Lei de Acesso à Informação pode iluminar as sombras do processo penal

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Por Alexandre Morais da Rosa

 

Como a Lei de Acesso à Informação (LAI) pode ser aplicada ao processo penal? Responderemos a esta questão, indicando, ao final, algumas hipóteses de incidência.

A instauração da cultura da transparência, da publicidade, com controle social da administração pública em face da informação[1]coletada por órgãos públicos (Lei 12.527/11, artigo 3º, I, IV e V) gera impactos no processo penal, em especial na investigação preliminar, bem assim durante a instrução processual.

É comum se requisitarem informações aos órgãos públicos mediante requerimento formulado ao juiz condutor do processo. Entretanto, essa prática, diante da LAI, não mais se sustenta. Com o tratamento dado às informações constantes nos bancos públicos, salvo o indeferimento ou mesmo a renitência, justificam sejam formuladas em juízo. No caso da investigação criminal, embora não tenhamos uma defensiva ainda, abre-se a possibilidade de a defesa valer-se das possibilidades probatórias.

O fornecimento das informações solicitadas, na forma da lei (artigo 10), deverá ser prestado, no prazo (10 dias, prorrogáveis por mais 10, justificadamente), podendo-se demonstrar sua impossibilidade ou negativa, com cópia integral e fundamentada da decisão (artigo 14)[2]. As informações disponíveis deverão ser imediatamente ter o acesso garantido. Em caso de indeferimento deverá ser explicitado o superior para fins de recurso e sua forma (artigo 11, parágrafo 4º).

Quando se trata de investigação criminal ou processo penal, na garantia do direito de ampla defesa e contraditório, de liberdades, incide a regra do artigo 21: “Não poderá ser negado acesso à informação necessária à tutela judicial ou administrativa de direitos fundamentais. Parágrafo único.  As informações ou documentos que versem sobre condutas que impliquem violação dos direitos humanos praticada por agentes públicos ou a mando de autoridades públicas não poderão ser objeto de restrição de acesso”.

A ressalva do artigo 22 (“O disposto nesta Lei não exclui as demais hipóteses legais de sigilo e de segredo de justiça”), todavia, nos termos do artigo 20 do Código de Processo Penal, da Lei do Crime Organizado (Lei 12.850, artigos 18 e 20), da Lei de Proteção às Testemunhas (Lei 9.807/99, artigo 7º) e da Súmula Vinculante 14 do Supremo Tribunal Federal (“É direito do defensor, no interesse do representado, ter acesso amplo e irrestrito aos elementos de prova que, já documentados em procedimento investigatório, realizado por órgão de competência de polícia judiciária, digam respeito ao exercício do direito de defesa”), não podem impedir a violação de direitos, e deve ser lida pela lógica da transparência, do dever de legalidade e de acesso amplo às informações.

Evidentemente que não se pode informar aos indiciados e/ou acusados sobre as táticas de investigação, nem tornar inviável a persecução estatal, como, aliás, o artigo 23 da estipula: “São consideradas imprescindíveis à segurança da sociedade ou do Estado e, portanto, passíveis de classificação as informações cuja divulgação ou acesso irrestrito possam: (…) VIII – comprometer atividades de inteligência, bem como de investigação ou fiscalização em andamento, relacionadas com a prevenção ou repressão de infrações”.

De qualquer forma, o conteúdo da informação não poderá ser restrito eternamente e, portanto, deverá atender a classificação do artigo 24 (“A informação em poder dos órgãos e entidades públicas, observado o seu teor e em razão de sua imprescindibilidade à segurança da sociedade ou do Estado, poderá ser classificada como ultrassecreta, secreta ou reservada. § 1º Os prazos máximos de restrição de acesso à informação, conforme a classificação prevista no caput, vigoram a partir da data de sua produção e são os seguintes: I – ultrassecreta: 25 (vinte e cinco) anos; II – secreta: 15 (quinze) anos; e III – reservada: 5 (cinco) anos”).

Quando se tratar de questão criminal, todavia, fora das hipóteses legais, qualquer tentativa de manutenção do sigilo, deverá ser compreendida como violação de Direitos Fundamentais. É verdade, pois, que o tratamento das informações de caráter pessoal recebeu tratamento especial[3], destacando-se o parágrafo 4º , segundo o qual “A restrição de acesso à informação relativa à vida privada, honra e imagem de pessoa não poderá ser invocada com o intuito de prejudicar processo de apuração de irregularidades em que o titular das informações estiver envolvido, bem como em ações voltadas para a recuperação de fatos históricos de maior relevância”.

Logo, no campo do processo penal, por exemplo, pode-se indicar, exemplificativamente, hipóteses de aplicação:

a) Requerimento formulado ao Ministério Público, diante do reconhecimento da possibilidade de proceder investigações autonomamente (pelo STF – RE 593.727), indicando se existe alguma em desfavor do requerente, mesmo sem indiciamento;

b) Requerimento de Informações sobre a credibilidade dos policiais e servidores públicos que atuaram em investigações, justamente para saber seus antecedentes e apurar o histórico da testemunha para fins de credibilidade do depoimento;

c) Requerimento de Informações sobre a localização do GPS – Geolocalização – das viaturas e dos celulares oficiais que fizeram as abordagens respectivas, com o fim de demonstrar a veracidade ou não das informações;

d) Direito de se obter a integridade das mídias no caso de interceptação telefônica para fins de defesa de direitos individuais, inclusive em sede de Revisão Criminal;

e) Requerimento para Informação se alguma testemunha, prova ou diligência foi realizada e não materializada nos autos;

f) Requerimento para informação se existe alguma investigação, interceptação telefônica, no âmbito da Lei 9.296/96, pela qual tenha surgido as razões do flagrante, dado que é muito comum se aproveitar as informações colhidas no decorrer de outras investigações, sem delas se fazer referência, manipulando-se o direito ao Juiz Natural.

Enfim, são apenas possibilidades de aplicação da Lei de Acesso à Informação, tendente a dar transparência à atividade pública de persecução penal. Isso porque, embora possamos ter sigilo democrático, ainda se convive com práticas autoritárias. Talvez a Lei de Acesso à Informação possa nos auxiliar a evitar as sombras do processo penal, eventualmente responsabilizando os agentes públicos que operam em desconformidade com a lei. Em muitos casos, poderá levar à anulação de condenações e julgamentos, dado que os pedidos podem ser feitos hoje para processos findos.

Não se pode compactuar com as violações de Direitos Fundamentais em nome do resultado. A Lei de Acesso à Informação é uma aliada na busca de transparência do processo penal.

 

Fonte: ConJur

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