Excesso De Prazo De Prisão Cautelar Em Condenação Por Tortura Garante Hc A Procuradora

Em decorrência de excesso de prazo da prisão cautelar, a Primeira Turma do Supremo Tribunal Federal (STF) concedeu, de ofício, o Habeas Corpus (HC) 120436 para determinar a soltura de Vera Lúcia de Sant´Anna Gomes, procuradora de Justiça aposentada do Ministério Público do Estado do Rio de Janeiro, que poderá aguardar o julgamento de recursos em liberdade. Ela foi condenada por tortura envolvendo uma criança de dois anos, a qual pretendia adotar, e está presa preventivamente desde maio 2010.

Vera Lúcia Gomes foi condenada a 8 anos e 2 meses de prisão, inicialmente em regime fechado, com base no artigo 1º, inciso II, da Lei 9.455/1997, que define os crimes de tortura. Após diversos recursos, o último ainda pendente de análise pelo Tribunal de Justiça do Rio de Janeiro, a pena foi reduzida a 4 anos e 1 mês de reclusão. Como a sentença ainda não transitou em julgado, sua defesa ingressou com o HC contra decisão do Superior Tribunal de Justiça (STJ) para que ela possa aguardar em liberdade o julgamento dos recursos.

O relator do HC, ministro Luiz Fux, destacou que mesmo que a sentença original seja mantida, a procuradora já teria cumprido tempo da pena suficiente para a progressão de regime. Lembrou, ainda, que segundo a jurisprudência do STF, o habeas corpus não poderia funcionar como substitutivo de recurso ordinário contra a decisão do STJ, mas o excesso de prazo na prisão cautelar possibilita a concessão da ordem de ofício. “Ou a pena já está cumprida, ou ela já cumpriu grande parte da pena”, ressaltou o ministro ao conceder o habeas. A votação foi unânime.

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