The Fourth Amendment To Decree-Law No. 423/91, Of 30 October, National Law Transposing The Directive No. 2004/80/ec Of The Council Of 29 April 2004 Relating To Compensation To Crime Victims.

Original Language Title: Procede à quarta alteração ao Decreto-Lei n.º 423/91, de 30 de Outubro, transpondo para a ordem jurídica nacional a Directiva n.º 2004/80/CE, do Conselho, de 29 de Abril de 2004, relativa à indemnização das vítimas da criminalidade.

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Read the untranslated law here: http://app.parlamento.pt/webutils/docs/doc.pdf?path=6148523063446f764c3246795a5868774d546f334e7a67774c336470626d6c7561574e7059585270646d467a4c316776644756346447397a4c334277624455314c5667755a47396a&fich=ppl55-X.doc&Inline=false

1 PROPOSAL of law No. 55/X justification With this proposal of the law transposing the Directive 2004/80/EC of 29 April 2004 relating to compensation to victims of crime, proposing, for the amendment of Decree-Law No. 423/91, of 30 October, which created a compensation scheme, by the Portuguese State victims of violent crime. The Directive 2004/80/EC requires that all Member States of the European Union ensure that your national law provides that the existence of a compensation scheme by the State to victims of violent intentional crime committed in their respective territories. Is still objective of the directive to establish a system of cooperation between Member States, that the practical difficulties and linguistic minore which may occur in cross-border situations, to ensure that, in the European area, crime victims can turn to an authority in your Member State of residence to access a fair and appropriate compensation, even if the crime occurred in the territory of another Member State. Since national legal systems already has a compensation scheme by the State to victims of violent crimes, the transposition of that directive merely implies the creation of rules on access to compensation in cross-border situations. To this end, it is proposed, on the one hand, the amendment of Decree-Law No. 423/91, of 30 October, in order to provide to victims of violent crimes committed in the territory of another Member State of the European Union the possibility of presenting your claim for compensation to the Portuguese Commission of protection to victims of crime, since they have your habitual residence in Portugal. In this case, and in accordance with the provisions of the directive, the granting of compensation rests with the Member State in whose territory the crime was committed, racing to the Portuguese Commission of protection to victims of crime to cooperate with the competent authority of that Member State in the statement of claim. On the other hand, in the case of intentional acts of violence committed on Portuguese territory or on board Portuguese ships or aircraft, it is proposed to allow the victim of serious bodily injury or, in the case of death, the person 2 civil law grants the right to food or that, under the terms of Act No. 7/2001 , May 11, lived in de facto union with the victim, present a claim before the competent authority of the Member State of the European Union that have your habitual residence. This request is transmitted by that authority to the Portuguese Commission of protection to victims of crime, which carries out, with the collaboration of that authority, the statement of claim. Compensation is paid by the Portuguese State and arbitrated. The task of transposing the rules relating to formalities and languages for the transmission of applications for compensation, the options adopted closely follow the discipline poured in the directive. In addition to the changes that are required as a result of the need to transpose the directive no. 2004/80/EC, take advantage of the opportunity to propose the correction of certain aspects that the several years of validity of Decree-Law No. 423/91, of 30 October, demonstrated that it can be improved. Thus, it is proposed to amend article 1, in order to, on the one hand, to ensure the rights of people who live in de facto union with the victim, the application of more demanding regimen and remitting tight Article 2020.º of the Civil Code; on the other hand, adds a new paragraph 6, stating that, in cases where the intentional act of violence achieving a crime against freedom and sexual self-determination, can be excused the requirement laid down in point (a)) of paragraph 1. This amendment relates to the fact that, in this type of crime, does not, as a rule, a permanent disability or temporary disability and absolute for at least thirty days or the death of the victim, which, still, and given the seriousness of the crime in question, the allocation by the State compensation. Also proposes to amend article 4, concerning periods of limitation, determining that the minor at the time of the intentional act of violence can submit the application for the granting of compensation from the State until a year after it reached the age of majority or be emancipated. It is intended, therefore, to remedy a possible neglect of the legal representatives of the child. The proposed amendments to articles 2 and 5 relate to the need to strengthen mechanisms enabling objectives to assess, in a fair and appropriate, the amount of compensation that, in each case should be arbitrated.

