Habeas Corpus 113.945

Constitucional e processual Penal. Trafico de entorpecentes. Liberdade provisoria. Vedacao do art. 44 da lei de droga. Inconstitucionalidade. Precedente do plenario. Prisao preventiva. Gravidade Abstrata do delito. Fundamento insuficiente. Precedentes. Natureza e quantidade da droga apreendida. Fundamento Inidoneo. Inviabilidade de reforco da fundamentacao pelas Instancias superiores. Ordem concedida. 1. O Plenario do Supremo Tribunal Federal, no HC 104.339/SP (Min. GILMAR MENDES, DJe de 06.12.2012), em evolucao jurisprudencial, declarou a inconstitucionalidade da vedacao a liberdade provisoria prevista no art. 44 da Lei 11.343/2006. Entendeu-se que (a) a mera inafiancabilidade do delito (CF, art. 5o, XLIII) nao impede a concessao da liberdade provisoria; (b) sua vedacao aprioristica e incompativel com os principios constitucionais da presuncao de inocencia e do devido processo legal, bem assim com o mandamento constitucional que exige a fundamentacao para todo e qualquer tipo de prisao. 2. A gravidade abstrata do delito de trafico de entorpecentes nao constitui fundamento idoneo para a decretacao da custodia cautelar. Precedentes. 3. Nao cabe as instancias superiores, em sede de habeas corpus, adicionar novos fundamentos a decisao de primeiro grau, visando a suprir eventual vicio de fundamentacao. Precedentes. 4. Ordem concedida.

Rel. Min. Teori Zavascki

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