Prisão é coisa séria: A falácia (militarizada) do ciclo completo de polícia.

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Um ciclo completo de polícia faz sentido (e deve fazer) se pensado e estruturado a partir de uma força policial organizada e desmilitarizada, voltada não para si, mas para suas efetivas funções sociais.

INTRODUÇÃO

Em tempos em que o recrudescimento da violência bate em nossas portas, é natural que surjam as mais variadas ideias como possíveis respostas no controle da criminalidade. Vivemos em certa inquietude social que requer uma imediata interferência do Estado por meio de políticas públicas na área de segurança, apresentadas de forma séria, legal e responsável. São esses atributos que constroem uma verdadeira política criminal.

No avesso da razão, do bom senso e da própria democratização histórica das instituições policiais, surge no Brasil a proposta da implementação do denominado “ciclo completo de polícia”. Sugerido, principalmente, por meio da Proposta de Emenda Constitucional n. 431/2009, de autoria do Deputado Subtenente Gonzaga, o presente projeto ganha fama, porque ludibriosamente imputa ao cidadão a ideia de um controle policial mais eficaz e célere. Em resumo, o ciclo completo proporcionaria o poder de prisão (por meio da lavratura do Auto de Prisão em Flagrante e Termos Circunstanciados) a toda e qualquer espécie de instituição policial, não importando sua natureza e atribuições. A ideia advém como uma promessa inexequível de uma melhor e mais rápida diminuição da criminalidade. O ciclo completo, ainda que sua reprovação seja histórica, (conforme, por exemplo, a crítica proposta pelo editorial do IBCRIM em junho de 2009[3]) insiste em se apresentar como fórmula mágica de atuação legislativa eficiente e, o pior, sua atual discussão fecha o debate e esconde o campo da política para aquilo que realmente importa em matéria de inovação policial brasileira, ou seja, a desmilitarização. Cabe lembrar que a PEC 430/90, a qual igualmente prevê a adoção do ciclo completo, também defende a desmilitarização das forças policiais como uma das providências iniciais para a adoção do ciclo completo. [4]

É uma proposta que vai ao encontro de uma especial esquizofrenia social à semelhança daquilo que Débora Pastana chamou de “cultura do medo”[5], ou seja, um sentimento de insegurança popular, em que a sociedade clama por um dever-agir imediato, valorado pelos discursos justiceiros e comuns. São achismos desprovidos de qualquer cientificidade que podem produzir, conforme denunciado por Fernando Galvão, uma influência nociva na política criminal brasileira. [6]

A sociedade de risco[7], a cultura do medo, e outros fenômenos congêneres constrói o espaço ideal para uma produção desenfreada de atos governamentais (a maioria deles na esfera do legislativo) sobre o tema segurança pública.  É aquilo que chamamos de “legislação de atropelo” [8], ou seja, propostas legislativas desamparadas de qualquer cientificismo, que em nada acrescentam à possibilidade de eficácia concreta na questão de segurança, e apenas repetem fórmulas de insucesso (algumas preconceituosas e opressoras, diga-se), que têm como destinatários uma parte da população já discriminada social e economicamente.

Várias espécies destas políticas estão interessadas tão somente em apaziguar por momentos o sentimento de insegurança da população e, por fim, reforçar a criminalização dos indivíduos considerados indesejáveis. A adoção destes discursos nos mostra que grande parte dessas atividades governamentais é eivada de inúmeros vícios. A não-fundamentação de sua existência, o despreparo e a incompetência das instituições envolvidas, a imprevisibilidade de seus resultados e a sua desconexão quanto à realidade do crime e dos fenômenos sociais são algumas de suas características. Sem falar que estas atividades governamentais apresentam também, em sua quase totalidade, uma existência temporária e uma enorme influência sofrida por atos meramente politiqueiros e classistas de inúmeros aproveitadores.

A ideia desarrazoada da adoção do ciclo completo de polícia é fruto da ansiedade por respostas céleres ao fenômeno da criminalidade – campo fértil para políticas eleitoreiras e incoerentes com a desenvoltura da violência e o descontrole da criminalidade. Políticas populistas que iludem o cidadão quanto à eficácia do remédio amargo ministrado, como se este fosse curar todas as doenças existentes ou, no caso, todas as mazelas sociais.