3 Thus: under d) of paragraph 1 of article 197 of the Constitution, the Government presents to the Assembly of the Republic the following proposal of law: Article 1 subject-matter this law amends Decree-Law No. 423/91, of 30 October, amended by law No. 10/96, of 23 March, no. 136/99, 28 August, and by Decree-Law No. 62/2004 , March 22, the national law transposing the directive no. 2004/80/EC of 29 April 2004 relating to compensation to crime victims.

Article 2 Amendment of Decree-Law No. 423/91 of 30 October articles 1, 2, 4 and 5 of Decree-Law No. 423/91, of 30 October, amended by law No. 10/96, of 23 March, no. 136/99, 28 August, and by Decree-Law No. 62/2004, of March 22, are replaced by the following : ' article 1 [...]

1-the victims of bodily injury resulting directly from intentional acts of violence committed on Portuguese territory or on board Portuguese ships or aircraft and, in the case of death, people who, under paragraph 1 of article 2009.º of the Civil Code, is granted a right to food and that, pursuant to law No. 7/2001 , May 11, lived in de facto union with the victim, may require the granting of compensation by the State, even though they constituted or may not become wizards in the criminal proceedings, the following requirements: a) [...]; b) Have the prejudice caused a considerable disturbance in the standard of living of the victim or, in the case of death, of the applicant; 4 c) [...]. 2 - [...]. 3 - [...]. 4 - [...]. 5 - [...]. 6-When the intentional act of violence set a crime against freedom and sexual self-determination, can be excused the requirement laid down in point (a)) of paragraph 1 if exceptional circumstances duly substantiated and so advise.

Article 2 [...]

1 - [...]. 2 - [...]. 3 - [...]. 4 - [...]. 5 - [...]. 6-fixing the compensation for lost profit has as reference the tax returns of income referred to in point (b)) of paragraph 2 of article 5 7-in the case of not having been granted any compensation in criminal proceedings or outside it due solely attributable to the applicant, in particular for not less civil claim for damages or by him have given up , the upper limit of the amount of compensation to be granted by the State is reduced to half, unless exceptional circumstances duly substantiated and advise otherwise.

Article 4 [...]

1 - [...]. 5 2-the smallest of intentional act of violence can submit the application for the granting of compensation from the State until a year after it reached the age of majority or be emancipated. 3-criminal process has been initiated, the periods referred to in paragraphs 1 and 2 may be extended and expire after a year on the decision to terminate him. 4-[previous paragraph 3]. 5-[previous paragraph 4].

Article 5 [...]

1 - [...]. 2-the application must be accompanied by all the useful elements in particular: (a) supporting) [...]; b) copy of the victim's income tax return concerning the previous year in place of the facts and, in the case of death, of the applicant; c) [...]. 3 - [...]. 4 - [...].»

Article 3 Amendment to Decree-Law No. 423/91 of 30 October Are added to Decree-Law No. 423/91, of 30 October, amended by law No. 10/96, of 23 March, no. 136/99, 28 August, and by Decree-Law No. 62/2004, of March 22, articles 12-A, 12-B, 12-C and 12-D , to read as follows: «article 12-applicants ordinarily resident in another Member State of the European Union


1-in the cases referred to in paragraph 1 of article 1, when the applicant has to your habitual residence in another Member State of the European Union and has 6 presented to the competent authority of that State claim for damages to be paid by the Portuguese State, the Commission referred to in article 6 to) Receive the request transmitted by the competent authority of the Member State of the habitual residence of the applicant; (b)), within 10 days, the receipt of the application to the applicant and the competent authority of the Member State of habitual residence and communicate your contacts from the Commission and the likely decision of the application period; c) Instruct the application; d) communicate to the applicant and the competent authority of the Member State of habitual residence to your decision of the Minister of Justice about the granting of compensation. 2-for the purposes of subparagraph (c)) of the preceding paragraph, the Commission may, if necessary: a) request the competent authority of the Member State of the habitual residence of the applicant to the hearing of this or any other person, including a witness or an expert, as well as sending the respective minutes of hearing; b) Hear directly the applicant or any other person, by video conference, requesting the competent authority of the Member State of the habitual residence of the applicant the necessary collaboration.

