a investigação é uma exteriorização do pensamento humano, há pesquisas mais ou menos exitosas. Em regra, a correta definição do caminho a ser seguido (e a capacidade de segui-lo) – efetuando novas decisões com base em necessidades que eventualmente surjam – produzirão uma investigação efetiva, sendo o inverso capaz de causar fracassos. Dessa maneira, em se tratando de uma investigação criminal, a linha investigativa escolhida deve ser clara e adaptável à dinâmica dos fatos delitivos, de modo a permitir ao investigador retomar o rumo ou definir novas diretrizes.

Ao lidarmos com uma atividade de pesquisa, é essencial ter método, definir o objeto, conhecer o arcabouço normativo, determinar um plano de trabalho, ter à disposição ferramentas de análise e reanálise dos resultados, tendo-se, ao fim, um breve ciclo PDCA[2]. Investigar é uma ciência, e como bem explica Eliomar da Silva Pereira (2010, p. 61):

Embora o ponto de partida, para que possamos falar em investigação criminal científica, seja seu enquadramento em um padrão de investigação assim qualificado, não se pode nunca descuidar de que a investigação criminal é atividade desenvolvida em função de um sistema jurídico-penal que possui finalidade própria, que é a elucidação de fatos e busca da verdade a respeito de um crime (a), e limites normativos intrínsecos e anteriores, condicionantes de qualquer método de investigação pretendido (b), os quais constituem as especificidades mais marcantes dessa categoria de investigação a serem consideradas. 

O inquérito como instrumento   

Ainda que o inquérito policial necessite de aprimoramento, é ele o instrumento por meio do qual a polícia judiciária externa suas conclusões. Bem instruído e livre de atos desnecessários, tem ele possibilitado à sociedade conhecer fatos que, diga-se de passagem, vêm aprimorando a democracia, à medida que descortinam graves fatos criminosos. Não há dúvida de que a nova ordem jurídica reivindica sua modernização, sendo descabida a afirmação de que é o inquérito policial uma peça “meramente informativa”[3], ou ainda de que nele o investigado assume a posição de “simples objeto de um procedimento administrativo”[4]. Aliás, caráter “informativo” também têm vários outros procedimentos, sem que se observe, por lá, a utilização do termo de modo um tanto pejorativo.

A atual interpretação das diretrizes constitucionais e processuais penais demanda uma contemporânea forma de enxergar o inquérito policial. Também compreendido como instrumento de garantias, serve ele ao esclarecimento dos fatos e à busca da verdade. Não por outro motivo, o projeto do novo Código de Processo Penal lista uma série de garantias ao investigado, em especial, quando relacionadas ao seu indiciamento e ao seu interrogatório[5] [6].

Assim como o formalmente acusado, também tem o investigado direito a um inquérito que dure não mais que o tempo necessário à determinação de autoria e obtenção da materialidade; a uma correta – ainda que preliminar – subsunção da conduta à norma; a ser tratado como sujeito de direitos, e não como banal objeto de investigação; a requerer o que entender devido ao pleno exercício do seu direito de defesa; a buscar a paridade entre o patrocínio da defesa e o exercício do jus puniendi. Esse respeito ao investigado não só ratifica a lisura da investigação, mas realça o seu caráter democrático e imparcial.

Conciliar tempo e efetividade não é tarefa fácil. Muito se fala de investigações demoradas e do constrangimento causado pelo indiciamento, mas não são levadas em consideração as vicissitudes da norma e a pesada estrutura do estado-investigador. Em regra, encontrar o equilíbrio entre a otimização de meios e a necessidade de realizar uma investigação sem falhas requer tempo. Além disso, é oportuno destacar o tempo gasto com as análises feitas pelo judiciário e pelo ministério público, em regra não computado no total dispendido pela polícia judiciária.

No que tange à busca por melhores práticas, exercem papel fundamental as corregedorias de polícia. Ainda que tenhamos o judiciário e o ministério público em seus respectivos papeis, são as correntes análises de forma – e eventualmente de mérito –, realizadas quando da tramitação do procedimento em sede policial, as que mais rapidamente permitem a identificação dos erros cotidianos, fazendo surgir a oportunidade do reparo interno e do aperfeiçoamento de rotinas. Não têm as corregedorias apenas (como se apregoa) a função de apurar as más-condutas dos servidores, policiais ou não. Essenciais são os controles de forma, a identificação de linhas investigativas eventualmente obscuras ou equivocadas, o estabelecimento de normativos claros e que reflitam modernas práticas processuais, e por óbvio, o especial tratamento à orientação (prevenção), e não somente à punição (repressão).

Não devemos compreender o inquérito como um caderno apuratório marcado pelo excesso de formalismos, mas fato é que a atualização dos seus atos não exclui a necessidade de formalização. O registro, seja ele em papel ou em sistemas de informática, permite a auditoria do que foi feito, e sobretudo, uma reavaliação dos resultados alcançados. Esse processo de análise e reanálise é, sobretudo, importante à correção de rumos e à adequação da forma à finalidade pretendida, em um procedimento no qual se deve privilegiar o in dubio pro societate, ainda que também presente o contraditório mitigado[7].

O inquérito como direção

O principal meio pelo qual uma equipe de investigadores apresenta o resultado do seu trabalho à sociedade é pelo inquérito. Por esse procedimento de apuração, a polícia judiciária legitima seus requerimentos ao judiciário e encaminha ao ministério público o fechamento de uma investigação. Atacado de várias formas, é o inquérito um instrumento de apuração previsto no art. 4º e ss, do Código de Processo Penal.

