Acórdão nº 98P102 de Supremo Tribunal de Justiça (Portugal), 22 de Abril de 1998
Magistrado Responsável | VIRGILIO OLIVEIRA |
Data da Resolução | 22 de Abril de 1998 |
Emissor | Supremo Tribunal de Justiça (Portugal) |
N Privacidade: 1 Meio Processual: REC PENAL.
Decisão: PROVIDO.
Área Temática: DIR CRIM - CRIM C/PESSOAS.
Legislação Nacional: CP95 ART132 N1 N2.
Sumário : I - As circunstâncias exemplificativamente enunciadas no n. 2, do artigo 132, do C.Penal - de aplicação não automática -, em regra, tipicamente, indiciariamente, denunciam uma especial censurabilidade ou perversidade do agente. Do carácter exemplificativo da enunciação, conclui-se, seguramente que, por um lado, a existência, no caso concreto, de alguma ou algumas dessas circunstâncias não conduz necessariamente à especial censurabilidade ou perversidade da cláusula geral do n. 1, do mesmo dispositivo, e que, por outro lado, outras circunstâncias não catalogadas podem conduzir a essa especial censurabilidade ou perversidade. II - Isso não significa, porém, que as circunstâncias não previstas possam ser descobertas discricionariamente pelo julgador. Ainda aí, mormente em aplicação dos princípios do Estado de Direito, a relação do juiz não se estabelece com o n. 1, do cit. artigo 132, sem a mediação do seu n. 2; encerrando este, juízos de valor legais, no sentido do preenchimento da cláusula geral e conceitos indeterminados do n. 1, aquele n. 2 não pode deixar de ser tomado em conta na procura das circunstâncias qualificativas atípicas. Ou seja: o juízo judicial não está...
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