Article 12-B compensation to be granted by another Member State of the European Union 1-in case you have been practiced a violent felony in the territory of another Member State of the European Union, the application for the granting of compensation to be paid by that State may be presented to the Commission referred to in article 6, provided that the applicant has to your habitual residence in Portugal. 2-the application, the Commission shall: 7 a) Inform the applicant about the completion of the claim form and the supporting documents required; b) Transmit the form and the documents referred to in the preceding paragraph, within 10 days, the competent authority of the Member State in whose territory the crime was practiced; c) assist the applicant in reply to requests for additional information requested by the competent authority of the Member State in whose territory the crime was practiced, transmitting the answers, at the request of the applicant, directly to that authority; d) Provide, at the request of the competent authority of the Member State in whose territory the crime was practiced, the hearing of the applicant or any other person, transmitting the minutes of the hearing to that authority; e) cooperate with the competent authority of the Member State in whose territory the crime was practised whenever this choose the direct hearing of the applicant or any other person, in accordance with the legislation of that State, in particular through telephone or video-conferencing; f) Receive the decision on a claim transmitted by the competent authority of the Member State in whose territory the crime was practiced. 3-the Commission did not carry out any examination of the application. 4-compensation is not paid by the Portuguese State or arbitrated.

Article 12-C Formalities in transmission of orders 1-requests and the decisions referred to in articles 12-A and 12-B is transmitted through standard forms approved by decision of the European Commission published in the official journal of the European Union. 2-forms and documents submitted pursuant to articles 12-A and 12-B are exempt from legalisation or any equivalent formality. 8 3-The services requested and rendered by the Committee referred to in article 6, under the provisions of articles 12-A and 12-B, do not give rise to any claim for repayment of charges or expenses.

Article 12-D language in cross-border situations 1-Without prejudice to the provisions of the following paragraph, forms and other documents submitted by the Commission referred to in article 6, for the purposes of articles 12-A and 12-B, shall be drawn up in one of the following languages: the) official language of the Member State of the European Union to which those forms and documents are sent; b) another language of that Member State, since corresponds to one of the languages of the Community institutions; c) another language, since corresponds to one of the languages of the Community institutions, and that Member State has declared to accept, in accordance with point (b)) of paragraph 1 of article 13 of Directive 2004/80/EC of 29 April 2004. 2-the full text of the decision and the minutes of the hearing, referred to, respectively, in subparagraph (d)) of paragraph 1 of article 12-A and d) of paragraph 2 of article 12-B, may be submitted in Portuguese or English. 3-Without prejudice to the following paragraphs, the Commission may refuse to grant forms and documents submitted for the purposes of articles 12-A and 12-B when they are not written in Portuguese or English. 4-the Commission cannot refuse to accept the minutes of the hearing referred to in paragraph 2 of article 12-A, since it is written in a language that matches one of the languages of the Community institutions. 5-the Commission cannot refuse the receipt of the decision referred to in point (f)) of paragraph 2 of article 12-B, since it is written in a language provided for in the legislation of the Member State which transmits.»

Article 4 9 Republishing is republished, in annex, which is an integral part of this law, Decree-Law No. 423/91, of 30 October, with the current wording.

Article 5 entry into force this law shall enter into force on the day following your publication.

