1ª Turma Nega Hc Para Irmão De Marcola Condenado Por Roubo E Sequestro

Por maioria de votos, a Primeira Turma do Supremo Tribunal Federal (STF) negou, na sessão de terça-feira (29), Habeas Corpus (HC 94443) para Alejandro Juvenal Herbas Camacho Junior, condenado a oito anos e cinco meses de reclusão pelos crimes de roubo majorado e sequestro. A defesa de Alejandro pretendia anular a condenação pelo delito de sequestro, alegando que este crime seria um crime-meio para a consumação do roubo.

Alejandro Camacho foi condenado pelo roubo de dois carros em São Paulo. As vítimas foram mantidas dentro dos veículos e depois amarradas e mantidas sob vigilância em uma mata. Para a defesa, houve ofensa ao principio da correlação entre a denúncia e a sentença penal condenatória – uma vez que a inicial acusatória não imputa ao paciente o delito de sequestro.

Para o relator do HC, ministro Ayres Britto, a denúncia narrou detalhadamente todos os fatos ensejadores da condenação do paciente. Fatos, todavia, que receberam do juízo processante classificação jurídica diversa daquela dada pelo órgão acusatório, nos termos do art. 383 do Código de Processo Penal. Concluiu, assim, que o caso é de emendatio libelli (correção da inicial) e não de mutatio libelli (em que se altera o próprio fato imputado ao acusado).

O relator afastou, também, a pretensão da defesa de reconhecimento da absorção do sequestro pelo crime de roubo majorado, pois as instâncias precedentes assentaram quadro fático indicativo de que a restrição da liberdade das vítimas não operou como meio para a subtração patrimonial.

O relator foi acompanhado em seu voto pela ministra Cármen Lúcia Antunes Rocha e pelo presidente da Turma, ministro Ricardo Lewandowski.

Os ministros Marco Aurélio e Dias Toffoli divergiram do relator. Segundo Marco Aurélio, o MPE foi explícito no pedido de condenação, pelos crimes de roubo qualificado e quadrilha. Para estes dois ministros, o que houve no caso não foi uma emendatio libelli, mas sim uma mutatio libelli – uma mudança do que existe na peça inicial, que deve ser feita pelo MP, conforme prevê o Código de Processo Penal (CPP), e não pelo juiz.

Previsão legal

A emendatio libelli está prevista no artigo 383 do CPP: “O juiz, sem modificar a descrição do fato contida na denúncia ou queixa, poderá atribuir-lhe definição jurídica diversa, ainda que, em consequência, tenha de aplicar pena mais grave”.

Já a mutatio libelli consta do artigo 384 do mesmo código. “Encerrada a instrução probatória, se entender cabível nova definição jurídica do fato, em consequência de prova existente nos autos de elemento ou circunstância da infração penal não contida na acusação, o Ministério Público deverá aditar a denúncia ou queixa, no prazo de 5 (cinco) dias, se em virtude desta houver sido instaurado o processo em crime de ação pública, reduzindo-se a termo o aditamento, quando feito oralmente.

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