A facilidade do aprisionamento no mundo jurídico

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rp_luis-carlos-valois-e1455827251416.jpgLuís Carlos Valois
Juiz de direito, mestre e doutor em direito penal e criminologia pela Universidade de São Paulo, membro do Instituto Brasileiro de Ciências Criminais – IBCCrim e da Associação de Juízes para Democracia – AJD.

Machado Lima, promotor público nos Campos Gerais do Paraná, em 1860, em um caso de roubo, não encontrando provas suficientes para a condenação do negro Felício Pereira, pediu sua absolvição. O fato irritou tanto o juiz a ponto de o magistrado mandar registrar em ata que “suspendia a sessão de julgamento até que houvesse promotor competente” (BORBA, 1984, p. 117).

Os ânimos se exaltaram, o promotor não saiu mais do recinto, até que o juiz resolveu prender Machado Lima em flagrante por desobediência. Posteriormente, o promotor foi absolvido, mas amargou um tempo de cadeia.

De casos parecidos o passado e o presente da história do Brasil estão cheios. Ou o juiz inventa alguma represália contra o promotor que não quis prender alguém ou o promotor acha um meio para atacar o juiz que soltou quem ele, o promotor, achava que devia estar preso. Às vezes são juízes que processam juízes e promotores que processam promotores, mas sempre em prol da prisão, para se prender mais, para se evitar a soltura de quem quer que seja.

O comum é ambos, juízes e promotores, concordarem que aquela pessoa trazida algemada pela polícia e aquela indicada pelo delegado como culpada devem estar e serem mantidas presas. Quando a discordância entre prender e não prender se resolve com a prisão da pessoa, também dificilmente se vê um juiz atacando um promotor ou um promotor revidando contra o juiz.

A prisão, na prática judicial brasileira, parece mesmo a regra. As representações se repetem contra juízes e promotores que, em um caso ou outro, entenderam desnecessário o encarceramento, mas ninguém representa, processa ou acusa quem decide a favor da prisão, mesmo que o preso passe três, quatro, cinco anos entre grades e saia de lá absolvido.

A prisão é tão comum que, se o assunto for esse, a imprescindibilidade da prisão, com todos concordando, promotores e juízes podem sentar tranquilamente juntos antes ou depois da audiência para um cafezinho sem nenhum risco de que seus egos se exaltem. O único assunto ou pensamento proibido é a desnecessidade ou, mais grave, a prejudicialidade da prisão.

Não serão amigos. Amizades nesse nível de ego é muito difícil. Juízes e promotores, dentro da imagem de Schopenhauer, dos porcos espinhos no frio, precisando da aproximação para se aquecerem, são porcos espinhos de espinhos enormes. A proximidade é difícil, mas a prisão de alguém apazigua os ânimos.

 

Prender é algo tão fácil, tão banal, hoje em dia, que há modelos de pedido e de decretação de prisão. O delegado preenche um formulário para pedir, o promotor preenche o seu para dizer que é favorável, com o juiz preenchendo a decisão e o mandado para, voilà, mais um preso nesse caótico, lotado e promíscuo sistema penitenciário.

E o modelo não precisa lá de muita fundamentação, porque, se for para prender, o instinto fala mais alto dizendo que não haverá problema, pois, afinal, prisão é sempre precaução. É o que dizem. Prisão não é mais a perda da liberdade de uma pessoa, é o Estado se precavendo contra a culpa abstrata que paira sobre todos, podendo prender qualquer um com uma culpa um pouco mais realçada.

Há casos – pasme quem não é do direito e nunca ouvir falar – de reuniões entre delegados, juízes e promotores para combinar a melhor forma de expedição de um mandado de prisão ou um de busca e apreensão. Tudo combinado, só esquecem de convidar o advogado.

Infelizmente, falar de liberdade nos tribunais penais brasileiros é como falar de corda em casa de enforcado. Pode-se falar de prisão, regime fechado, disciplinar, diferenciado, mas da liberdade de alguém acusado é muito arriscado.

 

 

Referência

BORBA, Oney B. Preconceito e violência. Editora Lítero-técnica: Curitiba, 1984.

SCHOPENHAUER, Arthur. O mundo como vontade e como representação. São Paulo: UNESP, 2005.

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