Seen and approved by the Council of Ministers of 5 January 2006 the Prime Minister the Minister of Parliamentary Affairs Minister Presidency 10 ANNEX to Decree-Law No. 423/91, of 30 October article 1 Compensation by the State to victims of violent crimes-1 victims of bodily injury resulting directly from intentional acts of violence committed on Portuguese territory or on board Portuguese ships or aircraft and, in the case of death, people who, under paragraph 1 of article 2009.º of the Civil Code, is granted a right to food and that, pursuant to law No. 7/2001, of May 11, lived in de facto union with the victim, may require the granting of compensation by the State, even though they constituted or may not constitute criminal proceedings assistants recorded the following requirements: a) the injury have resulted a permanent disability, a temporary incapacity and absolute for at least 30 days or death; b) Have the prejudice caused a considerable disturbance in the standard of living of the victim or, in the case of death, of the applicant; (c)) have not obtained effective compensation for damage in execution of enforceable judgment concerning claim deducted pursuant to articles 71 to 84 of the code of criminal procedure or, if reasonably to foresee that the delinquent and responsible civilians will repair the damage, without it being possible to obtain from another source an effective and adequate reparation. 2-the right of compensation remains even though it is not known the identity of the author of the intentional acts of violence or, for any other reason, he cannot be accused or convicted. 3-can also apply people who voluntarily helped the victim or cooperated with the authorities in preventing infringement, harassment or arrest of the offender, verified the requirements of (a)) c) of paragraph 1. 4-the granting of compensation to the persons referred to in the preceding paragraph does not depend on the granting of compensation to the victims of injury. 11 5-there will be no place for the application of the provisions of this law when the damage is caused by land vehicles, as well as apply the rules about accidents at work or on duty. 6-When the intentional act of violence set a crime against freedom and sexual self-determination, can be excused the requirement laid down in point (a)) of paragraph 1 if exceptional circumstances duly substantiated and so advise.

Article 2 amount of compensation


1-the compensation from the State is restricted to the patrimonial damage resulting from injury and will be fixed in terms of equity, with ceilings, for each victim, an amount corresponding to double the purview of the relationship, for the cases of death or serious physical injury. 2-in cases of death or injury of several people as a result of the same fact, the compensation from the State has as a maximum the amount corresponding to double the purview of the relationship to each of them, with the maximum total of six times the parameters of the relationship. 3-If the compensation is fixed in the form of annual income, the ceiling is a quarter of the purview of the relationship for each injured person and may not exceed three quarters of the purview of the relationship are many injured due to the same fact. 4-will be taken into account any sum from another source, namely his own delinquent or of social security; However, with respect to private insurance of life or personal injury, only to the extent that equity requires. 5-in the cases referred to in paragraph 3 of article 1, there will be also a compensation for damage of things of considerable value, with the ceiling the amount corresponding to the purview of the relationship. 6-fixing the compensation for lost profit has as reference the tax returns of income referred to in point (b)) of paragraph 2 of article 5. 7-in the case of not having been granted any compensation in criminal proceedings or outside it due solely attributable to the applicant, in particular for not less civil claim for damages or for him to give up, the ceiling of the amount of compensation to be granted by the State is reduced to half, saved 12 when exceptional circumstances duly substantiated and advise otherwise.

Article 3 exclusion or reduction of compensation the compensation from the State can be reduced or excluded in view of the victim's or applicant's conduct before, during or after the practice of facts, its relations with the author or your middle, or if contrary to the sense of Justice or public order.

Article 4 Revocation and granting of provision 1-under penalty of forfeiture, the claim of compensation by the State must be filed within one year from the date thereof. 2-the smallest of intentional act of violence can submit the application for the granting of compensation from the State until a year after it reached the age of majority or be emancipated. 3-criminal process has been initiated, the periods referred to in paragraphs 1 and 2 may be extended and expire after a year on the decision to terminate him. 4-In any case, the Minister of Justice can relieve the applicant of the effect of lapse when justified moral or material circumstances have prevented the filing of the application in a timely manner. 5-In case of emergency, can be required to grant a provision on the compensation to be determined later, of an amount not exceeding one quarter of the maximum limit.

Article 5 application and accompanying documents 1-the granting of compensation by the State depends on request of persons referred to in article 1 or a public prosecutor. 13 2-the application must be accompanied by all the useful elements in particular: (a) supporting) indication of the amount of compensation sought; b) copy of the victim's income tax return concerning the previous year in place of the facts and, in the case of death, of the applicant; c) indication of any importance has already received, as well as of the persons or public or private entities which may, in whole or in part, to make payments in connection with the damage. 3-If you have been deducted claim for damages in criminal proceedings or out of it, in cases where the law admits, the application must state whether any compensation was granted and what your amount. 4-In case of falsehood of information referred to in the preceding paragraph, the State shall be entitled to reimbursement of the amount eventually paid to applicants and shall exercise it through civil action within one year of the date on which you have knowledge of falsity.

