Acórdão nº 95/19.3JAPRT-C.G1 de Tribunal da Relação de Guimarães, 25 de Maio de 2020
Magistrado Responsável | PAULO SERAFIM |
Data da Resolução | 25 de Maio de 2020 |
Emissor | Tribunal da Relação de Guimarães |
Acordam, em conferência, os Juízes desta Secção Criminal do Tribunal da Relação de Guimarães: I – RELATÓRIO: ▪ No âmbito do Inquérito nº 95/19.3JAPRT, do Tribunal Judicial da Comarca de Vila Real, pelo Exmo. Juiz 1 do Juízo Local Criminal de Vila Real, no dia 25.09.2019 (referência 33677982), foi proferido despacho com o seguinte teor: «Alega a arguida que o despacho manuscritamente aposto no auto de busca e apreensão materializado nos autos a fls. 70/72 padece de irregularidade porquanto não se mostra fundamentado de facto e de direito, conforme impõe o disposto no art. 97º, nº5, do CPP.
Pronunciou-se o MP no sentido da improcedência da questão suscitada porquanto, a seu ver, a alusão à norma legal aplicável exaura, de forma suficiente, as exigências de fundamentação.
Subsidiariamente, para a hipótese de se entender verificada a arguida irregularidade, pugna pela sua convalidação, alegando que a “validação foi efectuada uma vez que a apreensão levada a cabo versou sobre instrumentos e produtos relacionados com a prática dos factos ilícitos típicos em investigação nestes autos e respeitou os formalismos legais previstos no artigo 178º do CPP”.
Decidindo.
Nos termos do disposto no art. 123º do Código de Processo Penal: “1. Qualquer irregularidade do processo só determina a invalidade do ato a que se refere e dos termos subsequentes que possa afetar quando tiver sido arguida pelos interessados no próprio ato ou, se a este não tiverem assistido, nos três dias seguintes a contar daquele em que tiverem sido notificados para qualquer termo do processo ou intervindo em algum ato nele praticado.
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Pode ordenar-se oficiosamente a reparação de qualquer irregularidade, no momento em que da mesma se tomar conhecimento, quando ela puder afetar o valor do ato praticado.” Resulta a fls. 70 dos autos, primeira página do auto de busca e apreensão de fls. 70/72, que nela se mostra manuscritamente aposto o despacho com o teor “valida-se a apreensão efectuada – art. 178º do CPP”.
Não vislumbramos que tal acervo decisório padeça do apontado vício, porquanto, ainda que de forma sucinta e remissiva, nele se mostram contidos os elementos indispensáveis à sua correcta apreensão/compreensão.
Na verdade, a validação remissiva para os termos do art. 178º do Código de Processo Penal, acolhe no próprio sentido comunicacional do despacho, as circunstâncias fáctico-normativas previstas no referido dispositivo legal.
Por outras palavras, a validação remissiva pressupõe que se consideram exauridos e preenchidos os pressupostos factuais previstos em tal dispositivo normativo.
Pelo que não se está perante a invocada irregularidade, o que determina que indefiramos o requerido, o que se faz.
Ainda, porém, que assim não se entendesse, a declaração aposta no último parágrafo do despacho datado de 2019.07.15, sempre tempestivamente (porquanto imediatamente perante a inovadora perspectiva da ocorrência do vício) surtiria o efeito de convalidação a que alude o nº2 do art. 123º do Código de Processo Penal.
Notifique.» ▪ Inconformada com tal decisão do Mmo. Juiz (de Instrução), dela veio a arguida F. T.
interpor o presente recurso, que contem motivação e culmina com as seguintes conclusões e petitório: «1. É da competência exclusiva do M° P° a sanação das irregularidades processuais que cometa em inquérito.
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É essa a questão dos autos. O M° P° não fundamentou nem de facto nem do direito uma decisão sua e foi instado a fazê-lo.
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Aparece, na sequência, o Sr. Juiz a quo a pronunciar-se sobre tal matéria quando não tem competência funcional para tanto, por a dele se restringir, em...
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