QUESTÃO ERRADA: Durante uma festa, após desentendimentos entre Carlos e Miro, este proferiu xingamentos racistas contra aquele, o que levou Carlos a empurrar seu agressor, que caiu em uma mesa de vidro. Com o forte impacto, a mesa se despedaçou completamente e seus cacos causaram cortes profundos por todo o corpo de Miro. Os convidados ligaram para a polícia e para o corpo de bombeiros: Carlos foi preso em flagrante e Miro foi encaminhado ao hospital, onde ficou internado por cinco dias, com risco de morte; passou por procedimentos cirúrgicos e, posteriormente, teve de ficar afastado de sua atividade laboral por trinta e dois dias. O Ministério Público denunciou Carlos por lesão corporal de natureza grave. Nessa situação hipotética, a prisão em flagrante de Carlos foi legal, não sendo possível a concessão de liberdade provisória pela natureza do crime.
A questão é dividida em duas partes:
a) legalidade da prisão em flagrante: certa a assertiva, até porque não há elementos para considerá-la ilegal.
b) impossibilidade de liberdade provisória: errada, pois todos os crimes admitem liberdade provisória; a questão é se será com ou sem fiança, o que dependerá de previsão legal neste sentido. Basta lembrar que a liberdade provisória é a medida que combate a prisão em flagrante legal. No mais, tanto STJ quanto STF entendem que é ilegal/inconstitucional a pura e simples vedação à liberdade provisória.
QUESTÃO CERTA: Em determinada comarca de um estado da Federação, em razão de uma denúncia anônima e após a realização de diligências, a polícia civil prendeu Maria, de dezoito anos de idade, que supostamente traficava maconha em uma praça nas proximidades da escola pública onde ela estudava. Levada à delegacia de polícia local, Maria foi autuada e indiciada. Depois de reunidos elementos informativos suficientes, o delegado elaborou um relatório com a descrição dos fatos, apontando os indícios de autoria. Com o encerramento das investigações, o inquérito policial foi encaminhado à autoridade competente. Considere, ainda, que as seguintes informações sejam adicionais à situação hipotética descrita no texto 1A2AAA. Maria foi submetida a prisão preventiva pela suposta prática de tráfico de maconha, cuja pena prevista é de cinco a quinze anos de reclusão. Em atenção à determinação legal, tal prisão foi comunicada ao órgão da Defensoria Pública que atua na seara criminal local e, após isso, um defensor público requereu a liberdade provisória de Maria à autoridade judicial. Nessa situação hipotética, a liberdade provisória: é cabível, por se tratar de tráfico de droga ilícita.
QUESTÃO CERTA: Um cidadão penalmente imputável foi preso em flagrante delito pela prática de crime hediondo. Nessa situação, é vedada a concessão de fiança ao autuado, mas não será proibido o deferimento de liberdade provisória.
O STF declarou inconstitucional a vedação da liberdade provisória contida no art. 44 da lei 11.343/2006, portanto é permitido.
O STF já se pronunciou sobre a concessão de Liberdade Provisória na Lei, declarando inconstitucional a sua vedação.
Resumindo: Ainda que a Lei dos Crimes Hediondos proíba quem define é juiz no caso concreto, não podendo a LEI invadir a competência do magistrado. Detalhe: Mesmo o crime sendo inafiançável.
Nesse caso trata-se de crime equiparado à hediondo.
QUESTÃO ERRADA: Ausentes os requisitos para a decretação da prisão preventiva, é admissível a concessão de liberdade provisória aos crimes hediondos mediante o arbitramento de fiança.
Incorreta. É tranquilo no STF o entendimento de que a concessão de Liberdade provisória em crimes hediondos, embora possível, não permite arbitramento de fiança, pois os crimes são inafiançáveis.
QUESTÃO ERRADA: A liberdade provisória não pode ser concedida a acusados de tráfico de entorpecentes.
Recurso extraordinário. 2. Constitucional. Processo Penal. Tráfico de drogas. Vedação legal de liberdade provisória. Interpretação dos incisos XLIII e LXVI do art. 5º da CF. 3. Reafirmação de jurisprudência. 4. Proposta de fixação da seguinte tese: É inconstitucional a expressão e liberdade provisória, constante do caput do artigo 44 da Lei 11.343/2006. 5. Negado provimento ao recurso extraordinário interposto pelo Ministério Público Federal. (STF, RE 1038925 RG / SP – REPERCUSSÃO GERAL, Plenário, rel. Min. Gilmar Mendes, j. 18/08/2017)
É inconstitucional o art. 44 da Lei 11.343/2006 na parte em que proíbe a liberdade provisória para os crimes de tráfico de drogas. Assim, é permitida a liberdade provisória para o tráfico de drogas.
Assim, é permitida a liberdade provisória para o tráfico de drogas, desde que ausentes os requisitos do art. 312 do CPP. (STF. Plenário. HC 104339/SP, Rel. Min. Gilmar Mendes, julgado em 10/5/2012).
A vedação de liberdade provisória para os acusados por crimes de tráfico de drogas é inconstitucional.
STF reafirma inconstitucionalidade da regra que proíbe liberdade provisória a presos por tráfico de drogas
O Supremo Tribunal Federal (STF) reafirmou sua jurisprudência no sentido da inconstitucionalidade de regra prevista na Lei de Drogas (Lei 11.343/2006) que veda a concessão de liberdade provisória a presos acusados de tráfico. A decisão foi tomada pelo Plenário Virtual no Recurso Extraordinário (RE) 1038925, com repercussão geral reconhecida.
QUESTÃO ERRADA: É vedada a concessão de liberdade provisória a autor de crime inafiançável.
Art. 310. Ao receber o auto de prisão em flagrante, o juiz deverá fundamentadamente: […]
III – conceder liberdade provisória, COM ou SEM fiança.
A impossibilidade de pagar fiança em determinado caso não impede a concessão de liberdade provisória, pois são institutos diferentes.
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