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DRAFT law No. 48/X explanatory memorandum 1. To include in the reserve of legislative competence of the Assembly of the Republic the ' definition of the crimes, penalties, security measures and their assumptions, as well as (the) criminal process» [subparagraph (c)) of paragraph 1 of article 165], the Constitution recognizes that this organ of sovereignty, alongside the Government, has the authority to define criminal policy. Indeed, such a policy involves the selection of conduct that deserve to be criminalized in the light of the legal goods worthy and in need of guardianship, the weighting of the relevant sanctions and the procedural institutes forecast the gross weight of criminal responsibility. The reservation of law, as relevant expression of the principle of penal legality, determines that only laws of Parliament or decree-laws the Government authorized in precise terms of paragraph 2 of article 165 of the Constitution constitute suitable legislative acts in criminal matters. But the definition of criminal policy does not end in the adoption of criminal law. Being right – and even inevitable-that not all crimes are punished, even because of the limitation of resources available, the definition of priorities constitutes a significant part of that policy. So, despite the primacy of the principle of legality (paragraph 1 of article 219 of the Constitution), the code of criminal procedure includes fumes from a principle of ' opportunity mitigated», which determine the jus puniendi compression and are still compatible with the constitutional criminal law program. The provisional suspension of the process, the archive in case of exemption, the process accelerated, and the Court trial of processes for crimes punishable with imprisonment exceeding five years, upon request of the Prosecutor, are paradigmatic examples of this guidance. 2. The institutes of fun and consensus of the code of criminal procedure do not allow alone set priorities in criminal investigation and in the conduct of criminal proceedings. Such institutes depend on the initiative of the judicial authorities and require a case-by-case assessment, although subject to general criteria (to respect the principle of equality), about the punitive power. It is the very principle of democracy that prevent to be left to chance or entrusted to any pre-understanding the guidance of authorities that promote the criminal prosecution. On the plus side, it is this principle which requires the organs of sovereignty legitimized for the effect-the Assembly of the Republic and the Government to exercise its powers, outlining a policy that enshrines and prevention strategies of repression of crime and redress social and individual she caused. Paragraph 1 of article 219 of the Constitution also assumes, by the way, the definition of criminal policy by the organs of sovereignty, to prescribe that the Prosecutor take part in its implementation. And, in the case of the Government, responsibility for the general policy of the country (article 182 of the Constitution article) involves, of course, security and criminal policies. The definition of criminal policy is going to be an abstract, so as not to allow the handling of specific processes. On the other hand, is without prejudice to the principle of legality, in that it does not intend to nor allows, by itself, exempt any crimes of corresponding procedures or sanctions. It's just establishing objectives, priorities and guidelines, taking into account, in every moment, the main threats to legal goods protected by criminal law. And priorities must respect the valuations of the constitutional legislator, namely in terms of rights, freedoms and guarantees. Indeed, while a criminal law essentially liberal matrix, which rises as ultima ratio of criminal policy of the State, do not behave, by rule, criminality, the primacy of the Constitution generates a requirement for agreement between the constitutional and penal axiológicas orders, which affects the definition of criminal policy. 3. On the opposite pole-the so-called small-crime, the criminal policy setting allows the formulation of generic guidelines, through the types of crimes, on the provisional suspension of the process, the archive in case of exemption, the accelerated process, the Court trial procedures unique crimes punishable with imprisonment exceeding five years and other legally prescribed regimes. But these guidelines do not question the requirement of verification of the legal requirements of each of these institutes or dispense the weighting, the competent judicial authorities, an opportunity of its application on a case by case basis (even if not compatible within the framework outlined by the guideline). It is, thus, of simple programmatic statements. The recipient of the guidelines on the small crime prosecutors, as holder of the prosecution, since it depends on the initiative of resorting to so-called mechanisms of opportunity. Anyway, is the principle of legality and are safeguarded the independence of the courts and the independence of the Prosecutor — being excluded from handling any processes —, since this always will assess, in particular, the relevance of each promotion. 