Negada Revogação Da Ordem De Prisão De “skinhead“ Gaúcho Acusado De Racismo E Assassinato

Com mandado de prisão expedido sob acusação de tentativa de homicídio qualificado (artigo 121, § 2º c/c o 14, II, do Código Penal), formação de quadrilha (artigo 288 do CP) e racismo (artigo 20 da Lei nº 7716/89), o skinhead gaúcho D.S.S.M. teve negado pedido de liminar formulado no Supremo Tribunal Federal (STF) no Habeas Corpus (HC) 99004.

Ele queria responder, solto, à ação penal contra ele movida pela Justiça de primeiro grau. Entretanto, ao decidir o pedido, o ministro Carlos Alberto Menezes Direito manteve decisão da Quinta Turma do Superior Tribunal de Justiça (STJ) , que negou idêntico pedido. Tentativa semelhante já fora anteriormente frustrada, também, por igual decisão do Tribunal de Justiça do estado do Rio Grande do Sul (TJ-RS).

Apreensão

Ao manter a ordem de prisão da Justiça de primeiro grau, o STJ considerou que a ordem de prisão de D.S.S.M. “encontra-se bem fundamentada” diante da gravidade dos delitos em tese cometidos por ele. Durante o crime, praticado por um grupo de skinheads em 16 de setembro de 2007, em Porto Alegre, contra um punk, D.S.S.M. teria agido “com extrema violência e por motivo torpe, isto é, imbuído de preconceito, já que é integrante confesso do movimento denominado skinhead”.

Dos autos consta que teriam sido apreendidos, na casa de D.S.S.M., DVDs e panfletos nazistas, artefatos para confeccionar bombas caseiras (prego, fita isolante, rojão), canivete de aço inox, um bastão de beisebol em madeira, um bastão de uso da Brigada Militar e uma soqueira de metal pontiagudo. Tal fato, segundo o ministro do STJ, revelaria “a periculosidade efetiva e o potencial risco que a ordem pública corre com a sua soltura”.

Alegações

Ao pedir a liminar, a defesa alegou que D.S.S.M. respondeu a todo o inquérito policial em liberdade, tendo sempre colaborado com as investigações policiais. Por isso, se insurgiu contra a aceitação, pela Justiça de primeiro grau, do pedido de prisão preventiva formulado pelo Ministério Público.

Alega, ainda, inexistirem, nos autos, “elementos que possam ser interpretados como motivadores da prisão preventiva, pois neles não há registro de eventual possibilidade de quebra da ordem pública ou indícios de comportamento que prejudique a instrução criminal, nem algo que se constitui prejuízo à aplicação da lei”.

Decisão

Após lembrar os argumentos do relator do HC negado pelo STJ, o ministro Menezes Direito indeferiu o pedido de liminar, observando não estar configurado o constrangimento ilegal alegado pela defesa.

Ele lembrou que a concessão de liminar em HC é “medida excepcional, cabível apenas quando a decisão impugnada estiver eivada de ilegalidade flagrante, demonstrada de plano”.

“Não se vislumbra, neste primeiro exame, nenhuma ilegalidade, abuso de poder ou teratologia que justifique o deferimento da liminar”, sustentou o ministro do STF. “Com efeito, o acórdão proferido pelo STJ encontra-se motivado a justificar a formação de seu convencimento”.

FK/IC

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