PM homicida deve ser investigado pela polícia judiciária

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Por Henrique Hoffmann Monteiro de Castro

Como já ressaltamos em outra oportunidade[1], as atribuições das instituições policiais encontram-se estampadas de forma cristalina na Constituição Federal, sendo também confirmadas pela legislação infraconstitucional, não havendo dúvidas acerca do papel de cada policial na tarefa de prevenir ou reprimir infrações penais. À Polícia Militar cabe a missão de polícia ostensiva e a preservação da ordem pública (artigo 144, parágrafo 5º da CF), enquanto à Polícia Civil e à Polícia Federal incumbem as funções de polícia judiciária e apuração de infrações penais (artigo 144, parágrafos 1º e 4º da CF).

Não por outra razão, a Lei 12.830/13 estabelece:

Artigo 2º (…)
Parágrafo 1º. Ao delegado de polícia, na qualidade de autoridade policial, cabe a condução da investigação criminal por meio de inquérito policial ou outro procedimento previsto em lei.

Resta claro, pois, que a investigação criminal de crimes comuns deve ser feita pela polícia judiciária, tendo a Carta Maior autorizado a Polícia Militar a apurar apenas os crimes militares (artigo 144, parágrafo 4º, in fine da CF).

E dentre os crimes comuns certamente está o crime doloso contra a vida. Em razão da alteração da redação do parágrafo 4º do artigo 125 da Lei Fundamental pela Emenda Constitucional 45/04, o homicídio praticado por policial militar contra civil é considerado crime comum, e não crime militar:

Artigo 125 (…)
Parágrafo 4º. Compete à Justiça Militar estadual processar e julgar os militares dos estados, nos crimes militares definidos em lei e as ações judiciais contra atos disciplinares militares, ressalvada a competência do júri quando a vítima for civil, cabendo ao tribunal competente decidir sobre a perda do posto e da patente dos oficiais e da graduação das praças.

Nesse sentido, sobreveio a Lei 9.299/96, que modificou o artigo 9º do Código Penal Militar e o artigo 82 do Código de Processo Penal Militar:

Artigo 9º. Consideram-se crimes militares, em tempo de paz: (…)
Parágrafo único. Os crimes de que trata este artigo quando dolosos contra a vida e cometidos contra civil serão da competência da Justiça comum, salvo quando praticados no contexto de ação militar realizada na forma do artigo 303 da Lei 7.565, de 19 de dezembro de 1986 — Código Brasileiro de Aeronáutica.
Art. 82 (…)
Parágrafo 2º. Nos crimes dolosos contra a vida, praticados contra civil, a Justiça Militar encaminhará os autos do inquérito policial militar à Justiça comum.

Destarte, sendo crime comum o homicídio praticado por PM contra civil, deve ser investigado pela polícia judiciária e julgado pela Justiça comum (Tribunal do Júri), conforme expressa disposição constitucional (artigo 5º, XXXVIII e artigo 144, parágrafo 4º da CF).

O Supremo Tribunal Federal, pelo Tribunal Pleno, já consolidou essa posição de que o homicídio praticado por miliciano contra civil é crime comum, sendo corolário lógico que o delito deve ser apurado pela polícia judiciária:

Todos os crimes que tratam o artigo 9º do Código Penal Militar, quando dolosos contra a vida praticados contra civil, são da competência da Justiça comum, os teve, implicitamente, como excluídos do rol dos crimes considerados como militares por esse dispositivo legal, compatibilizando-se assim como o disposto nocaput do artigo 124 da Constituição Federal[2].

O Superior Tribunal de Justiça não destoa:

O parágrafo único do artigo 9º do CPM, com as alterações introduzidas pela Lei 9.299/96, excluiu dos rol dos crimes militares os crimes dolosos contra a vida praticado por militar contra civil, competindo à Justiça comum a competência para julgamento dos referidos delitos[3].
Os crimes de homicídio imputados ao paciente foram todos praticados, em tese, contra vítimas civis, sem exceção, sendo pacífico o entendimento desta corte no sentido de que os crimes previstos no artigo 9º do Código Penal Militar, quando dolosos contra a vida e cometidos contra civil, são da competência da Justiça comum e, em consequência, da Polícia Civil a atribuição de investigar (…) Não caracterizada a natureza militar dos delitos imputados ao paciente, resta afastada a atribuição da Polícia Militar de proceder aos atos investigatórios, a qual pertence à Polícia Civil, conforme estabelece o artigo 144, parágrafo 4º , da Constituição Federal[4].

