Key Benefits:
PROPOSED LAW NO. 48 /X
Exhibition of reasons
1. By including in the relative reservation of legislative competence of the Assembly of the Republic to
" definition of the crimes, penalties, security measures and their respective assumptions, well
as (the) criminal case " [para. c) of Article 165 (1)], the Constitution
acknowledges that this body of sovereignty, on a par with the Government, possesses competence for
define the criminal policy. In effect, such a policy involves the selection of pipelines that
deserve to be criminalised taking into account the worthy legal goods and carers of guardian,
the weighting of the corresponding penalties and the prediction of the procedural institutes
appropriate to the efectiveness of criminal liability. The reservation of law, as relevant
expression of the principle of criminal legality, it determines that only laws of the Assembly of the
Republic or decree-laws of the Government authorized in the precise terms of paragraph 2 of the
article 165 of the Constitution constitute idoidal normative acts in criminal matters.
But the definition of criminal policy does not run out in the passage of criminal laws. Being
right-and even inevitable-that not all crimes end up being punished, even by
cause of the limitation of available resources, the definition of priorities constitutes part
significant of this policy. Thus, despite the primed of the principle of legality (para. 1
of Article 219 of the Constitution), the Code of Criminal Procedure contemplates emanations from
a principle of the "mitigated opportunity", which determine the compression of the jus
puniendi and are still compatible with the constitutional program of criminal law. The
provisional suspension of the proceedings, the filing in the event of a penalty dispensation, the
summaries process and the trial by singular court of prosecutions for crimes
punishable with a prison sentence of more than five years, upon application of the
Public prosecutor's office, constitute paradigmatic examples of this orientation.
2. The fun and consensus institutes provided for in the Code of Criminal Procedure do not
allow for you alone to set priorities in the criminal investigation and the exercise of the action
penal. Such institutes always 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), on the exercise of punitive power. Ora, it is the principle itself
democratic that obstinate that it is left to chance or entrusted with any pre-
understanding the direction of the authorities promoting criminal action. By the positive,
it is still this principle that obliges the legitimized bodies of sovereignty for the purpose-the
Assembly of the Republic and the Government-to exercise their skills, outlining
a policy that conscribe strategies for preventing and suppressing crime and
repair of the individual and social damage by it caused. Article 219 (1) of the
Constitution also presupposes, incidentally, the definition of criminal policy by the organs of
sovereignty, by prescribing that the Public Prosecutor's Office participates in the respective implementation. And,
in the case of the Government, the responsibility for the conduct of the general policy of the country (article
182. of the Constitution) involves, for certain, the security and criminal policies.
The definition of criminal policy must be located in an abstract plan, in a way that is not
allow the handling of concrete processes. On the other hand, it does not harm the
principle of legality, in so far as it does not intend to or permit, by itself,
to exempt any crimes from the corresponding procedures or sanctions. This is about
only of setting goals, priorities and guidelines, taking into account, in each
moment, the main threats to legal goods protected by criminal law. And the
priorities should respect the valuations of the constitutional legislature, specifically
in the seat of rights, freedoms and guarantees. In fact, although a criminal law of
essentially liberal matrix, which perqueues as ultima ratio of the criminal policy of the
State, do not behave, by rule, obligations of incrimination, the primed of the Constitution
generates a demand for concordance between the constitutional and criminal axiological orders,
that it is passed on in the definition of criminal policy.
3. At the opposite pole-from the so-called small criminality-, the definition of criminal policy
allows the formulation of generic guidelines, through the indication of types of crimes,
on the provisional suspension of the proceedings, the filing in the event of a penalty dispensation,
the sumptiest process, the trial by the singular court of prosecutions for crimes
punishable with imprisonment of more than five years and the application of other schemes
legally forecasted. But these guidelines do not call into question the requirement of
verification of the legal requirements of each of the said institutes nor do they waive the
weighting, by the competent judicial authorities, of the opportunity of their
application on a case-by-case (even if not framed within the scope traced by the Guideline).
It is, thus, simple programmatic indications.
The recipient of the guidelines on small crime is the Public Prosecutor's Office,
as a holder of the criminal action, as it depends on the initiative to appeal to the
called mechanisms of opportunity. In all manner, the principle of the
legality and are safeguarded the independence of the courts and the autonomy of the
Prosecutor's Office-being excluded the handling of any processes-, given
that this one will always compete to evaluate, in concrete, the relevance of each promotion
procedural.
