Apelação Criminal Nº 0004658-83.2008.404.7002/pr

Penal. Processo penal. Artigo 273, § 1º-b, do código penal. Importação ilegal de medicamentos falsificados, de procedência ignorada e/ou sem registro na anvisa. Lesividade. Risco à saúde pública. Enquadramento legal. Afastamento da pena da lei de tóxicos. A pena mínima de dez anos de reclusão para o crime previsto no art. 273 do Código Penal foi definida em regular processo legislativo, após debates parlamentares que evidenciaram a gravidade do delito, pelos riscos à saúde e à vida de pessoas vítimas do consumo de medicamentos falsificados, de procedência ignorada e/sem registro nos órgãos sanitários competentes. Compete ao Juiz do processo definir a capitulação jurídica do fato descrito na denúncia. Enquadrada a conduta do réu em determinado tipo penal, deve o Juiz aplicar-lhe a respectiva pena cominada, dosando-a entre os limites mínimos e máximos previstos, de acordo com os critérios definidos em lei, em face da apreciação das circunstâncias do caso concreto. Não pode o Juiz deixar de aplicar a pena prevista em lei para um determinado crime, sob o entendimento de que a sanção cominada lhe pareça excessiva ou desproporcional, pois a definição da pena em abstrato é atribuição do legislador. Não é cabível a junção da conduta descritiva de um tipo penal com a pena prevista no preceito secundário de outro tipo penal, porquanto implica criação de tertius legis, negando vigência ao dispositivo legal aplicável ao caso. Comprovado o cometimento do crime de importação irregular de grande quantidade de medicamentos, impõe-se o enquadramento da conduta no art. 273, § 1º-B, do Código Penal. Mantida a pena aplicada à ré, ante a impossibilidade de reformatio in pejus, na hipótese em que a acusação concordou com a sentença o ponto em que afastou a aplicabilidade do preceito secundário do art. 273 do Código Penal.

Rel. Des. Márcio Antônio Rocha

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