O Que É Requisição Administrativa? (Com Exemplos)

Por
Pedro Santos
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583
3959

Chegou a hora de falarmos da “Requisição Administrativa” – uma das formas de intervenção do Estado sobre a propriedade privada. O Que É A Requisição Administrativa? Você sabe?

Muito provavelmente, o (a) leitor (a) lembra dos filmes da Sessão da Tarde em que um policial mandava um motorista parar, exigia que o condutor descesse do automóvel e empregava o veículo requisitado para perseguir um bandido.

A Requisição Administrativa apresenta-se sob diferentes modalidades, incidindo sobre bens, móveis (como carros e motos) ou imóveis (como um apartamento), ou sobre serviços.

A indenização só ocorre se há danos aos bens (não há pagamento prévio de dinheiro como no caso da desapropriação). O Estado fundamenta a sua decisão em necessidade pública inadiável e urgente.

Algumas características da servidão administrativa: ato unilateral, auto-executório e oneroso.

A Servidão Administrativa serve para atender necessidades coletivas em tempo de guerra ou em caso de perigo público eminente.

A Servidão Administrativa é diferente da ocupação temporária (clique aqui para conferir) e da desapropriação (clique aqui para conferir). Para Di Pietro, é a forma de limitação à propriedade privada e de intervenção estatal no domínio econômico.

Segundo o Estratégia Concursos:

“o fundamento legal, quando recai sobre bens imóveis, para a requisição, é o artigo 5° XXV da CF/1988:

XXV – no caso de iminente perigo público, a autoridade competente poderá usar de propriedade particular, assegurada ao proprietário indenização ulterior, se houver dano.

A requisição administrativa não ocorre definitivamente, mas sim transitoriamente.

A requisição administrativa pode ser civil ou militar. A requisição militar objetiva o resguardo da segurança interna e a manutenção da soberania nacional, diante de conflito armado, à saúde e aos bens da coletividade, diante de inundação, incêndio, sonegação de gêneros de primeira necessidade, epidemias, catástrofes etc.”.

Observe que a CF fala de propriedade particular – não fala de propriedade / bem pública (o)! Muito atenção aos detalhes!

Confira o seguinte trecho da Constituição Federal do nosso país:

Constituição Federal:

Art. 22. Compete privativamente à União legislar sobre:

III – requisições civis e militares, em caso de iminente perigo e em tempo de guerra;

Somente a União pode criar leis sobre requisição, seja ela civil ou militar.

FCC (2019):

QUESTÃO CERTA: De acordo com o que estabelece a Constituição Federal de 1988: no caso de iminente perigo público, a autoridade competente poderá usar de propriedade particular, assegurada ao proprietário indenização ulterior, se houver dano.

CEBRASPE (2018):

QUESTÃO CERTA: Requisição é o instrumento correto a ser usado no caso de a polícia ter de ocupar as instalações de determinado estabelecimento no curso de operação policial.

É o caso de, por exemplo, se valer da casa de um vizinho de um traficante, de forma temporária, para observar as atividades ilícitas do criminoso.

FUNCAB (2012):

QUESTÃO CERTA: A requisição Administrativa é a modalidade de intervenção estatal através da qual o Estado utiliza bens móveis, imóveis e serviços particulares em situação de perigo público iminente.

CEBRASPE (2017):

QUESTÃO ERRADA: Requisição é a modalidade de intervenção do Estado supressiva de domínio, incidente sobre bens móveis e imóveis, públicos ou privados, e, em regra, sem posterior indenização.

ERRADA. A palavra supressiva implica em desaparecimento. Requisição é modalidade de intervenção do Estado RESTRITIVA de domínio, não supressiva. A requisição não atinge bens públicos, somente bens PRIVADOS. Há posterior indenização somente em caso de haver dano no bem decorrente da requisição. Podem ser requisitados bens móveis e imóveis.

IBFC (2017):

QUESTÃO CERTA: A proteção ao meio ambiente não é uma hipótese de verificação da requisição administrativa.

CEBRASPE (2017):

QUESTÃO CORRETA: Um policial andava pela rua quando presenciou um assalto. Ao ver o assaltante fugir, o policial parou um carro, identificou-se ao motorista, entrou no carro e pediu que ele perseguisse o criminoso. Nessa situação, conforme a CF e a doutrina pertinente, tem-se um exemplo típico da modalidade de intervenção do Estado na propriedade privada denominada requisição.

FUNRIO (2017):

QUESTÃO CERTA: A Constituição Federal garante, em seu art. 5º, XXV, que no caso de iminente perigo público, a autoridade competente poderá usar de propriedade particular, assegurada ao proprietário indenização ulterior, se houver dano. Diante disso, a modalidade de restrição sobre a propriedade privada prevista no dispositivo constitucional é a requisição administrativa.