Article 6 powers and the application instruction 1-granting of compensation is the responsibility of the Minister of Justice. 2-the statement of request for a Commission consisting of a judicial magistrate appointed by the Superior Council of the Magistracy, chaired by a lawyer or trainee lawyer appointed by the Bar Association and a top official of the Ministry of Justice, appointed by the Minister. 3-can not constitute the Commission persons who have intervened in any case by the fact that give rise to the claim.

Article 7 powers of the Commission 1-the Commission referred to in the previous article shall all useful steps for the statement of the request and, in particular: a) Listen applicants and those responsible for compensation; 14 b) Order copies of reports and appearances relating to the facts and any criminal proceedings instituted in parts, though pending final decision; c) Requests information about the professional, financial or social situation of those responsible for the repair of damage to any natural or legal person, and any public services. 2-with the permission of the Minister of Justice, the Commission may also request the information necessary for the tax administration repute or the credit, when the responsible for compensation to refuse supply them and there are reasonable reasons in the sense that it offers goods or resources that you want to hide. 3-The requested information is not enforceable against the professional secrecy or banking. 4-the information obtained from the preceding paragraphs may not be used for purposes other than the request, being your prohibited disclosure.

Article 8 time limits 1-the statement is completed within three months, unless an extension authorized by the Minister of Justice, for cogent reasons and on the basis of a reasoned proposal of the Commission. 2-Complete the statement, the process is sent to the Minister of Justice, accompanied by advice on the granting of compensation and its amount. 3-Before completion of the statement, can the Commission suggest to the Minister of Justice to grant an allowance pursuant to paragraph 4 of article 4 article 9 subrogation the State is subrogated to the rights of the harmed against the author of intentional acts of violence and people with responsibility for civil purposes, within the limits of compensation provided.

Article 10 Refund 15 1-When the victim, after the payment of the allowance or compensation, obtains, in any capacity, redress or compensation for the damage suffered, effectively should the Minister of Justice, by the opinion of the Committee referred to in article 6, require the reimbursement, in whole or in part, of the amount received, subject to the provisions of paragraph 2 of article 2 2-the provisions of the preceding paragraph shall apply to the case where , having been handed the provision, if find out later that the compensation was not granted due to the lack of the requirements referred to in article 1-3 of the decisions referred to in the preceding paragraphs appeal litigation, in general terms.

Article 11 false information Who obtain or try to obtain compensation under the terms of this diploma based on information known to be false or inaccurate is punishable with imprisonment up to three years or a fine, without prejudice to the provisions of paragraph 4 of article 5 article 12 Application in space If the facts referred to in article 1 have been committed abroad shall apply the provisions of this decree-law when the injured party is of Portuguese nationality, provided that they are not entitled to compensation by the State in whose territory the damage was produced.

Article 12-the applicant is habitually resident in another Member State of the European Union 1-in the cases referred to in paragraph 1 of article 1, when the applicant has to your habitual residence in another Member State of the European Union and submitted to the competent authority of that State claim for damages to be paid by the Portuguese State, the Commission referred to in article 6 to 16) Receive the request transmitted by the competent authority of the Member State of the habitual residence of the applicant; (b)), within 10 days, the receipt of the application to the applicant and the competent authority of the Member State of habitual residence and communicate your contacts from the Commission and the likely decision of the application period; c) Instruct the application; d) communicate to the applicant and the competent authority of the Member State of habitual residence to your decision of the Minister of Justice about the granting of compensation. 2-for the purposes of subparagraph (c)) of the preceding paragraph, the Commission may, if necessary: a) request the competent authority of the Member State of the habitual residence of the applicant to the hearing of this or any other person, including a witness or an expert, as well as sending the respective minutes of hearing; b) Hear directly the applicant or any other person, by video conference, requesting the competent authority of the Member State of the habitual residence of the applicant the necessary collaboration.