O denominado ciclo completo de polícia é um factoide político-classista travestido de importância social, e uma vez implementado, representaria o maior retrocesso em matéria de persecução penal em nossa história moderna. A lavratura de Autos de Prisão em Flagrante e Termos Circunstanciados é um anseio originário principalmente pelas Polícias Militares estaduais que visam um maior reconhecimento de seu capital social, político e consequentemente econômico (Bourdieu)[9], nem que para isso utilizem a bandeira de uma melhor e mais eficaz política de segurança pública.

Sobre a conceptualização trazida nesse artigo, ainda que se reconheça a existência de inúmeros argumentos científicos, sociais e jurídicos contra a adoção do ciclo completo de polícia, procuramos limitar nossa análise crítica sobre dois enfoques que elegemos como elementares: o primeiro deles demonstrando a desarrazoabilidade em atribuir a prática do ciclo completo às polícias preventivas. O segundo enfoque, reconhecendo o militarismo como uma polícia imperfeita, demonstrando a real incompatibilidade da adoção do ciclo completo com o fenômeno da militarização policial.

desarrazoabilidade do ciclo completo em face da lavratura de procedimentos policiais pelas  instituições policiais preventivas.

 

Quando falamos de ciclo completo de polícia, pensando em termos práticos, podemos defini-lo de forma sucinta: o cidadão, supostamente apontado como um autor de um delito poderá ser autuado em flagrante por qualquer “agente da lei”, sendo ele, Guarda Municipal, Policial Militar, Policial Rodoviário, etc. A instrução funcional e capacidade jurídico-intelectual desses agentes, nesse caso, pouco importa. Esta proposta possibilita que todos os órgãos de segurança procedam à lavratura de Auto de Prisão em Flagrante, garantindo, supostamente, um processo de competição saudável entre as instituições que compõem o art. 144 da Constituição Federal em prol de uma melhor política de segurança pública. O projeto parte do pressuposto equivocado que qualquer policial ou guarda municipal terá a qualificação jurídica necessária para a tipificação correta do delito, com a análise de todos os elementos e circunstâncias do crime.

Como já dissemos: “Prisão é coisa séria”, e a nocividade desse atropelo resultaria em equívocos e abusos perpetrados a todo instante. Num raciocínio rápido, é visível perceber a panaceia desvairada a ser criada: agentes sem formação jurídica tipificando uma conduta ilícita e decidindo sobre a privação da liberdade do cidadão. Seríamos (todos nós) autuados por policiais, guardas, etc. desqualificados juridicamente. Por exemplo, agentes graduados em geologia, biologia, educação física, engenharia civil, gastronomia, etc. Isso quando não, essa autuação fora exercida por policiais que sequer tenham concluído o nível superior, como guardas municipais e policiais militares. Cabe lembrar que a grande maioria dos concursos para guardas municipais e policiais militares no Brasil exige-se tão somente o nível médio. Não raro, ainda percebemos a existência de policiais brasileiros sem o 1º grau completo.

Recentemente, o governador Beto Richa do Estado do Paraná rechaçou a exigência de nível superior como requisito concursal para ingresso nos quadros da Polícia Militar por achar positivo que os policiais militares do estado não tenham tal qualificação: “É bom que os policiais não tenham diploma, porque gente formada normalmente é muito insubordinada”.[10] Ou seja, dentro dessa crença, são esses agentes que decidirão se eu, você, ou qualquer cidadão suspeito deverá ir ou não para a cadeia.

A decisão da lavratura do Auto de Prisão em Flagrante é um exercício jurídico dificílimo, pois é ali que se faz, mediante ato fundamentado, a análise técnico-jurídica do fato, a indicação da autoria, materialidade e circunstâncias.[11] Tudo isso sem prejuízo de outras análises a ser observadas, como por exemplo, a real significância do delito, a propositura de fiança, a destinação dos objetos apreendidos, etc. Resumindo, autuar alguém em flagrante delito é uma atribuição jurídica tão peculiar que até mesmo um Promotor de Justiça ao presenciar um crime e sua autoria, deve se reportar a Autoridade Policial para a formalização desta prisão, pois é ela, ao contrário de policiais militares, guardas municipais, etc., que detém conhecimento jurídico, e especialmente: autonomia e independência funcional para tal. Requisitos essências quando se opta por restringir a liberdade de alguém.

