Source: Domtotal – STF NEWS – 03/08/2010

By a majority vote, the First Panel of the Federal Supreme Court (STF) denied Habeas Corpus (HC 102864) to M.A.C., denounced in São Paulo for the crimes of fuel adulteration and ideological falsehood. The lawyers asked for the preventive detention decree to be revoked, but the ministers understood that the first instance judge's decision was duly substantiated.

M.A. was reported for fuel adulteration, an offense provided for in Law 8.176/91 and considered a crime against the economic order, and ideological falsehood, an offense provided for in article 299 of the Penal Code – crimes that would have been committed 122 times. According to the state Public Prosecutor's Office, together with other suspects, the defendant had moved more than R$8 million during the period investigated. The first-degree judge received the complaint and ordered M.A.'s preventive detention.

Against the prison decree, the defense appealed to the São Paulo Court of Justice and, later, to the Superior Court of Justice, with the order being rejected in both instances. Against the STJ's decision, the lawyers appealed to the STF, arguing, among other things, that for a complaint to be accepted, proof of the existence of a crime is necessary, and that in this case there would be no proof of adulterated fuel.

They also maintain that the complaint would make a generic allusion to the seriousness of the crime, having been based only on “factual conjectures and mere presumptions”, thus not meeting the constitutional requirement of reasons for judicial decisions.

Relator

In his vote, the rapporteur of the case, minister Ricardo Lewandowski, stressed that the decision that decreed preventive detention of M.A. is succinct but sufficient, since it would have adopted the ministerial quota in full. Furthermore, the minister pointed out, the first instance judge emphasized, in the decision, that the constriction measure was necessary to guarantee instruction, application of criminal law and guarantee public order. Among other factors, the minister revealed, the judge explained that even after the company's registration was revoked, the defendant, despite knowing this fact, continued to act.

For the rapporteur, what the first-instance judge noted in the decree to support the preventive detention order is legitimate, he concluded, voting to reject the request. Minister Dias Toffoli and Cármen Lúcia followed this position.

Divergence

Only minister Marco Aurélio disagreed with the rapporteur. For him, M.A. is, until now, a simple accused, and has, like every citizen, the constitutional franchises. In this sense, the minister recalled his understanding that preventive detention is always exceptional. “The rule is to investigate and then arrest, once the accused's guilt has been established”, said the minister when voting to grant the habeas corpus order.

MB/CG