2º Turma Mantém Ação Penal Contra Ex-diretor Da Bombril Acusado De Remessa Irregular De R$ 2,2 Bi Ao Exterior

Por votação unânime, a Segunda Turma do Supremo Tribunal Federal (STF) negou, nesta terça-feira (30), o Habeas Corpus (HC) 98840 ,em que J.A., ex-diretor Financeiro e de Relações com Investidores da Bombril S/A., acusado de crimes contra o Sistema Financeiro Nacional; de lavagem de dinheiro e quadrilha, pede trancamento da ação penal em curso contra ele na Justiça Federal em São Paulo.

Na denúncia, o Ministério Público Federal (MPF) baseou-se em dados do Banco Central segundo os quais J.A. seria o responsável, entre outros, pela remessa irregular para o exterior de R$ 2,223 bilhões, o que seria “a maior lavagem de dinheiro operada no Brasil a partir de uma única empresa”.

Esquema

Segundo a denúncia, o esquema se processava da seguinte forma: qualquer empresa que pretendesse enviar recursos ao exterior deveria fazer o depósito nas contas de algumas empresas de fachada, que o repassavam para a Bombril S.A. que, por sua vez, remetia o montante ao exterior sob o pretexto de ter adquirido títulos do Tesouro dos Estados Unidos (T-bills) e outros títulos de emissão própria. O MP acredita que referida negociação com títulos nunca existiu, tendo sido criada apenas para dar aparência de legitimidade ao fluxo de dinheiro.

Da denúncia consta, ainda, que as empresas Hard Sell Arquitetura Promocional Indústria e Comércio Ltda. e Logística Operações Promocionais e Eventos Ltda. supostamente mantinham contas correntes regulares no Brasil, com o único fim de receber depósitos de pessoas físicas ou jurídicas interessadas em remeter divisas ao exterior e, em seguida, transferiam tais recursos a crédito em conta corrente da Bombril S.A., junto ao Banco Bradesco que, posteriormente, realizava as transferências ao exterior.

O ex-diretor, ainda conforme a denúncia reproduzida na decisão do STJ, “era integrante desta quadrilha e responsável pelas operações ilícitas realizadas entre outubro de 2000 e junho de 2001. Portanto, a peça acusatória, na hipótese, apresenta uma narrativa congruente dos fatos”.

Alegações

A defesa alegou inépcia da denúncia, pois ela seria genérica e não teria descrito os fatos na sua devida conformação, nem individualizado a suposta ação do ex-diretor, sendo que atribuiria a mesma conduta a todos os denunciados no processo, também ex-diretores da Bombril. Para fundamentar a tese, afirma que J.A é citado, na denúncia, apenas três vezes, enquanto a Bombril foi mencionada em mais de 80 ocasiões. Ainda segundo a defesa, J.A. teria sido denunciado tão somente por figurar no contrato social da empresa, não sendo o real responsável pelas operações ilícitas.

O HC impetrado questionava decisão do Superior Tribunal de Justiça (STJ) que negou o pedido de trancamento da ação penal, também em HC. Contrariando argumento da defesa, aquela corte considerou que “a inicial acusatória preenche os requisitos exigidos pelo artigo 41 do Código de Processo Penal (CPP), contendo descrição exaustiva da atividade da quadrilha, indicando que esta produzia documentos forjados e realizava operações financeiras ilegais com o exterior, praticando, desta forma, crimes contra o sistema financeiro e lavagem de dinheiro”.

Em decisão de 28 de abril passado, o relator do HC no STF, ministro Joaquim Barbosa, indeferiu pedido de liminar nele formulado. E, no voto que proferiu hoje, pela denegação do pedido, endossou os argumentos do STJ. Segundo o ministro, “na inicial acusatória é demonstrada a existência de indícios suficientes dos delitos e da autoria por parte do paciente”, afirmou.

O relator observou que a denúncia contra J.A. e outros ex-diretores da Bombril é de caráter geral, o que é admitido pela jurisprudência do STF, ao contrário do que ocorre com a denúncia genérica. Segundo ele, conforme essa jurisprudência, basta que a denúncia narre, tanto quanto possível, os delitos, para possibilitar a defesa. Portanto, não há a alegada violação do artigo 41, do Código de Processo Penal (CPP), que estabelece os pressupostos da denúncia.

Em apoio a essa tese, Joaquim Barbosa citou os HCs 80812, relatado pelo ministro Gilmar Mendes; 84157, relatado pela ministra Ellen Gracie, e 74813, relatado pelo ministro Sydney Sanches (aposentado), além do Inquérito (INQ) 1578, relatado pela ministra Ellen Gracie.

O ministro Celso de Mello manifestou preocupação com esta tese, lembrando que, conforme a defesa, por ocasião da formulação da denúncia, ainda não teria havido resultado do inquérito policial instaurado para apurar os crimes imputados aos ex-dirigentes da Bombril. Diante da informação de Joaquim Barbosa de que o MP se baseara em informação do Banco Central, segundo as quais J.A. era o responsável pelas operações irregulares, Celso de Mello votou com o relator.

O advogado de defesa opôs que o BC afirmara apenas que J.A. era diretor da empresa, não, porém, responsável pelas operações. O ministro Joaquim Barbosa objetou, no entanto, observando que o HC não é via adequada para produção de provas e que a discussão a respeito deverá ocorrer no curso da ação penal.

Ele lembrou que o STF “tem decidido, reiteradamente, que o trancamento de ação penal por falta de justa causa ou por inépcia da denúncia, na via estreita do HC, somente é viável desde que se comprove, de plano, a atipicidade da conduta, a incidência de causa de extinção da punibilidade ou ausência de indícios de autoria ou de prova sobre a materialidade do delito, o que não se verifica neste caso”.

Ademais, segundo o ministro, julgados recentes da Corte “têm admitido ser dispensável, nos crimes societários, a descrição minuciosa e individualizada da conduta de cada acusado, bastando, para tanto, que ela narre a conduta delituosa de forma a possibilitar o exercício da ampla defesa”.

FK/IC

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