O processo de redemocratização brasileiro, por meio da promulgação da Constituição Federal de 1988, disciplinou a matéria segurança pública  (art. 144 da CF) indicando duas espécies de polícia: Polícia Administrativa (com a função de prevenir a prática do crime) e a Polícia Judiciária, essa última tendo por atribuição a apuração de infrações penais comuns e sua autoria. A função da Polícia Judiciária é exercida, principalmente, por intermédio de instrumentos exclusivos, quais sejam: o Inquérito Policial, Termo Circunstanciado, Auto de Prisão em Flagrante, etc. Uma das justificativas daqueles que defendem a adoção do ciclo completo é a alegação de baixo índice de resolubilidade de crimes pelas polícias judiciárias. Tal argumentação é facilmente rebatida: invista-se melhor nas Polícias Civis e Federal, pois assim, certamente elas irão desempenhar suas atribuições com maior eficiência.

Ao contrário do senso comum, vemos que a atuação do dia a dia na segurança pública mostra que a lavratura do Termo Circunstanciado não é meramente uma “peça de informação”. Há em muitos casos, uma difícil análise da ocorrência posta e suas consequências. Por exemplo, a tênue linha da tipificação penal em uma conduta criminosa que pode, em tese, ser tipificada como lesão corporal ou tentativa de homicídio.  É a análise técnico-jurídica que irá decidir esses casos concretos e não simplesmente os “achismos informativos”.  Esse é o ponto nevrálgico na discussão da lavratura dos Termos Circunstanciados, isto é, a necessidade de tipificação inicial da conduta, que vai servir de base para a definição de qual procedimento judicial será realizado, ligando-se umbilicalmente com o direito de liberdade ou prisão do cidadão.

Tudo isso demanda além de um enorme conhecimento jurídico, a confecção de atos procedimentais próprios de polícia judiciária, como por exemplo, oitiva dos envolvidos, encaminhamento pericial e atos investigatórios, ainda que sumários. No caso de crimes de menor potencial ofensivo, a lavratura do Termo Circunstanciado sem acompanhamento dos elementos essenciais para subsidiar a atuação do Ministério Público e da Justiça enseja no encaminhamento das peças à Delegacia de Polícia para a complementação das diligências, o que acontece, diga-se de passagem, em grande parte dos Termos Circunstanciados lavrados equivocadamente pela Polícia Militar de Santa Catarina (Dec. Est. 660/07), ensejando um retrabalho para o sistema de segurança pública e dispêndio de tempo e de recursos públicos para o ato.

Nesse diapasão, o Ministro Cesar Peluzo, citado pelo Ministro Luiz Fux nos autos do Recurso Extraordinário n. 702.617 – AMAZONAS, indicou: “antes da lavratura do termo circunstanciado, o policial militar tem de fazer um juízo de avaliação dos fatos que lhe são expostos. É isso o mais importante do caso, não a atividade material da lavratura”.  Logo, não é por acaso que a lei atribui a Autoridade Policial Judiciária a presidência da elaboração de Termos Circunstanciados e Autos de Prisão em Flagrante, pois somente esse agente público, por prestar concurso específico à esta atividade jurídica, possui conhecimento jurídico para tal. Por exemplo, conceitos de parte geral de direito penal, como as elementares do tipo, tipicidade material da conduta, causas excludentes de ilicitude, aplicação de princípios relacionados ao conflito aparente de normas (principio da especialidade, princípio da consunção, princípio da subsidiariedade), bem como regras de concurso de crimes (concurso material, concurso formal próprio e impróprio e crime continuado).  Importante destacar a manifestação do Ministro do Supremo Tribunal Federal Celso de Melo, indicando que o Delegado de Polícia é o primeiro garantidor de Direitos Fundamentais, e para tanto, deverá proceder à análise da detenção no momento da condução do suposto autor do crime, decidindo sobre sua prisão ou liberdade, o que, obviamente, demanda responsabilidade social e jurídica.

