Acórdão nº 12351/15 de Tribunal Central Administrativo Sul, 30 de Junho de 2016
Magistrado Responsável: | ANTÓNIO VASCONCELOS |
Data da Resolução: | 30 de Junho de 2016 |
Emissor: | Tribunal Central Administrativo Sul |
Acordam, em Conferência , na Secção de Contencioso Administrativo, 2º Juízo , do Tribunal Central Administrativo Sul: Maria ……………………., Maria José ……………… e Maria Luísa ………………… , com sinais nos autos, inconformadas com a sentença do TAF de Beja, proferida em 13 de Maio de2015, no âmbito da acção administrativa comum, sob a forma ordinária, por elas instaurada contra o Estado Português, que julgou verificadas as excepções de prescrição e, em consequência, absolveu o Réu do pedido contra ele formulado, de condenação, a título principal, no pagamento de € 77.822,45, acrescido de juros, com fundamento em responsabilidade civil extracontratual, ou, subsidiariamente, no pagamento de € 75.409,00, acrescido de juros, com fundamento no enriquecimento sem causa, dela recorreram e em sede de alegações formularam .
“1- As recorrentes foram notificadas em 27/01/2005 do despacho conjunto da atribuição da indemnização da Reforma Agrária, onde se incluía a parcela de 10,1307ha do prédio …………, cedida à …………...
2- As recorrentes não impugnaram contenciosamente o despacho conjunto de atribuição da indemnização, uma vez que se o fizessem o recorrido Estado só pagaria a indemnização com a decisão transitada em julgado do recurso de impugnação.
3- As recorrentes em 4/07/2005 instauraram per saltum para o Tribunal Europeu dos Direitos do Homem a acção de indemnização contra o recorrido Estado.
4- Na acção instaurada no Tribunal Europeu, as recorrentes formularam contra o recorrido Estado o mesmo pedido e causa de pedir da presente acção, ou seja, a condenação do recorrido Estado ao pagamento da indemnização devida pela expropriação da parcela do prédio .............
5- A interrupção da prescrição constitui um princípio geral que assenta na manifestação e intenção clara e inequívoca do titular em exercer o seu direito.
6- Por decisão do Tribunal Europeu de 16/12/2008 o recorrido Estado apenas foi condenado ao pagamento de uma indemnização às recorrentes pelo atraso no pagamento da indemnização.
7- Em 12/11/2009 as recorrentes instauraram a presente acção contra o recorrido Estado.
8- Na presente acção as recorrentes alegam que, na acção instaurada no Tribunal Europeu reclamaram do recorrido Estado o pagamento da indemnização devida pela expropriação da parcela em causa.
9- A acção instaurada no Tribunal Europeu interrompeu o prazo de prescrição de três anos para demandar o Estado, previsto no art. 498º nº 1 do C.C..
10- A interrupção da prescrição verificou-se com a citação em 5/07/2007 do recorrido Estado pelo Tribunal Europeu para pagar a indemnização reclamada pelas recorrentes da parcela expropriada, art. 323º nº 1 do C.C..
11- A douta sentença recorrida violou entre outros os arts 323º e 498º do C.C..
Nestes termos e nos demais de direito aplicáveis, deverá ser julgado procedente o presente recurso, ordenando-se o prosseguimento do processo.” * O Recorrido contra-alegou pugnando pela manutenção do decidido.
* Colhidos os vistos legais vem o processo submetido à conferência para julgamento. * Cumpre apreciar e decidir as questões colocadas pelas Recorrentes, sendo certo que o objecto do recurso se acha delimitado pelas conclusões das respectivas alegações, nos termos dos arts 608º nº 2, 5º nº 2 , 635º nº 3 e 639º nº 1, todos do CPC, ex vi artº 140º do CPTA.
As questões suscitadas no presente recurso resumem-se a saber se a decisão judicial impugnada, ao julgar procedente a excepção da prescrição do direito de indemnização e do direito de restituição do indevido, e, em consequência, ao absolver o R. do pedido formulado (a título principal ou a título subsidiário) na presente acção administrativa comum, incorreu, ou não, em erro de julgamento...
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