Não raras vezes a sociedade se depara com justiceiros travestidos de policiais, que forjam autos de resistência para acobertar homicídios e chacinas[5]. Tais execuções sumárias e desaparecimentos forçados são inclusive considerados pela Corte Interamericana de Direitos Humanos como graves violações a direitos humanos, devendo ser reprimidos com especial atenção[6].

Aliás, foi exatamente para combater o corporativismo na investigação e julgamento da violência militar que surgiu a Lei 9.299/96, como explica a doutrina:

Com relação ao direito à Justiça e à sistemática impunidade nos casos de violência da Polícia Militar, assegurada pelo fato de os agentes militares serem julgados por seus pares, no âmbito da Justiça Militar, cabe ressaltar que (…) as pressões internacionais decorrentes dos casos submetidos à Comissão Interamericana contribuíram para a adoção, em 1996, da Lei 9.299, que transferiu para a Justiça comum a competência para julgar os crimes dolosos contra a vida cometidos por policiais militares[7].

Pois bem. Conquanto a exegese dos mencionados dispositivos não enseje maiores dificuldades, surpreendentemente alguns militares, num exercício de malabarismo hermenêutico, insistem que a investigação de tais crimes comuns deve ser feita nas sombras dos quartéis, afrontando o posicionamento das cortes superiores.

Propositalmente, ignoram que a inserção do parágrafo 2º ao artigo 82 do CPPM teve por finalidade não criar uma persecução penal frankensteiniana e antidemocrática, iniciada por inquérito policial militar e culminada no Tribunal do Júri, mas tão somente determinar o encaminhamento à Justiça comum de todos os IPMs que estavam em trâmite na Justiça Militar antes da EC 45/04, para que fossem redistribuídos às delegacias de polícia com atribuição para o feito. Assim entende não apenas a doutrina[8], mas também os tribunais superiores:

Não é admissível que se tenha pretendido, na mesma lei, estabelecer a mesma competência em dispositivo de um código — o Penal Militar — que não é o próprio para isso e noutro de outro código — o de Processo Penal Militar — que para isso é o adequado[9].
Esta corte superior de Justiça adotou o entendimento de que, diante da incidência instantânea das normas processuais penais dispostas no artigo 2º do Código de Processo Penal, a Lei 9.299/1996 possui aplicabilidade a partir da sua vigência, de modo que todas as investigações criminais e processos em curso relativos a crimes dolosos contra a vida praticados por militar contra civil devem ser encaminhados à Justiça comum[10].

A Resolução 8/12 da Secretaria Nacional de Direitos Humanos não contraria os dispositivos constitucionais e legais ou tampouco a visão dos tribunais ao enunciar que o policial militar que matar civil deve ser apresentadoincontinenti na delegacia de polícia:

Artigo 2º. Os órgãos e instituições estatais que, no exercício de suas atribuições, se confrontarem com fatos classificados como “lesão corporal decorrente de intervenção policial” ou “homicídio decorrente de intervenção policial” devem observar, em sua atuação, o seguinte:
I — os fatos serão noticiados imediatamente a Delegacia de Crimes contra a Pessoa ou a repartição de polícia judiciária, federal ou civil, com atribuição assemelhada, nos termos do artigo 144 da Constituição.

No mesmo sentido está a Resolução Conjunta 2/15, do Conselho Superior da Polícia Federal e do Conselho Nacional dos Chefes de Polícia Civil.

Nesse ponto, lecionou com maestria o ministro Celso de Mello:

Essencial que se construa, com estrita observância do que dispõe a Carta Política, um sistema organizado de proteção social contra a violência arbitrária da Polícia Militar (lamentavelmente em processo de contínua expansão) e de imediata reação estatal (…) É preciso advertir esses setores marginais que atuam criminosamente na periferia das corporações policiais que ninguém, absolutamente ninguém — inclusive a Polícia Militar — está acima das leis (…) A Lei 9.299/96 (…) emergiu desse contexto evidenciador de violência criminosa constante que absurdamente impregna a atuação da Polícia Militar em situação de policiamento ostensivo, vocacionada a neutralizar focos perigosos de insubmissão policial-militar ao império da Constituição, da lei e da ordem democrática (…) Não mais competindo, à Justiça Militar, o processo e o julgamento de crimes dolosos contra a vida, praticados por policiais militares ou membros das Forças Armadas contra civil, nada pode justificar — especialmente ante as regras inscritas no artigo 144, parágrafo 1º, IV e parágrafo 4º da Carta Política — que tais infrações penais continuem sendo objeto de investigação, em IPM, pela autoridade policial militar, com evidente usurpação da atribuição investigatória constitucionalmente outorgada à Polícia Federal ou à Polícia Civil dos estados-membros, conforme o caso[11].

