Habeas Corpus N. 0039564-35.2011.4.01.0000/to

Penal e processual penal - habeas corpus - associação e tráfico transnacional de entorpecentes - prisão cautelar - preso provisório em interação com presos definitivos - requerimento de prisão domiciliar – não comprovação - indeferimento - réu que teve negado o direito de apelar em liberdade, na sentença condenatória - manutenção da necessidade da prisão, para garantia da ordem pública, justificada - réu integrante de quadrilha voltada para o tráfico transnacional de drogas. Dedicação a atividades criminosas. Garantia da ordem pública - ordem denegada. I - Não tendo o impetrante se desincumbido do ônus processual de comprovar a alegação de fato constitutiva do direito, qual seja, que o paciente estaria preso provisoriamente na companhia de outros presos definitivos, descabe examinar o pedido de conversão da prisão preventiva em prisão domiciliar, fundada exclusivamente nessa circunstância fática. II - Ainda que assim não fosse, encontra-se motivada, por isso subsistente, a decisão que obsta ao acusado o direito de recorrer em liberdade, por entender presentes os requisitos da tutela cautelar com o fim de preservar a ordem pública, em razão da gravidade concreta do delito supostamente cometido, tendo em vista que as circunstâncias narradas na inicial acusatória e aceitas na sentença apontam o envolvimento do paciente em uma organizada rede criminosa voltada para o tráfico ilícito de substância entorpecente em caráter transnacional, elementos que reforçam a necessidade da manutenção da medida constritiva, a fim de acautelar-se a ordem pública, haja vista a periculosidade do agente, revelada pelo modo de atuação do crime perpetrado. Precedentes do STJ. III - “As condições pessoais favoráveis dos Pacientes - primariedade, bons antecedentes, residência fixa e atividade lícita - não são garantidoras de eventual direito de liberdade, quando outros elementos constantes nos autos recomendam a sua custódia preventiva“. (STJ, HC 34715/PA, Rel. Min. Arnaldo Esteves Lima, 5ª Turma, unânime, DJU de 18/10/2004, p. 308).IV - Ordem denegada.

Rel. Des. Murilo Fernandes De Almeida

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