Security of the Delegate in crimes with a sentence of more than 4 years …

Securities of the Delegate in crimes with a sentence of more than 4 years or punished with imprisonment

Securities of the Delegate in crimes with a sentence of more than 4 years or punished with imprisonment

For years, it has been criticized, either for publication in articles [1] and legal works, the most recent being the book Advanced Themes of Judicial Police (BARBOSA, 2016, p.136, 2018, p.29), published by JusPodivm, the embarrassment that our criminal procedural system, in particular in the stage of criminal prosecution, where the delegate exercises a function and / or apuratória pretension.

At this stage there is an immense difficulty in implementing fundamental guarantees and human rights, either under the bias of the accused as a subject of rights, or because of the need for efficiency in the effective response by the State to the victims’ violations, which are punished indirectly with the delays and lack of effective guardianship, for example leniency in the approval of efficient mechanisms for the removal of poor protection in emergency measures in cases of domestic and family violence, by PLC 07/2016, as I have already published some notes in our work ( BARBOSA, 2018, 90).

I believe that a scholar of legal science should be concerned not only with the research of in-depth topics in the area of ​​human knowledge in which it is aimed, but also to make it effective in its day-to-day life, which removes the common census from the center of its professional activity, under penalty of not proceeding, engage in typical activity of a charlatan, in addition, science without its practical effectiveness becomes a sterile device, which obligatorily justifies the constant work of parameterizing their signifiers and meanings in a language that allows us to ascend to a uniform system of effectiveness of Rights in the scenario of a just legal order, and with that, its practical realization from the appraisal stage [2] to the execution of the sentence.

I will cite two practical examples.

On one occasion I was presented with a captured person, and his consequent coercive driving to the police station, suspected of committing a crime whose maximum sentence was five years.

In another circumstance, the conduction occurred due to the practice of two crimes in material competition, which sum of maximum penalties would result in 6 years, both punished with detention.

In both cases, in a retrospective reading of the norm carved in the provisions of art. 322 of the CPP, the Police Delegate could not grant provisional release, and the detainee would be referred to the judicial custody hearing. Is this the real solution to the specific case? This was the answer to a question for public tender for admission into the career of Civil Police Delegate of the Federal District. Unfortunate.

For the sake of scientific and scholarly consistency, if the doctrine is uniform in understanding that provisional freedom is a kind of precautionary measure, or contracautela (TÁVORA, ALENCAR, 2015, p.920), there is no other logical conclusion than not situating the drawing up the writ of arrest in flagrante with provisional release by means of bail as two decisions of legal nature in the scope of the precautionary measures, as a species, in view of the fact that the Delegate could cease to arbitrate bail, with the presence of fumus comissi delicti and periculum libertatis da custody, according to art. 324, IV c / c art. 335, both of CPP.

Whether it is a decision issued by an administrative authority or not, the label does not change the content and purpose, in other words, the detention decision referred to in art. 304, paragraph 1, of the CPP, instrumented by the issuance of a note of guilty (true arrest warrant), leading the citizen to jail, assumes a contentious and eminently protective measure.

I am referring not to the arrest, in which any of the people can perform, but to the arrest after the arrest warrant of the Police Chief for the note of guilt (and not the misleading expression “ratification of prison voice”), in which only the Police Officer, in charge of the position, may issue.

As I see fit, I would like to point out that the precautionary nature of administrative acts is not new to the doctrine (RAMOS, 1998, p.

“The police investigation is a complex measure, because it is formed by several other measures, all directed to its optative goal: to serve as a base and support to activities that will be developed in court. It does not appear, however, that there would be an inconvenience in designating the police inquiry as a precautionary administrative procedure. “

Having made these small premises, I return to the stable union between pragmatism and dogmatism: the Delegate can and should analyze the provisional freedom in crimes with maximum penalty above 4 years.

The one, because the art. 322 of the CPP is unconventional for violating human rights treaties, which we address in the second of our work Criminal Investigation by the Judiciary Police.

Even if one does not understand the inconve- nationality of the aforementioned device, in hermeneutics without greater complexities, it is fully possible to free the police in any crime punishable by detention, either by the isolated maximum penalty, as the crimes of art. 7 of Law No. 8,137 / 90 or, if applicable, in the event of criminal prosecution, provided that both are punished with detention, for example, art. 331 of the CP and art. 306 of Law 9,503 / 97.