Ademais, militarizar a investigação significaria andar na contramão da história[12], num contexto em que a desmilitarização não apenas da apuração de crimes, mas do próprio policiamento ostensivo, vem sendo defendida por juristas[13], estudiosos das ciências sociais[14], militares[15] e instituições nacionais e internacionais de defesa dos direitos humanos, tais como IBCCrim[16], Conselho de Direitos Humanos da Organização das Nações Unidas[17], Corte Interamericana de Direitos Humanos[18], Anistia Internacional[19], Comissão Nacional da Verdade[20] e Secretaria Nacional de Direitos Humanos[21].

Não é apenas inconstitucional e ilegal, mas ilógico que a investigação de crime comum julgado no Tribunal do Júri persista militarizada. Portanto, eventual inquérito policial militar instaurado para esse fim é natimorto e anencéfalo, fadado ao fracasso, especialmente ao se considerar a nulidade de qualquer prova decorrente de medida cautelar solicitada em seu curso perante a Justiça Militar, juízo sobre cuja incompetência não paira controvérsia[22].

Destarte, todo e qualquer miliciano suspeito da prática de crime contra a vida de vítima civil deve ser imediatamente apresentado ao delegado de polícia do lugar mais próximo (artigos 304 e 308 do CPP). Eventual condução de PM homicida a destacamento militar pode acarretar a responsabilização — inclusive penal — do comparsa que pretender favorecer o suspeito. A possibilidade de que o fato tenha sido praticado em legítima defesa não elide a exigência de apresentação do miliciano à Polícia Civil, porquanto a análise de eventual excludente de ilicitude incumbe ao delegado de polícia, e não ao oficial de Polícia Militar, agente da autoridade policial[23] e ocupante de carreira não jurídica[24].

As advertências[25] aos milicianos que usurpam função pública e elaboram termo circunstanciado de ocorrência se encaixam como uma luva na presente discussão:

Todos os elementos informativos e probatórios produzidos por instituição diversa da polícia judiciária são inválidos, porquanto o ordenamento jurídico veda a utilização da prova ilícita (artigo 5º, LVI da CF e artigo 157 do CPP), proibição reafirmada pelos tribunais superiores[26] e pela doutrina[27] (…) Além disso, a partir do momento que um agente público exerce atribuição para a qual não está legalmente autorizado, deixa de cumprir suas funções precípuas com eficiência, malferindo esse postulado constitucional exigido da administração pública como um todo (artigo 37 da CF) e dos organismos de segurança pública em especial (artigo 144, parágrafo 7º da CF) (…) De mais a mais, quando o Brasil leva adiante investigações arbitrárias, afrontando as normas plasmadas no Pacto de São José da Costa Rica, fica sujeito a nova condenação pela Corte Interamericana de Direitos Humanos, tal como ocorreu no Caso Escher[28], justamente porque um policial fardado usurpou as atribuições da polícia judiciária, o que gerou uma indenização de U$ 30 mil a ser arcada pelo cidadão brasileiro. Diga-se ainda que o policial que atuar à margem da Constituição poderá sofrer responsabilização pessoal, seja por improbidade administrativa (artigo 11 da Lei 8.429/92), seja disciplinar por seu próprio órgão, seja criminal por usurpação de função pública (artigo 328 do CP), como bem lembra a doutrina[29]e inclusive o Supremo Tribunal Federal[30].

Nenhuma garantia constitucional é pequena demais para ser jogada no lixo. A escuridão da caserna não é lugar adequado para se apurar a retirada da vida de um civil por militar. Afinal, na persecução penal, forma significa garantia[31], verdadeira condição necessária da confiança dos cidadãos na Justiça[32].

 

Fonte: ConJur

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