Acórdão nº 034/19 de Tribunal dos Conflitos, 25 de Junho de 2020
Magistrado Responsável: | CARLOS CARVALHO |
Data da Resolução: | 25 de Junho de 2020 |
Emissor: | Tribunal dos Conflitos |
RELATÓRIO 1. A………… e outros, devidamente identificados nos autos [doravante AA.], intentaram primeiramente ação declarativa com processo comum, que denominaram de simples apreciação negativa, que correu termos sob o n.º 6455/17.7T8VNF no TJ da Comarca de Braga [Juízo Local Cível de Vila Nova de Famalicão - Juiz 3] contra B……….
, igualmente identificada nos autos [doravante R.], peticionando que esta fizesse «prova documental do direito a que se arroga sobre o … jazigo e sobre a sepultura onde depositou o cadáver do seu marido ...........» e de que não o fazendo fosse «declarada a inexistência do mesmo direito a que a R. se arroga».
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O TJ supra identificado proferiu decisão, datada de 01.10.2018 e oportunamente transitada em julgado, na qual julgando procedente a exceção dilatória de incompetência material declarou-se incompetente por entender que a mesma cabia aos tribunais da jurisdição administrativa [in casu, aos tribunais administrativos] e absolveu da instância a R. [cfr. fls. 34/37 v. dos presentes autos - tal como ulteriores referências a paginação], para tal considerando que o objeto da ação emergia de uma relação jurídico-administrativa visto estar em discussão direito relativo a jazigo situado em cemitério público em termos da existência de alvará que concede direito ao uso privativo e sua titularidade.
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Em face desta decisão os referidos AA. instauraram, então, no TAF de Braga contra a mesma R. idêntica ação declarativa, que correu termos sob o n.º 680/14.3BEBRG [entrada em 12.04.2019], formulando o mesmo pedido.
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O referido TAF proferiu decisão, datada de 30.04.2019, na qual, julgando verificada a exceção dilatória da sua incompetência material, declarou-se também ele incompetente para o julgamento da ação por entender que a mesma cabia aos TJ [cfr. fls. 26/27 dos presentes autos], para tal considerando que do objeto da ação não emergia uma qualquer relação jurídico-administrativa.
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Despoletado o conflito de jurisdição importa, com prévio envio do projeto aos Juízes Conselheiros nele intervenientes e colhidos os vistos legais, apreciar do mesmo, sendo que o Ministério Público [MP] emitiu parecer no sentido do presente conflito ser resolvido mediante a atribuição da competência aos TJ [cfr. fls. 48/49].
ENQUADRAMENTO E APRECIAÇÃO DO CONFLITO 6. Apreciando, assente o quadro circunstancial descrito no relatório antecedente, temos que mostra-se colocada a este Tribunal dos Conflitos a definição da jurisdição competente em razão da matéria para o julgamento da ação declarativa sub specie, ou seja, se a mesma caberá aos TJ ou, ao invés, aos tribunais da jurisdição administrativa e fiscal, in casu ao TAF de Braga.
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Apresenta-se como consensual o entendimento de que a competência do tribunal se afere de harmonia com a relação jurídica controvertida tal como a configura o demandante, sendo que a mesma se fixa no momento em que a ação é proposta, dado se mostrarem irrelevantes, salvo nos casos especialmente previstos na lei, as modificações de facto que ocorram...
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