Acórdão nº 98P1231 de Supremo Tribunal de Justiça (Portugal), 15 de Dezembro de 1998 (caso NULL)
Magistrado Responsável | MARTINS RAMIRES |
Data da Resolução | 15 de Dezembro de 1998 |
Emissor | Supremo Tribunal de Justiça (Portugal) |
N Privacidade: 1 Meio Processual: REC PENAL.
Decisão: PROVIDO.
Área Temática: DIR CRIM - TEORIA GERAL.
Legislação Nacional: CP82 ART9. CP95 ART9 ART40 ART71 ART72 ART73. DL 401/82 DE 1982/09/23 ART4.
Sumário : I - A lesgislação especial a que se refere o artigo 9 do C.P. - quer na versão original (de 1982), quer na versão revista (de 1995) -, ao determinar que "Aos maiores de 16 anos e menores de 21 são aplicáveis normas fixadas em legislação especial" consta do DL 401/82, de 23 de Setembro, que tem subjacente uma preocupação de instituição de um direito mais reeducador que sancionador, com adopção preferencial de medidas correctivas, desprovidas de efeitos estigmatizantes e cujo artigo 4 prevê a atenuação especial da pena de prisão, nos termos dos artigos 73 e 74 do CP ao jovem condenado. II - No entanto, e como expressamente vem consignado no item 7 do preâmbulo do DL 410/82, "As medidas (neste diploma) propostas não afastam a aplicação - como última ratio - da pena de prisão aos imputáveis maiores de 16 anos, quando isso se torne necessário, para uma adequada e firme defesa da sociedade e prevenção da criminalidade, e esse será o caso de a pena aplicada ser a de prisão superior a dois anos"; e a aludida atenuação especial prevista no artigo 4 deste diploma subordina-a, o respectivo normativo, a "quando (o juiz) tiver sérias razões para crer que da atenuação resultem vantagens para a reinserção social do jovem condenado". III - Não poderia compreender-se, aliás, que, sem mais, o legislador abrisse mão das exigências, sobretudo, de prevenção geral positiva, em nome da predominância, aqui, de razões...
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