Ainda que se tenha falado em contraditório mitigado, a condução do inquérito deve ser imparcial, dada a possibilidade de restrição de direitos. Não se presta o procedimento a perseguições ou a constrangimentos; pelo contrário. O objetivo é esclarecer com respeito às garantias legais, estabelecendo um equilíbrio entre investigação e defesa, permitindo, por exemplo, que o advogado sugira diligências que se mostrem relevantes ao amparo do investigado.

Nessa linha, está para ser integrado ao ordenamento o PLC 78/2015, que altera o Estatuto da Ordem dos Advogados do Brasil para nele inserir direitos do advogado no âmbito da investigação criminal. Se for sancionado em sua inteireza, será obrigatória a presença do defensor quando da realização de depoimentos e interrogatórios, sob pena de nulidade dos atos realizados e daqueles subsequentes[8]. Verifica-se, assim, a tendência em assegurar ao investigado direitos que o coloquem – em certa medida – com instrumentos similares àqueles do estado-investigador.

Infelizmente, o inquérito tem sido instaurado à apuração de delitos insignificantes, que não deveriam ter o condão de movimentar toda a máquina estatal. Não se vê seletividade. De uma parte, temos o ministério público fazendo, em algumas ocasiões, mau uso do seu poder de requisição, o que acaba por afastar a polícia judiciária da apuração de delitos graves. De outra, falham as corregedorias, que poderiam exercer um juízo mais apurado no diagnóstico das noticías-crime e das próprias requisições, impedindo o início de investigações natimortas.

Importante é não banalizar a ferramenta. Devemos lembrar que ela tem um alto custo ao estado, na medida em que demanda – e de certa forma obriga – o emprego de recursos financeiros e humanos. Ainda que voltado à apuração de fatos, a instauração de um inquérito pode causar ligeiro constrangimento, mesmo não resultando em indiciamentos ou no cumprimento de ordens judiciais. Alçado então à condição de investigado, ostenta o indivíduo uma posição desconfortável, que exige de si uma postura mais atenta.

A modernização deste procedimento deve, sem hesitação, abarcar o respeito ao exercício do direito de defesa do investigado e a eliminação de atos cartoriais desnecessários. É urgente torná-lo ágil, leve, de maneira que seja transformado em expediente menos burocrático, no sentido comum do vocábulo. As modificações normativo-processuais feitas ao longo dos últimos anos devem reverberar no âmbito do inquérito, atualizando-o, legitimando-o, levando-o ao aperfeiçoamento.

Vale apontar a colocação feita por Fauzi Hassan Choukr (2006, p.11) quando pleiteia, na medida do possível, a observância de garantias processuais já na investigação. E prossegue:

Colocada a proposta nesses termos, a inserção de garantias constitucionais desde logo na investigação criminal, naquilo que for possível e adequado à sua natureza e finalidade, aparece como ‘passo adiante’ na construção de um processo penal garantidor, entendida esta expressão como sendo o arcabouço instrumental penal uma forma básica de proteção da liberdade individual contra o arbítrio do estado. Mais ainda, preconiza uma nova postura ética do Estado para com o indivíduo submetido à constrição da liberdade, elevando sua condição de pessoa humana independentemente do feito cometido e colocando pautas mínimas de materialização dessa nova ‘condição humana’ no processo.

Obviamente, nessa fase pré-processual prepondera o contraditório mitigado, desprovido da amplitude que alcança na fase processual. Isso não quer dizer que o procedimento não contemplará as diretrizes constitucionais, em essencial, o respeito à dignidade humana. Além disso, o inquérito não terá seu rito de tramitação submetido ao alvedrio do delegado de polícia, sendo necessária a obediência a outros diplomas legais, como o Código de Processo Penal e às normas internas das instituições policiais[9]. Estamos a tratar de um procedimento escrito, formal e que muito poderá contribuir à instrução do futuro processo.

Se mantivermos como diretriz de atuação a aplicação dos valores constitucionais e sua penetração no âmbito do direito penal e do direito processual penal, não há dúvidas de que determinaremos limites claros à investigação e àquilo que será levado ao inquérito. As normas existem e os vetores, implícitos ou explícitos, já estão presentes no ordenamento. A questão é de que maneira serão aplicados e de que forma legitimarão determinada investigação. Nesse sentido, Francisco Palazzo (1989, p.30):

A bem dizer, os grandes problemas a respeito da legalidade não surgem com a formulação da norma penal, de modo a permitir uma direta aplicação de regras, princípios os direitos de liberdade constitucional, como se verifica nos casos em que o tipo penal contenha noções constitucionais ou quando se trate de aplicar a descriminante relativa ao exercício de um direito de liberdade constitucional.

O inquérito policial não é um fim em si mesmo. Tendo a sua instrução mais “próxima” da prática do crime, consubstancia ele um documento não só informativo, mas acima de tudo, persuasivo. Quando bem documentado, serve ele de norte à realização de vários atos processuais, isso quando não abraça alguns atos que dificilmente serão repetidos, como no caso de exames periciais. Essencial é que seja modernizado, que seja legítimo enquanto meio e que encerre diligências voltadas à busca da verdade possível, doa a quem doer.

 

 

Fonte: Empório do Direito

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