Acórdão nº 320/10.6TCGMR-A.G1 de Tribunal da Relação de Guimarães, 17 de Janeiro de 2011
Magistrado Responsável: | MARIA AUGUSTA |
Data da Resolução: | 17 de Janeiro de 2011 |
Emissor: | Tribunal da Relação de Guimarães |
Acordam, em conferência, na Secção Criminal do Tribunal da Relação de Guimarães.
Foi distribuída à 2ª Vara Mista de Guimarães o Processo nº320/10.6TCGMR, no qual é arguido Luís …, acusado da prática de dois crimes de furto qualificado, p. e p. pelos artºs203º, nº1 e 204º, nº2, al.e), ambos do C.P..
Vem o Sr. Juiz José …, que exerce funções de juiz auxiliar naquela Vara, pedir a escusa alegando, em síntese, que tendo a sua casa de habitação sido assaltada em Setembro de 2009, «foi confrontado com uma informação provinda de uma entidade “oficial” a associar a pessoa do arguido No Processo nº320/10.6TCGMR.
ao evento ocorrido», havendo «o risco de se considerar que a sua intervenção seja, no caso, suspeita e de que de tal advenha desconfiança sobre a sua imparcialidade», tanto mais que «está em causa precisamente ilícito congénere àquele de que foi vítima, alegadamente praticado pelo aqui arguido».
Colhidos os vistos legais, cumpre decidir: Dispõe o artº43º do C.P.P. dispõe: 1. A intervenção de um juiz no processo pode ser recusada quando correr o risco de ser considerada suspeita, por existir motivo, sério e grave, adequado a gerar desconfiança sobre a sua imparcialidade.
2. (…) 3. (…) 4. O juiz não pode declarar-se voluntariamente suspeito, mas pode pedir ao tribunal competente que o escuse de intervir quando se verificarem as condições dos n.ºs1 e 2.
5. (…) A lei não enumera as causas geradoras de suspeição, antes “utiliza uma forma ampla, abrangente de todos os motivos que sejam adequados a gerar desconfiança sobre a imparcialidade do juiz” Germano Marques da Silva – Curso de Processo Penal I, pág.218.
.
Essas causas – de ordem subjectiva e/ou objectiva - têm de se materializar em motivos sérios e de tal modo graves adequados a gerar desconfiança sobre a imparcialidade do juiz Cfr. autor e obra citada, pág.219.
. E sendo esta um dever e uma obrigação inerentes à própria função (embora não se possa despojar da sua natureza humana, ao juiz exige-se que coloque a razão acima das paixões, interesses, simpatias, influências, ideologia e quaisquer outras causas alheias ao processo, para que, no dizer de Figueiredo Dias, reine uma atmosfera de pura objectividade e de incondicional juridicidade Direito Processual Penal – 1º Vol. – Coimbra Editora – 1974, pág.320.
), a gravidade e seriedade dos motivos invocados devem assentar em razões objectivas ou objectiváveis, consideradas na perspectiva do homem médio, do cidadão comum, não sendo abrangidas...
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