4. In accordance with the present framework law, criminal policy priorities are defined
in relation to each of the titles of the Special Part of the Criminal Code and the criminal law
avulsa and may take into account a multiplicity of criteria: the protected legal good,
that enforms the systematization of the Criminal Code; the legal type of crime; the way of
execution (involving, for example, the means used and the number of agents
involved); the result; the individual and social damage; the penalty. These criteria are
used, either isolated or conjugently, with always in view of the precarious purpose of the
criminal policy: the defence of legal goods, proclaimed as the first purpose of the
criminal sanctions by the Criminal Code and legitimized by the principle of the need for penalties
and of the security measures (Article 18 (2) of the Constitution).
A biennial periodicity is expected for the definition of the objectives, priorities and
criminal policy guidelines. A longer term, perhaps coincident with the
Four years of the legislature, would not allow to keep up with the mutations that occur in
matter of safety and crime. Another weighted alternative-from a definition
annual-it was also sidelined for it to appear insufficient to keep up with the cycles of the
criminal investigation and the judicial process. Still, the possibility of
introduce changes before they have been exhausted the two-year deadline when you start a
legislature or if they substantially modify the circumstances that they founded the
approval of the resolution , contemplating themselves, in this latter hypothesis, a kind of
clause rebus sic stantibus.
5. Being responsible for the conduct of the general policy of the country, the Government assumes the
initiative to draw up the proposal for objectives, priorities and guidelines, after
hear the Superior Council of the Magistrature, the Higher Council of the Public Prosecutor's Office,
the Coordinating Council of the Criminal Police Bodies, the Superior Council of
Internal Security and the Order of Lawyers. The initiative takes the form of proposal
of resolution to be submitted to the Assembly of the Republic under the paragraph d) of paragraph 1 of the
article 197 and to be approved by this body of sovereignty in accordance with paragraph 5 of the article
166., both of the Constitution.
Once approved, the resolution binds the Government, the Public Prosecutor's Office, in the quality
of co-responsible for the implementation of the criminal policy, by virtue of Article 219 (1)
of the Constitution, and all the criminal police bodies that have the functional duty of the
coadjuvar. The linkage extends from the plan of preprocedural prevention to the domains
of the criminal investigation during the investigation, of the exercise of criminal action and of the
execution of feathers and safety measures.
At the end of each two-year cycle, the Attorney General of the Republic, to whom it competes
issuing the directives, orders and instructions designed to enforce the resolutions,
presents to the Government and to the Assembly of the Republic a report on its implementation,
the difficulties experienced and the ways to overcome them.
6. Not assuming general mandatory force, the resolution on objectives, priorities and
criminal policy guidelines do not call into question, in a direct or indirect way, the
independence of the courts, stemming from the principle of separation and interdependence of
powers, and their exclusive subordination to the law, to be started by constitutional law (articles
203. and 204 of the Constitution). For his shift, the autonomy of the Public Prosecutor's Office,
consecrated in accordance with Article 219 (2) of the Constitution, it is safeguarded by no
they can be issued directives, orders or instructions regarding proceedings
determined, whether by the Government is by the Assembly of the Republic. Only to the superiors
hierarchical continues to compete to do so, under Article 219 (4) of the
Constitution, in cases provided for in the Statute of the Public Prosecutor's Office.
The resolutions adopted by the Assembly of the Republic imply that the Government, the
Prosecutor's Office and the criminal police bodies take on the objectives, adopt the
priorities and observe the criminal policy guidelines, affecting the processes by
crimes to which these report the appropriate human and material resources. However,
nor do they authorize a case-by-case selection of priority surveys nor do they promote the
impunity of certain crimes. So they respect in full the principle of legality,
both in its substantive dimension (which includes in the relative reserve of competence
legislature of the Assembly of the Republic not only the criminalization but also the
decriminalization of ducts) as in its procedural strand (which, verified the
respective conditions of procedure, imposes the process of proceedings once
acquired the news of the crime).
Thus:
Under the terms of the paragraph d ) of Article 197 (1) of the Constitution, the Government presents to the
Assembly of the Republic the following proposal for a law:
CHAPTER I
Subject matter and limits of criminal policy
Article 1.
Subject
The conduct of criminal policy comprises, for the purposes of this diploma, the
definition of objectives, priorities and guidelines in the prevention of the
crime, criminal investigation, criminal action and the execution of penalties and measures of
security.
Article 2.
Limits
The definition of objectives, priorities and guidelines, in the terms of this diploma,
cannot:
a ) To prejudice the principle of legality, the independence of the courts and the
autonomy of the prosecutor's office;
b ) Contain directives, instructions or orders on determined processes;
c ) Exempt from procedure any crime.
CHAPTER II
Objectives, priorities and guidelines of criminal policy
Article 3.
Principle of congruence
Criminal policy should 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 the
individual and social damage from it resulting, taking into account the needs
concrete defence of legal goods.