4. In accordance with this framework law, criminal policy priorities are defined for each of the titles in the special part of the Penal Code and the criminal law and can spare to take into account a multiplicity of criteria: the well protected, which blocked the legal systematization of the Penal Code; the legal type of crime; the execution mode (involving, for example, the means used and the number of agents involved); the result; the individual and social harm; the penalty. These criteria are used, individually or together, bearing in mind the foremost objective of criminal policy: the defense of legal goods, proclaimed as the first purpose of criminal sanctions by the Penal Code and legitimized by the principle of necessity of the penalties and security measures (paragraph 2 of article 18 of the Constitution). A biennial for the definition of the objectives, priorities and criminal policy guidelines. A longer period, perhaps coinciding with the four years of the legislature, would not accompany mutations that take place on security and crime. Another alternative – a weighted annual definition-was also sidelined for appears insufficient to follow cycles of criminal investigation and judicial process. Still, the possibility of introducing changes before exhausted the period of two years, when you start a parliamentary term or substantially change the circumstances that founded the adoption of the resolution, including, in this last hypothesis, a species of clausula rebus sic stantibus clause. 5. Being responsible for the general policy of the country, the Government takes the initiative to draw up the proposed objectives, priorities and guidelines, after listening to the Superior Council of the Magistracy, the High Council of the Public Ministry, the Coordinating Council of the Criminal Police Bodies, the Board of Governors of Homeland Security and the Bar Association. The initiative takes the form of the draft resolution to be submitted to the Assembly of the Republic under d) of paragraph 1 of article 197 and be adopted by this organ of sovereignty in accordance with paragraph 5 of article 166, both of the Constitution. Once approved, the resolution is binding on the Government, the public prosecutor, acting as co-Chair of the implementation of criminal policy, by virtue of paragraph 1 of article 219 of the Constitution, and all the criminal police bodies which have the functional duty to assist. The binding extends pre-trial discovery prevention plan the areas of criminal investigation during the investigation, the conduct of criminal proceedings and the execution of sentences and security measures. At the end of each two-year cycle, the Attorney General of the Republic, responsible for issuing directives, orders and instructions designed to enforce the resolutions, submit to the Government and to Parliament a report on its implementation, difficulties experienced and the ways to overcome them. 6. Not assuming general binding force, the resolution on objectives, priorities and criminal policy guidelines does not, directly or indirectly, the independence of the courts, the principle of the separation and interdependence of powers, and its unique tying the law, starting with the constitutional law (articles 203 and 204 of the Constitution). For its part, the autonomy of the Public Ministry, consecrated in accordance with paragraph 2 of article 219 of the Constitution, is safeguarded by cannot be issued directives, orders or instructions pertaining to certain processes, either by the Government or Parliament. The superiors just continues to compete do so, under paragraph 4 of article 219 of the Constitution, in the cases provided for in the Statute of the Prosecutor's Office. The resolutions adopted by the Assembly of the Republic means that the Government, the public prosecutor's Office and the criminal police bodies take the objectives, adopt priorities and observe the criminal policy guidelines affecting the processes by crimes that they report the appropriate human and material resources. However, not authorize a selection group of priority investigations or promote impunity of certain crimes. So, respect in full the principle of legality, both in its substantive dimension (which includes the reservation in respect of legislative competence of the Assembly of the Republic not only criminalization but also the decriminalization of pipelines) and in its procedural aspect (that checked its procedibilidade conditions, imposes the prosecution once acquired the news of crime). So: under d) of paragraph 1 of article 197 of the Constitution, the Government presents to the Assembly of the Republic the following Bill: chapter I objective and limits of criminal policy Article 1 subject-matter the criminal policy includes, for the purposes of this decree-law, the definition of objectives, priorities and guidelines for crime prevention , criminal investigation, prosecution and enforcement of sentences and security measures.
Article 2 Limits the definition of objectives, priorities and guidelines, pursuant to this law, may not: a) impair the principle of legality, the independence of the courts and the independence of the Prosecutor; b) Contain directives, instructions or orders on certain processes; c) exempt any offence procedure.
CHAPTER II Objectives, priorities and criminal policy guidelines article 3 principle of congruence criminal policy must be congruent with the valuations of the Constitution and the law on the legal goods.
