Acórdão nº 0043085 de Court of Appeal of Lisbon (Portugal), 16 de Março de 1993
Magistrado Responsável | COSTA FIGUEIRINHAS |
Data da Resolução | 16 de Março de 1993 |
Emissor | Court of Appeal of Lisbon (Portugal) |
N Privacidade: 1 Meio Processual: REC PENAL.
Decisão: PROVIDO.
Área Temática: DIR CRIM. DIR PROC PENAL.
Legislação Nacional: DL 433/82 DE 1982/10/27 ART9 N2 ART19 ART33 ART34 N1 ART35 N1 A ART36 ART37. CADM40 ART408 PAR1 PAR2. DL 417/83 DE 1983/11/25 ART3 N1. RGU POLICIAL DE 1924. EDITAL 67/84 DE 1984/10/26 IN D MUNICIPAL DE 1984/11/12.
Sumário: I - Tendo-se provado somente que o Bar estava a funcionar pela 1,25 hora, e a arguida tinha licença de funcionamento até às 0 horas; que o Regulamento Policial é de 1924; que o Decreto-Lei 417/83 estatui, na esteira do anteriormente previsto sobre o período de abertura dos estabelecimentos; que o âmbito de aplicação e finalidades desses diplomas são manifestamente diversos, como resulta até do que agora expressamente se dispõe no art. 5 do DL 417/83, será de concluir que a arguida não agiu com erro sobre a proibição, nem sem consciência da ilicitude do facto, mas limitou-se a pretender fazer vingar temerariamente uma jurisprudência incorrecta de dois Juízes do Tribunal de Polícia de Lisboa. De qualquer modo, a haver erro sobre a ilicitude, este seria censurável (art. 9, n. 2 DL 433/82, de 27 de Outubro). II - No despacho, confunde-se inexistência jurídica com incompetência; trata-se, porém, de realidades diversas; e aqui não se verifica a inexistência jurídica da decisão e o Governador Civil era competente para aplicar a coima. Pois: a) a decisão cominativa da coima tem consistência jurídica; o Governador Civil é uma autoridade administrativa (art. 33), e, por isso, a sua decisão era susceptível de transitar...
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