Habeas Corpus 97.781

Penal e processual penal. Prevenção. Critério Para fixação da competência funcional (art. 83 do cpp). Necessidade de decisão meritória do órgão predecessor. Súmula nº 706 do stf. Condenação com base em prova Indiciária. Legitimidade. Habeas corpus substitutivo de Recurso ordinário constitucional. Inadmissibilidade. Competência do supremo tribunal federal para julgar Habeas corpus: cf, art. 102, i, “d” e “i”. Rol taxativo. 1. A prevencao nao constitui criterio de fixacao da competencia funcional no processo penal (art. 83 do CPP) quando o orgao predecessor na analise de ato do processo, ou medida a ele relativa, nao profere decisao de merito, apta a demonstrar pre-compreensao acerca da materialidade do delito ou de sua autoria. Precedente: RE 88417, Relator(a): Min. RAFAEL MAYER, Primeira Turma, julgado em 24/04/1979. 2. A incompetencia resultante de inobservancia da competencia funcional por prevencao e relativa, consoante remansosa jurisprudencia da Corte (HC 103226, Relator(a): Min. DIAS TOFFOLI, Primeira Turma, julgado em 10/04/2012; HC 103510, Relator(a): Min. ELLEN GRACIE, Segunda Turma, julgado em 30/11/2010). Sumula no 706 do STF: “É relativa a nulidade decorrente da inobservância da competência penal por prevenção”. 3. A força instrutória dos indícios é bastante para a elucidação de fatos, podendo, inclusive, por si própria, o que não é apenas o caso dos autos, conduzir à prolação de decreto de índole condenatória, quando não contrariados por contraindícios ou por prova direta. Doutrina: MALATESTA, Nicola Framarino dei. A lógica das provas em matéria criminal. Trad. J. Alves de Sá. Campinas: Servanda Editora, 2009, p. 236; LEONE, Giovanni. Trattato di Diritto Processuale Penale. v. II. Napoli: Casa Editrice Dott. Eugenio Jovene, 1961. p. 161-162; PEDROSO, Fernando de Almeida. Prova penal: doutrina e jurisprudência. São Paulo: Editora Revista dos Tribunais, 2005, p. 90-91. Precedentes: AP 481, Relator: Min. Dias Toffoli, Tribunal Pleno, julgado em 08/09/2011; HC nº 111.666, Relator: Min. Luiz Fux, Primeira Turma, julgado em 08/05/2012; HC 96062, Relator: Min. Marco Aurélio, Primeira Turma, julgado em 06/10/2009. 4. A competencia originaria do Supremo Tribunal Federal para conhecer e julgar habeas corpus esta definida, taxativamente, no artigo 102, inciso I, alineas “d” e “i”, da Constituicao Federal, sendo certo que a presente impetracao nao esta arrolada em nenhuma das hipoteses sujeitas a jurisdicao desta Corte. Inexiste, no caso, excepcionalidade que justifique a concessao, ex officio, da ordem. 5. In casu, o paciente foi condenado, em sede de apelacao, a pena de 14 (catorze) anos e 05 (cinco) meses de reclusao e 86 dias-multa, pela pratica dos crimes previstos nos artigos 148 (sequestro), 157, incisos I e II (roubo exercido com emprego de arma e concurso de pessoas), e 250, incisos I, II e III (incendio), todos do Codigo Penal. O impetrante alega que: (i) ha ilicitude na decretacao da quebra de sigilo telefonico e fiscal; (ii) o decreto condenatorio se baseou apenas em elementos indiciarios; (iii) o orgao julgador da apelacao era incompetente. 6. A competencia do orgao que apreciou a apelacao foi fixada pela Resolucao no 10/2005 do Tribunal de Justica do Parana, que, ante a extincao do Tribunal de Alcada, ratificou a competencia da 4a Camara Criminal para a apreciacao do recurso em apreco. 7. A nulidade em face da inobservancia das regras de prevencao e de cariz relativo, a exigir demonstracao de prejuizo e tempestiva alegacao, nos termos da Sumula no 706 do STF. 8. O decreto condenatorio nao traduz julgamento com base apenas em indicios, visto assentar que “inexistem quaisquer dúvidas sobre a responsabilidade” do paciente, pois “denota-se que a prova circunstancial guarda absoluta corroboração com a coletada na instrução judicial”. 9. A quebra do sigilo telefonico e bancario do paciente, in casu, foi precedida de regular autorizacao judicial, conforme consignado pelas instancias inferiores. 10. A instauracao de inquerito policial, procedimento cujo controle e constitucionalmente conferido ao Ministerio Publico (art. 129, VII, CRFB), afasta a alegacao de extrapolacao das atribuicoes do parquet. 11. Ordem extinta sem resolucao de merito por inadequacao da via eleita.

Rel. Min. Luiz Fux

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