Quando nos vem à mente a possibilidade da lavratura de Termos Circunstanciados e Autos de Prisão em Flagrante por toda e qualquer instituição policial, em termos práticos, poderíamos apontar inúmeros questionamentos que demonstram essa desarrazoabilidade. Senão vejamos:

Destaca-se que a Polícia Militar tem como fundamento institucional a hierarquia e disciplina havendo a possibilidade de prisão administrativo-disciplinar em caso de descumprimento de ordem superior. Assim, questiona-se se um policial militar de patente mais baixa entender não ser o caso de autuação em flagrante ou lavratura de termo circunstanciado, um policial militar mais graduado poderia ordenar que o faça sob pena de responsabilidade administrativa?

O questionamento se debruça também sobre a imparcialidade do policial militar, guarda municipal, etc. que ao atender uma ocorrência, da qual muitas vezes ele participou diretamente, logo em seguida é compelido a lavrar o Auto de Prisão em Flagrante. Bem provável que este policial (envolvido como parte: testemunha, vítima, etc.) tenha seu juízo de valor influenciado.

Outra questão pauta-se na forma como o policial irá lavrar o ato e se poderá conceder a liberdade provisória com fiança para o autor dos fatos – atividade que implica em verdadeiro juízo de valor e conhecimento jurídico para o procedimento policial. Ademais, a adoção dessa nova forma de atuação poderá acarretar “encarceirização” desnecessária, gerando ainda mais inchaço nos presídios e aumento de custos para o Estado – isso aplicado no momento em que se discute o projeto de audiência de custódia, justamente para ensejar o desafogamento dos presídios. Bom dizer, que nem todos os conduzidos às delegacias são pessoas envolvidas em atividades criminosas de maneira contumaz. Grande parte dos casos são delitos praticados por qualquer cidadão. Há casos de conduções em que uma análise mais apurada demonstra que o sujeito conduzido não foi autor do crime, demandando maior investigação dos fatos, ainda que de forma imediata. Assim, destaca-se o prejuízo ao conduzido encaminhado ao presídio de forma açodada ou equivocada, gerando danos psicossociais ao sujeito – o que pode ensejar responsabilidade civil do Estado.

Questiona-se também o local da lavratura do Auto de Prisão em Flagrante. Não podemos crer que tal procedimento possa vir a ser realizado no local dos fatos, no capô de uma viatura, ou até mesmo em Secretarias Municipais de Defesa Social, Quarteis Militares, Postos da Polícia Rodoviária Federal, etc. Nesse sentido, também se indaga: como fica a preservação dos direitos e garantias fundamentais do suspeito? Especialmente quanto ao seu direito de ser assistido por um Advogado constituído, por seus familiares, e também o direito constitucional de sua prisão ser comunicada ao Poder Judiciário e Ministério Público. E ainda: na validade da audiência de custódia, a qual prevê a apresentação do preso (antes de seu encaminhamento a uma unidade prisional) a presença de um Juiz, Promotor e Advogado nos casos de prisões em flagrante no prazo de 24 horas, questiona-se: Durante esse período onde permanecerá preso o autor do crime? Quarteis? Prefeituras? Bases Policiais Rodoviárias? Desnecessário dizer que todas estas circunstâncias ferem o princípio da vedação do retrocesso de direitos fundamentais.

No mesmo sentido, uma indagação ainda mais pertinente: Nas pequenas Comarcas onde não há previsão da audiência de custódia o problema surge pelo fato de que vários Tribunais de Justiça não disponibilizam juízes plantonistas para analisar as circunstâncias e requisitos do Auto de Prisão em Flagrante, especialmente aqueles lavrados em horários não convencionais: madrugadas, fins de semana e feriados. Nestas hipóteses a apresentação do preso, geralmente dar-se-á apenas durante o horário e dia de expediente normal. Até lá, onde ele permanecerá? Será que a tutela deste preso, por horas e dias, à responsabilidade de policiais militares, guardas municipais, etc. não prejudicará suas atribuições normais, como rondas, atendimento a ocorrências, etc.?

Torna-se fácil perceber que o ciclo completo certamente burocratizará as polícias preventivas, em flagrante prejuízo ao serviço de policiamento ostensivo. Tudo isso sem falar na previsibilidade de um maior custo financeiro para os estados, haja vista a necessidade de contratação de ainda mais policiais militares, guardas municipais, policiais rodoviários federais, etc.

Por fim, em tom de crítica indagamos: O que há de célere e eficaz nessa ideia?