Article 4 Objectives criminal policy aims to prevent and crack down on crime and repair individual and social damage resulting therefrom, taking into account the specific needs of defence of legal goods.
Article 5 Priorities 1-the crimes that are the subject of priority in preventive action, in research and in the procedure can be indicated through legal, legal standard supervised the execution mode provides, the result of individual and social damage or penalty. 2-the indication referred to in the preceding paragraph is always grounded and can be referred to each of the titles in the special part of the Penal Code and the penal legislation uvula. 3-the scheme of priorities shall be without prejudice to the recognition of the urgency, in accordance with the legally prescribed procedures.
Article 6 guidelines on small 1-crime criminal policy guidelines can understand the indication of types of crimes or criminal phenomena for which appropriate especially the provisional suspension of the process, the archive in case of exemption, the accelerated process, the Court trial procedures unique crimes punishable with imprisonment exceeding five years, or the application of other legally schemes planned for the small crime. 2-the provisions of the preceding paragraph does not dispense the material checking, by the competent judicial authorities, to the General requirements and the opportunity of application of each Institute.
CHAPTER III resolutions on criminal policy article 7 1 Initiative-the Government, the general policy of the country, proposes to Parliament resolutions on the objectives, priorities and criminal policy guidelines. 2-The motions for resolutions are tabled every two years until April 15.
Article 8 prior to Hearing proposals for resolutions on criminal policy is preceded by the hearing of the Superior Council of Magistracy, the High Council of the Public Ministry, the Coordinating Council of the Criminal Police, the internal security and High Council of the Bar Association.
Article 9 Approval 1-it is up to Parliament, in the exercise of its competence to adopt policy resolutions on criminal policy, after hearing the Prosecutor-General on the implementation of the resolution is still in force. 2-resolutions are approved until 15 June of the year in which they were presented their proposals and enter into force on 1 September of the same year.
Article 10 Amendments 1-When starting a parliamentary term or substantially change the circumstances that founded the adoption of the resolution, the Assembly of the Republic may introduce changes to the objectives, priorities and criminal policy guidelines. 2-the changes referred to in the preceding paragraph are proposed by the Government with precedence of the hearing provided for in article 8 CHAPTER IV implementation of criminal policy article 11 Fulfilment of resolutions 1-criminal policy resolutions are binding upon the Government, within their respective competences. 2-the public prosecutor, in accordance with its Statute and the judicial organization law, and the criminal police bodies, in accordance with the corresponding organic law, assume the objectives and adopt priorities and guidelines contained in the resolutions on criminal policy. 3-the public prosecutor's Office, the criminal police bodies and Government departments to support the actions of prevention and criminal investigation activity observed in the distribution of human and material resources, objectives, priorities and guidelines contained in the resolutions on criminal policy.
Article 12 the Government Government, within the framework of the prevention services and security forces, and the execution of sentences and security measures in charge of prisons and probation, issue directives, orders and instructions aimed at enforcing the resolutions on criminal policy.
Article 13 Public Ministry 1-it is the Attorney General of the Republic, investigations and prevention measures within the competence of the Prosecutor, issue directives, orders and instructions aimed at enforcing the resolutions on criminal policy. 2-it is up to the Prosecutor to identify the processes covered by the priorities and guidelines contained in the resolutions on criminal policy. Article 14 Assessment 1-the Government presents to the Assembly of the Republic, until 15 October of the year in which it ceases the duration of each resolution, a report on the implementation of resolutions on prevention of crime and of execution of sentences and security measures. 2-the Attorney General of the Republic offers to the Government and to Parliament, within the time limit laid down in the preceding paragraph, a report on the implementation of resolutions relating to investigations and preventive actions within the remit of the public prosecutor's Office, indicating the difficulties experienced and the ways to overcome them. 3-the Assembly of the Republic can hear the Prosecutor-General for clarification about the report he presented.
Chapter V transitional and final provisions article 15 Implementation the first resolution on criminal policy will be proposed and adopted in the first year of validity of this regulation, the periods laid down therein.
Article 16 entry into force the present law shall enter into force 30 days after its publication.
Seen and approved by the Council of Ministers of 2 December 2005 the Prime Minister the Minister of Parliamentary Affairs Minister Presidency
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