Article 12-B compensation to be granted by another Member State of the European Union


1-in the case of having been practiced a violent felony in the territory of another Member State of the European Union, the application for the granting of compensation to be paid by that State may be presented to the Commission referred to in article 6, provided that the applicant has to your habitual residence in Portugal. 2-the application, the Commission shall: a inform the applicant about the) way of filling out the claim form and the supporting documents required; b) Transmit the form and the documents referred to in the preceding paragraph, within 10 days, the competent authority of the Member State in whose territory the crime was practiced; c) assist the applicant in reply to requests for additional information requested by the competent authority of the Member State in whose territory the crime targeted 17, broadcasting the answers, at the request of the applicant, directly to that authority; d) Provide, at the request of the competent authority of the Member State in whose territory the crime was practiced, the hearing of the applicant or any other person, transmitting the minutes of the hearing to that authority; e) cooperate with the competent authority of the Member State in whose territory the crime was practised whenever this choose the direct hearing of the applicant or any other person, in accordance with the legislation of that State, in particular through telephone or video-conferencing; f) Receive the decision on a claim transmitted by the competent authority of the Member State in whose territory the crime was practiced. 3-the Commission did not carry out any examination of the application. 4-compensation is not paid by the Portuguese State or arbitrated.

Article 12-C Formalities in transmission of orders 1-requests and the decisions referred to in articles 12-A and 12-B is transmitted through standard forms approved by decision of the European Commission published in the official journal of the European Union. 2-forms and documents submitted pursuant to articles 12-A and 12-B are exempt from legalisation or any equivalent formality. 3-The services requested and rendered by the Committee referred to in article 6, under the provisions of articles 12-A and 12-B, do not give rise to any claim for repayment of charges or expenses.

Article 12-D language in cross-border situations 1-Without prejudice to the provisions of the following paragraph, forms and other documents submitted by the Commission referred to in article 6, for the purposes of articles 12-A and 12-B, shall be drawn up in one of the following languages: the) official language of the Member State of the European Union to which those forms and documents are sent; 18 (b)) other languages of that Member State, since corresponds to one of the languages of the Community institutions; c) another language, since corresponds to one of the languages of the Community institutions, and that Member State has declared to accept, in accordance with point (b)) of paragraph 1 of article 13 of Directive 2004/80/EC of 29 April 2004. 2-the full text of the decision and the minutes of the hearing, referred to, respectively, in subparagraph (d)) of paragraph 1 of article 12-A and d) of paragraph 2 of article 12-B, may be submitted in Portuguese or English. 3-Without prejudice to the following paragraphs, the Commission may refuse to grant forms and documents submitted for the purposes of articles 12-A and 12-B when they are not written in Portuguese or English. 4-the Commission cannot refuse to accept the minutes of the hearing referred to in paragraph 2 of article 12-A, since it is written in a language that matches one of the languages of the Community institutions. 5-the Commission cannot refuse the receipt of the decision referred to in point (f)) of paragraph 2 of article 12-B, since it is written in a language provided for in the legislation of the Member State which transmits.

Article 13 1 Charges-The charges resulting from the implementation of this decree-law shall be deemed to be expenses of Justice and supported through a special budget entered annually in the budget of the Ministry of Justice, chapter «Government members ' offices and support services». 2-While the corresponding funds are not shown in the budget of the State, will be the same supported by Office of financial management of the Ministry of Justice. 3-In all judgments of conviction in criminal proceedings, the Court will condemn the defendant to pay a sum equivalent to 1% of the applicable justice, which will be considered my own recipe of General courts Safe.

Article 14 Application in time 19 limitation established in article 4 cannot be invoked in relation to facts committed after 1 January 1991, subject to the application for compensation be submitted within six months from the date of entry into force of this decree-law.

Article 15 exemption from costs or expenses and charge 1-documents the processes for granting compensation by the State are exempt from preparation and expense. 2-the necessary documents to the statement of claim are free and of them shall be expressly that are issued for implementation of the provisions of this law.

Article 16 [amendment to article 508.º of the Civil Code] article 17 [amendment to article 82 of the code of criminal procedure] article 18 Regulation the recruitment of support staff from the Commission referred to in article 6, the remuneration of its members, as well as to your installation and operation shall be subject to implementing decree.

Article 19 entry into force the present law, except as provided in the preceding article, shall enter into force on the date of publication of the implementing decree that referred to.