We can still remember that if the crime is punishable with imprisonment and alternatively a fine, it is more likely that provisional probation in police stations will be possible, in view of the STF’s understanding, since it is possible to suspend the process in the event of crimes that have in their secondary precept the punishment of a fine considered separately, even if the minimum sentence is greater than one year, in view of the abstract consideration of the possibility of the defendant being punished only with a fine, according to HC nº 83.926-6, Rel. Minister Cezar Peluzo.

In this jaez, we bring to light the doctrinal scholarship of Paulo Rangel (RANGEL, 2013, p.854):

“If the police authority has always been able to grant bail in crimes punishable by detention and now the law legitimizes it to do so in crimes whose punishment does not exceed four years, authorizing, for example, to grant bail in the crime of simple theft (punished with imprisonment), it does not make sense that he can not grant in crimes punishable by detention, whether the maximum sentence is greater than four years. (….) It is fucking that who can the most can or less. Therefore, it is clear that the police authority may grant bail in all crimes punishable by detention, whatever the penalty imposed. “

In the same sense (NICOLITT, 2011, p.95):

“Let us then think of a crime punishable by detention of 5 years, as is the case of art. 5 of Law 8.137 / 90 (crime against consumer relations). Would Law No. 12,403 / 2011 prevent bail by the police authority in such cases? In our view, no. The said law enlarged the dimension of freedom and this should be its interpretative matrix. In this way, it can not, in relation to the fundamental right of freedom, represent a social retrogression, under penalty of violating the principle of the prohibition of retrocession. “

It is imperative to conclude that in view of this systemic reality, the full possibility that the rule of art. 322 of the Code of Criminal Procedure, in addition to being irrational and disproportionate, does not survive a diffuse control of conventionality or a systematic-teleological interpretation.

In addition to these incongruities, there are others, such as the irrational defense of classical doctrine, that the Police Delegate is obliged to issue a note of guilt in flagrancial hypotheses in which the agent is caught in the flagrant situation of self-defense or absent circumstance excluding guilt, except for imputability due to mental illness, by analogical force to art. 397, II of the CPP.

It is evident that in a case such as this, which would require another article in our column, does not survive an interpretation according to the constitution, since provisional freedom is not covered by absolute reservation of jurisdiction, as in pretrial detention, the Code admits arbitration of bail by the Delegate and by the Judge.

Thus, in view of the greater effectiveness of fundamental rights, it must be concluded that the wording of art. 310, sole paragraph of the CPP does not denote that it is an exclusive decision of the magistrate, but on the contrary, it is easily deductible that its manifestation will occur because the Delegate did not recognize some hypothesis of the presence of some exclusion of illegality, since the CPP itself, conferred the possibility of this value judgment by the Delegate when it envisages the drawing up of a “self- defense “, the result of a technical-legal analysis of agents acting in self-defense or in strict compliance with legal duty.

Is this not a hypothesis of value judgment of the excludentes by the Delegate?

Is this not a hypothesis of value judgment of the excludentes by the Delegate?

What is the reason, therefore, in view of the current constitutional order, to implement the rule of treatment arising from the presumption of innocence, which imposes freedom as a rule, since the Police Delegate is the primary guarantor of Fundamental Rights, therefore, it is not Art. 310, sole paragraph of the CPP, as a hypothesis of habeas corpus ex officio because of the disagreement over the legal assessment made by the Delegate, who decided to send a note of guilty, representing preventive custody, however, decided the judge for the provisional release of office, in real concession of a writ, although the Public Prosecutor’s Office gave an opinion in favor of the arrest?

The self-restraint is not a safe conduit for the agent of the authority to act in excess, and must also draw a notice of arrest in flagrante (detention), with a note of blame, to the police officer who acted in excess.

In other words, what would justify the possibility of the Delegate to make value judgments on the exclusives before the rule of art. 292 of the CPP and not in the hypothesis of art. 310, single paragraph of the CPP?

I have no doubt that the constitutional reading that is carried out of this device is to enforce the prison as an exception, consequently, art. 310, sole paragraph, referred to above, is interpreted in an extensive manner, since it represents a fundamental, not a restrictive, guarantee whose wording is justified when no value judgment is made on any type of excluder by the Police Delegate, as already do it in art. 292 of the CPP, in view of its total technical-legal autonomy, expressly authorized by art. 2, caput and its paragraph 6, of Law 12.830 / 13.

As Eugen Bertholt Friedrich Brecht said: “What times are these, what do we have to defend for obvious?”