Article 5.
Priorities
1-The crimes that are the subject of priority in the actions of prevention, in research
and in the procedure can be indicated through the tuteled legal good, of the standard
legal that provides for them, of the mode of execution, of the result, of the individual damage and
social or the penalty.
2-A The indication provided for in the preceding paragraph is always substantiated and may be referred to
to each of the titles of the Special Part of the Criminal Code and the avulous criminal law.
3-The priority regime is without prejudice to the recognition of urgent character to
processes, in the legally foreseen terms.
Article 6.
Guidelines on small crime
1-Criminal policy guidelines can understand the indication of types of
crimes or of criminal phenomena in relation to which it is especially justified
the provisional suspension of the proceedings, the filing in the event of a penalty dispensation, the
summary proceedings, the trial by the singular court of prosecutions for crimes
punishable with imprisonment of more than five years or the application of other schemes
legally provided for the small crime.
2-The provisions of the preceding paragraph shall not waiver the casualty check, by the
competent judicial authorities, general requirements and the opportunity of the
application of each institute.
CHAPTER III
Resolutions on criminal policy
Article 7.
Initiative
1-The Government, in the conduct of the general policy of the country, proposes to the Assembly of
Republic resolutions on the objectives, priorities and policy guidelines
criminal.
2-The motions for resolution are presented, every two years, to April 15.
Article 8.
Previous hearing
The drafting of the motions for resolution on criminal policy is preceded by the
hearing of the Higher Council of Magistrate, of the Higher Council of the Ministry
Public, from the Coordinating Council of the Criminal Police Bodies, of the Council
Superior of Homeland Security and the Order of Lawyers.
Article 9.
Approval
1-Compete to the Assembly of the Republic, in the exercise of its political competence,
pass the resolutions on criminal policy, after listening to the Attorney General
of the Republic about the implementation of the resolution still in force.
2-resolutions are passed until June 15 of the year they have been
presented the respective proposals and come into force on September 1 of the same
year.
Article 10.
Changes
1-When to start a legislature or if they substantially modify the
circumstances that founded the adoption of the resolution, the Assembly of the Republic
can make changes to the objectives, priorities and policy directions
criminal.
2-The changes provided for in the preceding paragraph are proposed by the Government with
prior hearing of the hearing provided for in Article 8.
CHAPTER IV
Implementation of criminal policy
Article 11.
Compliance with resolutions
1-The resolutions on criminal policy bind the Government, in the framework of the
respective competences.
2-The Public Prosecutor's Office, pursuant to the respective Statute and the laws of organization
judicial, and the criminal police bodies, according to the corresponding laws
organic, assume the objectives and adopt the constant priorities and guidelines
of the resolutions on criminal policy.
3-The Public Prosecutor's Office, the criminal police organs and the departments of the
Public Administration supporting the actions of prevention and the activity of
criminal investigation observes, in the distribution of human and material means, the
objectives, priorities and constant guidelines of the resolutions on policy
criminal.
Article 12.
Government
It is incumbent on the Government, in the context of prevention in charge of the services and forces of
safety, and of the execution of penalties and security measures in charge of services
prisals and social reinsertion, issue the directives, orders and instructions intended to
make complying with the resolutions on criminal policy.
Article 13.
Prosecutor's Office
1-Compete to the Attorney General of the Republic, in the context of surveys and actions
of prevention of the competence of the Public Prosecutor's Office, issue the directives, orders and
instructions intended to enforce the resolutions on criminal policy.
2-It is up to the Prosecutor's Office to identify the processes covered by the priorities and
constant guidelines of the resolutions on criminal policy.
Article 14.
Evaluation
1-The Government presents to the Assembly of the Republic, until October 15 of the year in which
cesse for the duration of each resolution, a report on the implementation of the resolutions in
matter for the prevention of crime and execution of penalties and measures of
security.
2-The Attorney General of the Republic presents to the Government and the Assembly of the
Republic, within the period set out in the preceding paragraph, a report on the implementation of the
resolutions in respect of surveys and actions to prevent the competence of the
Prosecutor's Office, indicating the difficulties experienced and the ways of the
overcome.
3-A Assembly of the Republic may hear from the Attorney General of the Republic to obtain
clarifications about the report by him presented.
CHAPTER V
Final and transitional provisions
Article 15.
Application
The first resolution on criminal policy will be proposed and approved in the first year
of the duration of this diploma, at the deadlines set out in it.
Article 16.
Entry into force
This diploma comes into force 30 days after its publication.
Seen and approved in Council of Ministers of December 2, 2005
The Prime Minister
The Minister of the Presidency
The Minister of Parliamentary Affairs