Mediante todos esses apontamentos, podemos certamente dizer que a adoção do ciclo completo não resultará em uma polícia mais eficiente, rápida e concatenada aos anseios da sociedade, pelo contrário, gerará um imbroglio penal materializado pela confusão de atribuições policiais. E o que é pior, criar-se-á uma expectativa social dificilmente correspondida, pois o aumento da criminalidade certamente ganhará espaço mediante atos equivocados e eventuais abusos policiais. São esses os ingredientes essenciais para a criação de um modelo de Estado fundado na insegurança jurídica e social.

MILITARIZAÇÃO E CICLO COMPLETO: UMA IDEIA INCOMPATÍVEL

 

 “Quando a gente fala em desmilitarização da polícia, muita gente não entende o que estamos querendo dizer. Acha que a gente quer que a polícia ande desarmada. Outros pensam que o problema é a farda. Não tem nada disso. O problema do militarismo é que a sua lógica é de treinar soldados para a guerra. A lógica de um militar é ter um inimigo a ser combatido e para isso faz o que for necessário para aniquilar esse inimigo… A polícia não pode ser concebida para aniquilar o inimigo. O cidadão que está andando na rua, que esta se manifestando, ou mesmo o cidadão que eventualmente está cometendo um crime, não é um inimigo. É um cidadão que têm direitos e esses direitos tem de ser respeitados.”

 

O desafogo feito pelo professor de direito penal da UFMG Dr. Túlio Viana durante uma aula pública realizada no vão do MASP, São Paulo[12] sobre as desmilitarizações das polícias claramente sintetiza, em tom de crítica, a escolha de um modelo de política de segurança pública eleita e adotada em nosso país. Ou seja, uma política de guerra.

É notório que a prática militarizada das forças policiais perpetua-se por condutas diárias de combate e extermínio. Infelizmente essa é a lógica. Pode-se dizer que não raramente encontramos nos noticiários casos de abusos policiais cometidos dos mais diversos. Numa rápida análise poderíamos citar três exemplos mais que atuais: a) o fenômeno da derrubada: nome dado ao jargão policial à execução de supostos criminosos mortos “em confronto” com a Polícia Militar[13]; b) a suspeita de tortura ou agressão praticada por agentes de segurança paulista, onde desde o início da implementação da audiência de custódia (fevereiro de 2015), segundo dados do próprio Tribunal de Justiça de São Paulo, policiais militares estariam envolvidos em 79,4% dos casos[14] ; c) e por fim, a informação de que entre janeiro a agosto deste ano, 571 pessoas foram mortas por policiais militares durante operações no estado de São Paulo segundo levantamento da  própria ouvidoria policial.[15]

Estes três exemplos nos fazem perceber que esse modo de agir não deve ser visto apenas como fatos isolados, muito pelo contrário, denotam, conforme Samara B. Nunes, uma prática institucionalizada e frequente como política de contenção da criminalidade, a qual encontra o apoio de segmentos expressivos da corporação, da população e mesmo do governo, o que obstaculiza um processo de reformas. [16]

A nosso ver, por toda essa prática, é que em maio de 2012, o Conselho de Direitos Humanos da ONU (Organização das Nações Unidas) recomendou o fim das Polícias Militares no Brasil[17]. No mesmo sentido, este mês (setembro/2015) a relatora da ONU Sra. Rita Izsáck, em visita ao Brasil, novamente reiterou a necessidade de extinguir as Polícias Militares.[18]

Infelizmente, a complacência política e social, em face dos abusos policiais, representa um modelo de segurança voltado muito mais para a supressão de direitos e garantias do que pela própria finalidade do sistema penal: segurança e ressocialização. Em resumo, podemos dizer que a politica de segurança militarizada, sob o discurso da “manutenção da ordem social”, continua preso a ideia positivista da ordem, normalidade e especialmente da “segurança nacional”, e prima pela defesa do próprio Estado, e não a defesa de seus cidadãos, como bem denunciado por Zaverucha.[19]

