1.88 Atecnias relativas aos elementos acusatórios da portaria do Conselho de Disciplina
Autor | Eliezer Pereira Martins |
Ocupação do Autor | Sócio-administrador da Pereira Martins Advogados Associados. Especialista em direito com pesquisa em direito público |
Páginas | 236-236 |
Page 236
O § 2º do artigo 80 da LDPMESP dispõe que existindo concurso ou continuidade infracional, deverão todos os atos censuráveis constituir o libelo acusatório da portaria.
Pecou o legislador - mais uma vez - pela falta de técnica. O concurso ou continuidade a que se refere o dispositivo em apreço pode ocorrer com transgressões que não propiciem a perda da graduação, sendo incabível na espécie a inserção das mesmas na portaria do Conselho de Disciplina.
Outrossim, o dispositivo pode induzir o aplicador a inserir na portaria do Conselho de Disciplina, transgressões que já tenham sido objeto de processo e sanção não demissória, como na hipótese do Conselho de Disciplina instaurado em desfavor de policial militar com constantes faltas ao serviço, onde se indique na portaria todas as faltas já punidas acrescidas da falta mais recente, como motivo propiciador da demissão ou expulsão. Ora, nesta hipótese fica caracterizado o bis in idem, repudiado pelo ordenamento.
Também não se saiu bem o legislador ao sugerir a figura do "libelo acusatório" da portaria.
O "libelo acusatório" é peça autônoma cuja finalidade...
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