Acórdão nº 35/15.9PESTB.E1-D.S1-A de Supremo Tribunal de Justiça, 03 de Dezembro de 2020
Magistrado Responsável: | CLEMENTE LIMA |
Data da Resolução: | 03 de Dezembro de 2020 |
Emissor: | Supremo Tribunal de Justiça |
Processo n.º 35/15.9PESTB.E1-D.S1-A Recurso de fixação de jurisprudência Acordam, precedendo conferência, no Supremo Tribunal de Justiça: I 1.
O arguido, AA, interpôs recurso extraordinário para fixação de jurisprudência do despacho proferido a 22 de Janeiro de 2020 pela Senhora Conselheira Vice-Presidente do Supremo Tribunal de Justiça, nos autos de reclamação de não admissão de recurso apensos ao processo em referência, ao abrigo do disposto no artigo 405.º, do Código de Processo Penal (despacho recorrido), cujo deciso afirma oposto à decisão proferida no acórdão, do Supremo Tribunal de Justiça, proferido a 27 de Janeiro de 2010 (acórdão fundamento), ambos certificados nos autos.
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Alega que ambas as decisões se pronunciaram sobre a mesma questão de direito – tal seja, de saber se, mantendo o Tribunal da Relação, em recurso interposto de condenação do arguido em pena de prisão não excedente a 8 anos, proferida em 1.ª instância, com redução embora da medida concreta da pena e com alteração parcial da matéria de facto, se verifica a dupla conforme condenatória que, nos termos do disposto na alínea f) do n.º 1 do artigo 400.º, do CPP, não consente recurso da decisão do Tribunal da Relação para o Supremo Tribunal de Justiça –, emitiram decisões contraditórias: o despacho recorrido no sentido da verificação de dupla conforma e da consequente irrecorribilidade, e o acórdão fundamento no sentido da inexistência de dupla conforme e da consequente admissibilidade do recurso interposto do acórdão do Tribunal da Relação.
Dando por violado o disposto nos artigos 432.º n.º 1 alínea b) e 400.º n.º 1 alínea f), do CPP, pede que o recurso seja provido «com as necessárias consequências legais».
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O Ministério Público neste Tribunal é de entender que o recurso não pode ser admitido, em vista do disposto no artigo 437.º n.os 1 e 2, do CPP, uma vez que um dos actos decisórios em oposição configura uma decisão singular.
II 4.
O artigo 437.º, do CPP (fundamento do recurso extraordinário para fixação de jurisprudência), dispõe nos seguintes termos: «1 - Quando, no domínio da mesma legislação, o Supremo Tribunal de Justiça proferir dois acórdãos que, relativamente à mesma questão de direito, assentem em soluções opostas, cabe recurso, para o pleno das secções criminais, do acórdão proferido em último lugar.
2 - É também admissível recurso, nos termos do número anterior, quando um tribunal de relação proferir acórdão que esteja em oposição com outro, da mesma ou...
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