Se a história recente do Brasil nos mostrou a atuação das forças militares em variadas situações de conflitos, foi especialmente na época da ditadura militar que uma nova espécie de inimigo nacional evidenciou-se. O inimigo político torna-se o inimigo penal. Eram eles, os opositores da ordem e do progresso, os inimigos da nação que, de certo modo, não coadunavam com a ordem política estabelecida (os revolucionários, os comunistas, os anarquistas, os estudantes de esquerda, etc.).[20] Interessante lembrar que nesta época criou-se uma atmosfera fortemente vinculada a um pseudo-conceito de nacionalismo extremado, ou seja, um período onde o senso comum social sintetizava-se em discursos de ordem, justiça, nação e progresso. As alocuções governamentais agiam nesse sentido, vale transcrever alguns famosos slogans ufanistas: “Brasil ame-o ou deixe-o”, ou “Quem não vive para servir o Brasil, não serve para viver no Brasil”, etc.[21]

Atualmente ainda observam-se slogans semelhantes, como é o caso do lema utilizado pela Polícia Militar do Estado de Santa Catarina: “por pessoas do bem, para o bem das pessoas.”[22] Tais slogans representam claramente uma depreciada ideia de sociedade cindida entre cidadãos “bons” e “maus”. Essa dicotomia social (bons versus maus) foge da busca da criação e manutenção de um verdadeiro Estado Democrático de Direito, pois polariza, por meio do sistema penal, o campo social.

Durante aproximadamente 20 anos (da década de 60 a 80) o controle social exercido no Brasil era obtido, não raramente, por meio de práticas totalitárias advindas das instituições policiais. Verdadeiros desvios materializados por torturas, extermínios, prisões para averiguações, etc. Tudo sob a égide do discurso nacionalista da manutenção da lei e da ordem social, ou segurança nacional. É inegável reconhecer que a militarização das forças policiais era o método usual para o exercício do controle e manutenção da estrutura político-social.

Há muito, David Bayley nos disse que a militarização das instituições de segurança representa uma polícia imperfeita[23]. Aponta ainda as maiores razões para o contínuo policiamento militarizado em sociedades modernas: confrontos civis prolongados, erupções severas ou generalizadas da violência cometidas por um grande número de pessoas.[24] Atualmente, a manutenção de uma instituição policial militarizada é um resquício direto das características típicas de um Estado ditatorial. Perpetua-se pela ideia bélica que vê o criminoso não como um cidadão a ser integrado socialmente (lembrando que essa é a principal  função da pena criminal[25]), mas sim como um inimigo que deve ser eliminado. É um processo que foge da lógica jurídico-punitiva para tornar-se meramente militar. Ou seja, um processo que não se coaduna com o tipo de sistema democrático eleito em nossa sociedade. Vale citar os ensinamentos de Souza:

O modelo de Polícia Militar continua fortemente atrelado à ideia de segurança nacional. As metáforas cotidianas ligadas à segurança são ainda militares: combater o crime, eliminar o inimigo, etc. O controle das drogas e das armas ainda tem conexão com o modelo militar, com forte influência das estratégias adotadas pelos Estados Unidos na “guerra às drogas[26].

 

Quando pensamos na adoção do denominado ciclo completo pela Polícia Militar, lembramos dos ensinamentos de Moraes, quando diz que “é a esta polícia que se quer confiar tarefas que, primeiramente e antes de tudo, não seriam atribuição dela e, em segundo lugar, para as quais ela não se encontra preparada pelo simples fato de que foi treinada para outro tipo de resposta.”[27]

Quando Moraes fala desse treinamento “para outro tipo de resposta”, explica que derivado da estrutura militarista, as relações institucionais e intersubjetivas entre praças e oficiais são marcadas por um abismo relacional regulado pelo Regime Disciplinar do Exército, instrumento meramente punitivo, ultrapassado e com alto grau de subjetividade na interpretação de seus artigos e incisos. Ou seja, à formação militarizada some-se um processo de socialização marcado por injustiças e violências institucionais, segundo a percepção dos praças, que certamente têm reflexos na sua atuação nas ruas.”[28]

No mesmo sentido, segue o próprio autor: “Esta tropa encontra-se assim não porque não tenha sido treinada para tratar de modo civilizado e correto com a população, não porque tenha faltado aulas de direitos humanos ou de resolução e mediação de conflitos. A tropa foi treinada, por intermédio da internalização da cultura institucional, para ser exatamente o que é, por meio das práticas e atitudes que não precisam de explicação, encerram uma racionalidade própria e são capazes de resistir às tentativas de mudanças  ou re-significar as propostas de mudanças sem a produção de mudanças efetivas no caráter da instituição.”[29]

