Habeas Corpus Nº 133.463/rs

Habeas corpus. Tráfico de entorpecentes. Exame de dependência toxicológica. Indeferimento. Ausência de prova pré-constituída. Constrangimento ilegal não evidenciado. 1. Não havendo nos autos nenhum documento comprovando que o pedido de realização de exame de dependência toxicológica foi indeferido pelo magistrado singular, inviável a análise da plausibilidade jurídica do pleito, já que o procedimento sumário do habeas corpus não comporta dilação probatória, sendo imperiosa a prévia constituição da prova acerca do alegado constrangimento ilegal. Precedentes. PRISÃO EM FLAGRANTE. FRAGILIDADE DO CONJUNTO PROBATÓRIO. INOCÊNCIA. DESNECESSIDADE DA MANUTENÇÃO DA MEDIDA CONSTRITIVA. ANÁLISE EM SEDE DE HABEAS CORPUS. INVIABILIDADE. 1. Em razão do caráter sumário do rito previsto para o habeas corpus, desprovido de dilação probatória, inviável a análise da alegada fragilidade do conjunto probatório e inocência do paciente com o intuito de infirmar a manutenção da custódia cautelar. Precedentes. LIBERDADE PROVISÓRIA. INDEFERIMENTO. PACIENTE ACUSADO DE TRAFICÂNCIA. GARANTIA DA ORDEM PÚBLICA. PRESENÇA DO PERICULUM LIBERTATIS. VEDAÇÃO LEGAL À CONCESSÃO DO BENEFÍCIO. FUNDAMENTAÇÃO IDÔNEA E CONSTITUCIONAL. COAÇÃO ILEGAL NÃO DEMONSTRADA. ORDEM DENEGADA, 1. Não caracteriza constrangimento ilegal a manutenção da negativa de concessão de liberdade provisória ao flagrado no cometimento em tese do delito de tráfico de entorpecentes praticado na vigência da Lei 11.343/06, notadamente em se considerando o disposto no art. 44 da citada lei especial, que expressamente proíbe a soltura clausulada nesse caso, mesmo após a edição e entrada em vigor da Lei 11.464/2007, por encontrar amparo no art. 5º, XLIII, da Constituição Federal, que prevê a inafiançabilidade de tais infrações. Precedentes da Quinta Turma e do Supremo Tribunal Federal. 2. Ordem denegada.

Rel. Min. Jorge Mussi

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