FCC (2019):

QUESTÃO CERTA: Será compatível com a disciplina dos direitos e garantias fundamentais na Constituição Federal a: utilização, pela autoridade competente, de propriedade particular, no caso de iminente perigo público, assegurada ao proprietário indenização posterior, se houver dano.

CEBRASPE (2016):

QUESTÃO CERTA: A CF, em seu artigo 5.º, XXII, garante o direito de propriedade; no inciso XXIII do mesmo artigo, condiciona o exercício desse direito ao atendimento da função social. Acerca da intervenção do Estado na propriedade privada, a requisição é modalidade de intervenção em que o Estado utiliza propriedade particular no caso de perigo público iminente.

A Requisição é o instrumento de intervenção estatal mediante o qual, em situação de perigo público iminente, o Estado utiliza bens móveis, imóveis ou serviços particulares com indenização ulterior, se houver dano. A requisição administrativa pode ser civil ou militar. A requisição militar objetiva o resguardo da segurança interna e a manutenção da soberania nacional, diante de conflito armado, à saúde e aos bens da coletividade, diante de inundação, incêndio, sonegação de gêneros de primeira necessidade, epidemias, catástrofes etc.

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CEBRASPE (2019):

QUESTÃO ERRADA: Em caso de iminente perigo público, autoridade pública competente poderá usar a propriedade particular, desde que assegure a consequente indenização, independentemente da comprovação da existência de dano, que, nesse caso, é presumido.

É preciso que o policial danifique os retrovisores do carro tomado, para que o condutor faça jus à indenização.

CEBRASPE (2016):

QUESTÃO ERRADA: A requisição administrativa é definitiva, e deve ser precedida de indenização paga em dinheiro.

Ela não é definitiva. É temporária. Lembre-se: acabou a perseguição contra o bandido, o automóvel é devolvido ao seu verdadeiro dono. Além disso, como já vimos acima, não é precedida de indenização paga em dinheiro (esse é o caso da desapropriação).

CEBRASPE (2013):

QUESTÃO CERTA: Considere que um imóvel particular localizado em área de grande circulação seja objeto de requisição pela prefeitura para o atendimento de necessidades coletivas urgentes e transitórias. Nessa situação: ocorrerá utilização coativa por ato de execução imediata e direta da autoridade requisitante.

“Requisição é o instrumento de intervenção estatal mediante o qual, em situação de perigo público iminente, o Estado utiliza bens móveis, imóveis ou serviços particulares com indenização ulterior, se houver dano. Na lição do Prof. Hely Lopes, a requisição é a utilização coativa de bens ou serviços particulares pelo Poder Público por ato de execução imediata e direta da autoridade requisitante e indenização ulterior, para atendimento de necessidades coletivas urgentes e transitórias.”

Fonte: Marcelo Alexandrino e Vicente Paulo, Direito Administrativo Descomplicado, 21ªed, pág. 1011.

CEBRASPE (2016):

QUESTÃO CERTA: A requisição administrativa é direito pessoal da administração pública, incidindo sobre bens móveis, imóveis e serviços.

CEBRASPE (2016):

QUESTÃO ERRADA: A indenização é devida somente no caso de requisição administrativa de bens imóveis, condicionada à existência de prejuízo ou dano.

Só há indenização se há danos, mas ela independe do tipo de bem.

CEBRASPE (2016):

QUESTÃO ERRADA: Da requisição administrativa, cujo pressuposto é unicamente o interesse público, resulta indenização, sempre ulterior.

Mais uma questão que insiste com o pagamento “obrigatório” de indenização.

CEBRASPE (2016):

QUESTÃO ERRADA: Para a ocorrência da requisição administrativa, um direito real da administração pública, basta o interesse público.

“Aqui, há dois equívocos. O primeiro, reside em afirmar que a requisição administrativa seria direito real, quando, na verdade, constitui direito pessoal. E o segundo repousa na assertiva de que, para ser decretada, bastaria o interesse público, quando, a rigor, faz-se imprescindível uma situação de perigo público iminente”.

CEBRASPE (2015):

QUESTÃO CERTA: A requisição, modalidade de intervenção estatal que ocorre em situação de perigo público iminente, abrange tanto bens móveis quanto bens imóveis e serviços particulares.

“Requisição é o instrumento de intervenção estatal mediante o qual, em situação de perigo público iminente, o Estado utiliza bens móveis, imóveis ou serviços particulares com indenização ulterior, se houver dano. (Art.5 XXV, CF – no caso de iminente perigo público, a autoridade competente poderá usar de propriedade particular, assegurada ao proprietário indenização ulterior, se houver dano)”.

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