Por toda essa análise, da qual nos faz acreditar na incompatibilidade da adoção do modelo do ciclo completo pelas Polícias Militares, no mesmo sentido, percebemos não ser à toa que o próprio Projeto de Emenda Constitucional 430/2009 prevê a extinção das polícias militarizadas, e, consequentemente a adoção de uma nova Polícia. Vale a pena transcrever, parte da justificativa da referida PEC: “Para tanto, primeiramente, desconstituiremos as polícias civis e militares dos Estados e do Distrito Federal, para constituir uma nova polícia, desmilitarizada e condizente ao trato para como cidadão brasileiro, cujo comando será único em cada ente federativo, subordinado diretamente ao seu governador.” (grifo nosso)[30]

Nesse sentido, de acordo com justificativas demonstradas, podemos afirmar: Atualmente, enquanto perdurar o modelo policial militarizado, as Polícias Militares do Brasil não têm legitimidade histórica, social e atribuição constitucional para exercer quaisquer atos de Polícia Judiciária, especialmente quanto a lavratura de procedimentos policiais.

A nosso ver, a experiência da maioria dos atos exclusivos de polícia judiciária praticados por policiais militares revelaram-se verdadeiros equívocos, alguns com repercussão no Brasil e no exterior. Um fato clássico que exemplifica esta nossa afirmação, resultou na condenação do Estado brasileiro pela Corte Interamericana de Direitos Humanos em face da realização de escutas ilegais feitas pela Polícia Militar do Estado do Paraná no ano de 1999 contra representantes de entidades ligadas ao MST (Movimento dos Trabalhadores Rurais Sem Terra). Tal fato foi conhecido como Caso Escher, e teve sua sentença condenatória publicada em 09 de julho de 2009.

De caráter menos gravoso em suas repercussões e consequências internacionais, mas não menos importante do ponto de vista sócio-jurídico, poderíamos apontar os Termos Circunstanciados lavrados pela Polícia Militar de Santa Catarina de forma questionável juridicamente haja vista ser objeto de Ação Direta de Inconstitucionalidade (ADIN n. 3.982). Cabe dizer que tais procedimentos, em grande número, são ajuizados de forma incompleta e incorreta, onde posteriormente são remetidos a Polícia Civil local para nova lavratura de procedimento policial. Tal fato, além de resultar numa morosidade da justiça (na contramão do princípio da celeridade proposto pela lei 9.099/95), revela-se um desperdício de recursos públicos. Tudo isso, sem falar no prejuízo das atribuições policiais preventivas, uma vez que grande número de policiais militares deixam suas atividades inibitórias (rondas, atendimento a emergências, ocorrências, patrulha escolar, etc.) em prol de uma atividade cartorária não condizente com suas atribuições constitucionais.

Todo esse desacerto fez, por exemplo, que o Estado de São Paulo repensasse sua política criminal que autorizava policiais militares, em caráter experimental, elaborar Termos Circunstanciados. Ao contrário de Santa Catarina, os malefícios dessa prática foram percebidos pelo Governo paulista, o qual em 2009 publicou a resolução n. 233 proibindo policiais militares elaborarem Termos Circunstanciados. Esse entendimento, ganha forte respaldo no mundo jurídico acadêmico, importante a lição de Alexandre Morais da Rosa e Salah H. Khaled Jr:

 

A Polícia Militar, cada vez mais, arvora-se numa função que não é sua: lavrar Termos Circunstanciados e protagonizar investigações. A situação potencializa-se no caso do Estatuto do Torcedor e do Policiamento Ambiental. A Polícia Militar é instituição reconhecida pela Constituição da República e, embora possamos ter divergências quanto à militarização do cotidiano, merece o respeito por suas funções, dentro dos limites legais. No Estado Democrático de Direito o exercício do poder estatal está limitado pela lei. Quando transborda é ilegal.[31]

 

 

Se há um sentimento de reprovação e ilegalidade quanto a lavratura de Termos Circunstanciados pela Polícia Militar, ou seja, em delitos de menor potencial ofensivo, um maior disparate é a ideia da possibilidade da lavratura de Autos de Prisão em Flagrante por estas instituições. Pois o militarismo policial, com sua essência bélica e oponente, que enxerga o criminoso como um inimigo que precisa ser aniquilado, não se coaduna com a ideia de segurança social  fundada no contratualismo moderno (“todos são iguais perante a lei”, criminosos ou não) o qual nós chamamos de democracia.  Esse militarismo, conforme Souza[32], continua fortemente atrelado à ideia de segurança nacional. As metáforas cotidianas ligadas à segurança são ainda militares: combater o crime, eliminar o inimigo etc.  Esse discurso e prática, objetivado por essas instituições por meio da adoção do ciclo completo de polícia, não podem ter espaço no interior de uma política criminal moderna e democrática, onde a salvaguarda dos direitos e garantias do criminoso, visto também como um cidadão, deve ser prioridade das políticas de segurança.

