Deferido Habeas Corpus Para Advogados Terem Acesso À Investigação Do Mpf

Foi deferido parcialmente, por unanimidade, o Habeas Corpus (HC) 88190, impetrado no Supremo Tribunal Federal (STF) pelos advogados do empresário H.C.A., do ramo de importação e exportação, contra negativa do Superior Tribunal de Justiça (STJ) em autorizar o acesso da defesa aos autos de investigação em curso no Ministério Público Federal (MPF).


A defesa alega que seu cliente foi informado, por notícia veiculada na imprensa, sobre investigação que estaria sendo realizada pelo MPF “para apurar supostos indícios de superfaturamento e lavagem de dinheiro na empresa do paciente“. Em seguidos pedidos de acesso aos documentos da investigação, tanto o MPF como a Procuradoria Geral da República no Estado do Rio de Janeiro (PGR-RJ) não permitiram a vista dos autos pelos advogados.


Foi então impetrado habeas corpus, para permitir o acesso aos autos pela defesa de H.C.A., no Tribunal Regional Federal da 2ª Região (TRF-2), que não o conheceu. Também o STJ não deferiu habeas ali impetrado para determinar o julgamento do habeas pelo TRF-2 ou proceder ao trancamento do processo investigatório do MPF.


A PGR-RJ informou ao ministro Cezar Peluso, relator da matéria, que não existiria investigação naquela entidade contra o empresário, mas somente “peças de informação enviadas pelo Banco Central, que estão em análise. A vista dos autos de informação neste momento leva ao absurdo do paciente ter conhecimento da prova antes do órgão acusador e fora dos auto judiciais“.


Para a PGR, não estaria havendo cerceamento de defesa, mas apenas o aguardo do “momento do contraditório, como forma de garantir o sigilo, previsto na Constituição Federal, de forma a evitar o uso indevido das informações“. A PGR argumentou ainda que, de acordo com a Súmula 691/STF, não competiria ao STF conhecer de habeas impetrado contra decisão do relator que indefere liminar em HC em tribunal superior.


O ministro Cezar Peluso disse que, ao conceder a liminar, admitiu exceção à aplicação da Súmula 691, “nos casos de flagrante constrangimento ilegal, que é a hipótese“. Citando jurisprudência da Corte e o inciso LXIII, artigo 5º da Constituição, o relator disse que não se pode negar ao indiciado, mesmo em procedimento investigatório por órgão do Ministério Público, a assistência técnica do advogado, que só pode ser realizada se lhe for dado acesso aos autos do inquérito em que o investigado terá de prestar declarações.


Peluso declarou ainda que ao se juntar documentos ao processo investigatório, eles se submetem ao princípio da comunhão da prova, tendo o defensor do investigado o direito de conhecê-los. Além disso, a Lei nº 8.906/94 (Estatuto da Ordem dos Advogados) diz que é direito do advogado examinar, em qualquer repartição policial, os autos de inquérito, mesmo em andamento.


Ao deferir o habeas, Peluso disse que se trata de investigação iniciada em 2004, que a imprensa já teve acesso, mas o paciente não. O deferimento foi unicamente para garantir aos advogados do empresário o direito de acesso, no que lhe diga respeito, aos autos do procedimento em trâmite na PGR-RJ, observando que esse direito se restringe, apenas, às informações já formalmente documentadas nos autos. A Segunda Turma acompanhou o relator por unanimidade.

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