Toda essa análise torna-se importante não apenas pelo fato de questionarmos a existência de um suposto “estado de guerra social” perpetrado por uma lógica de repressão e controle das “classes perigosas” (conforme recentemente denunciado pelo diretor da Anistia Internacional no Brasil)[33], no qual o militarismo preventivo e repressivo é equivocadamente visto por alguns como a única política pública salvadora. Nossa crítica vai além, no sentido de demonstrar que esse sentimento social de insegurança constrói o espaço ideal para atuação de aproveitadores e populistas, muitas vezes por meio de uma produção desenfreada de atos governamentais (politiqueiros e classistas) desamparados de qualquer cientificismo em que nada contribuem para o controle da criminalidade.

CONSIDERAÇÕES FINAIS

 

Na contramão da consolidação do Estado Democrático brasileiro, a adoção do ciclo completo de polícia, por toda e qualquer instituição policial, independente de suas qualificações e atribuições, representaria o maior retrocesso em nível da política criminal moderna. É um discurso “justiceiro”, fundado em uma suposta eficiência e celeridade, o qual esconde o real significado de sua adoção: a busca pelas polícias preventivas de um maior reconhecimento de seu capital social, político e econômico. Lança-se mão do sentimento de insegurança social no intuito de criar-se um campo propício para o recrudescimento do militarismo. Como se esta fosse a principal, senão única, resposta eficaz contra o fenômeno da criminalidade.  A adoção do ciclo completo advém de ideias e atos políticos desprovidos de qualquer tecnicismo e legalidade e, ainda pior, fecha o debate e esconde o campo da política para aquilo que realmente importa em matéria de inovação policial brasileira: a desmilitarização das forças policiais.

Os abusos praticados pelas Policias Militares não podem mais ser vistos como fatos isolados, pelo contrário, representam uma cultura de manutenção de padrões de atuação violentos, nos quais o criminoso infrator é visto como um inimigo social que deve ser eliminado. É um processo marginal que foge da lógica jurídico-punitiva, principalmente quando lembramos que uma das funções da pena criminal é a ressocialização.

Pela inabilidade, inexperiência, e, principalmente, pela falta de conhecimento técnico-jurídico, a maioria dos atos exclusivos de polícia judiciária praticados por policiais militares revelaram-se, além de condutas ilegais, verdadeiros equívocos, tanto na esfera social, como jurídica. Insistir nesse erro é aceitar o atropelo e a nocividade retratada por abusos e ilegalidades cometidos por agentes policiais não qualificados para decidir sobre a tipificação penal.

Enquanto perdurar um modelo policial militarizado, entendemos que um ciclo completo de polícia, tal qual está em discussão, carece de seu elemento básico: o respeito às conquistas constitucionais e da ordem democrática de um estado de Direito de fato. Neste caminho, a discussão proposta pelo ciclo completo de polícia conduz falsamente a uma espécie de caleidoscópio da segurança, apontado para direções incertas e não seguras. A possibilidade da lavratura de procedimentos policiais por quaisquer forças apenas demonstra o quão longínquo estamos da discussão séria e constitucional de uma política criminal mais concatenada com os anseios de uma sociedade mais igualitária e justa.

Um ciclo completo de polícia faz sentido (e deve fazer) se pensado e estruturado a partir de uma nova força policial organizada e desmilitarizada, voltada não para si, mas para suas efetivas funções sociais: prevenção e repressão à criminalidade, que afetam a condição plena de cidadania. Só assim, podemos dizer que o ciclo completo pode atingir sua própria essência – para além dos interesses classistas –, ou seja, o bem-estar público e a segurança necessária para a criação de um ambiente verdadeiramente democrático na sociedade brasileira.

 

Fonte: Jus Navigandi

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