Key Benefits:
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PROPOSED LAW NO. 107 /X
Exhibition of Motives
The Government Programme of the XVII Constitutional Government undertakes the commitment of
proceed to a strong bet on alternative means of dispute resolution while
specially vocated form for a justice closer to the citizen,
manifesting, in what regard to the criminal matter concerns, the purpose of developing new
forms of mediation and conciliation.
In the fulfillment of that desideratum, the present proposed law creates a system of
criminal mediation, also giving compliance to Article 10 of the Framework Decision
2001 /220/JAI of the Council of March 15, 2001 on the status of the victim in
criminal proceedings, which requires the Member States to promote mediation in the
criminal proceedings relating to offences they deem appropriate, and the agreements
resulting from mediation can be taken into account in these processes.
In accordance with the international instruments in force and with the experience
compared, the proposed law draws mediation as an informal and flexible process,
conducted by an impartial third party, the mediator, which promotes the approximation between the
argued and the offending and supports them in the attempt to actively find an agreement that
allow the repair-not necessarily pecuniary-of the damage caused by the fact
illicit and contributes to the restoration of social peace.
The proposal is also based on the various general principles contained in the Recommendation
99 (19) on mediation in criminal matters, adopted on September 15, 1999 by the
Committee of Ministers of the Council of Europe, establishing, in particular, the
need for a complete information of the participants as to their rights and
as to the process of mediation and its procedural consequences, the free
consent in the participation in the mediation and the confidentiality of the sessions of
mediation.
The criminal mediation system created by the present diploma applies to all crimes
private individuals and certain semi-public crimes-the semi-public crimes against the people
or against heritage-provided that punishable with penalty of imprisonment of not more than five
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years or with sanction other than prison. Regardless of the nature of the crime, they are
always excluded from the scope of criminal mediation the sex crimes, the
crimes of embezziness, corruption and trafficking in influences, the cases in which the offending is
less than 16 years or where the accused is a legal person and still the cases in which
is applicable form of special summary or sumptuous process.
Thus, dealing with private crimes or semi-public crimes in relation to the
which one admits to mediation, the shipment of the process takes place at any time of the
survey-option that brings gains in terms of procedural economy and speed-,
provided that there are indications that the accused has committed the crime and the Public Prosecutor's Office
understand that in this way you can respond to the prevention requirements that in the case if
make you feel. The requirement of the verification of a minimum of evidence so that it is
proposal for mediation is justified by the need to ensure that this mechanism does not
serve for the cases that should lead to the filing of the process.
Resulting from the mediation agreement, this amounts to the dismissals of the complaint, and may however
this being renewed if the agreement is not met within the agreed time frame, thereby creating
an exception to the provisions of Article 116 (2) of the Criminal Code.
It is not understood to be convenient to overly regulate the internal aspects of
conduct of mediation, such as the number of sessions or the conduct of mediation,
leaving them to the rules themselves of the profession of the mediator, professional deontology and
manuals of "good practice". It is considered mainly necessary to regulate the relationship
between mediation and criminal and procedural criminal systems, particularly the instance that
selects the processes and refers them to mediation, the types of crime in which it may have
place the mediation, the timing of the shipment of the process for mediation, the verification of the
free and enlightened free will and offended to participate in the mediation, the
confidentiality of the content of the sessions, the procedural plotting after mediation and the
right to assistance by lawyer.
It is opposed to start with an experimental programme, taking place initially in a
limited number of constituencies, with a view to its progressive enlargement. This
option, for allowing a training and a follow-up directed to the constituencies
chosen, is the one that potency a greater and better application of mediation. On the other hand,
the option by an experimental program allows for greater flexibility and makes it easier
a future improvement of the regime, based on a monitoring and evaluation.
It is further understood to include the criminal mediation in the framework of the mediation services of the
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judgment of peace, benefiting from the experience of mediation already existing in these courts,
potentiating, by that way, a greater adherence to mediation.
It introduces a model of mediation in which the accused and the offending attend
personally-without the possibility of making themselves represent-for being this the modality
more consentine with the philosophy inherent in mediation: active participation of the people,
joint restoration of social peace. It is for this reason that it refers to "the offending" and not " the
complainant "or" the assistant ", for not wanting to cover other holders of the right to
complaint or persons with the faculty of if they constitute assistants other than the
offended. Only in the case where the offending is a legal person will attend the sessions of
mediation a representative of this.
The option of exempting from the expense mediation is motivated by the conviction that solution
different would be a deterrent factor of acceptance by the procedural subjects of the
participation in mediation. Thus, by the mediation itself there is no place to pay for
costs, applying in the rest the norms of the Book XI of the Code of Criminal Procedure and of the
Code of Judicial Costs.
The preliminary draft of this bill was subject to broad public discussion and the hearing of
various entities and citizens, which have led to several enhancements
regarding the project placed in public debate.
The necessary representations were promoted to the hearing of the Higher Council of the
Magistrate, of the Superior Council of the Public Prosecutor's Office, of the Order of Lawyers,
of the Council of the Officers of Justice and the Follow-up Monitoring Council
of Peace.
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:
Article 1.
Subject
This Law creates the regime of mediation in criminal proceedings.
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Article 2.
Scope
1-A mediation in criminal proceedings may take place in proceedings for a crime whose
procedure depended on complaint or particular charge.
2-A mediation in criminal proceedings can only take place, in due process for a crime that depends
only of complaint, when dealing with crime against persons or of crime against the
heritage.
3-Irrespective of the nature of the crime, mediation in criminal proceedings cannot
take place in the following cases:
a) The legal type of crime provides for imprisonment of more than five years;
b) Whether to handle prosecution for a crime against freedom or sexual self-determination;
c) Whether it is due to prosecution for the crime of embezzling, corruption or trafficking in influence;
d) The offending is less than 16 years old;
e) The accused is a legal person;
f) Be applicable summary or sumptiest process.
Article 3.
Shipment of the process for mediation
1-For the purposes set out in the preceding article, the Public Prosecutor's Office, during the investigation,
if evidence has been collected of whether it has been verified crime and that the accused has been the
your agent, and to understand that in this way you can properly respond to the
prevention requirements that in the case they make themselves felt, means a mediator of the lists
provided for in Article 11 and refers you to the information you consider essential on the
defendants and the offending and a summary description of the subject matter.
2-The mediator contacts the accused and the offending to obtain his / her free consent and
enlightened as to the participation in the mediation by informing them of their rights and
duties and the nature, purpose and rules applicable to the mediation process, and
checks to see if those meet conditions to participate in the mediation process.
3-In case you do not obtain consent or verify that the accused or the offending does not
they meet conditions for participation in the mediation, the mediator informs this the
Prosecutor's Office, continuing the criminal proceedings.
4-If the mediator obtains the free and enlightened consent of the accused and the offending
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for participation in mediation, these sign a term of consent, which
contains the rules to which it obeys mediation, and the mediation process is initiated.
Article 4.
Process of mediation
1-A mediation is an informal and flexible process, conducted by an impartial third party,
the mediator, which promotes the rapprochement between the accused and the offending and supports them in the
attempt to actively find an agreement that allows for the repair of the damage
caused by the illicit fact and contribute to the restoration of social peace.
2-The defendants and the offending may at any time revoke their consent
for participation in mediation.
3-The content of the mediation sessions is confidential, and may not be valued as
evidence in criminal proceedings.
Article 5.
Subsequent tramping
1-Not resulting from the mediation agreement between defendants and offending or not being the
mediation process completed within three months on the shipment of the process
for mediation, the mediator reports from this the Public Prosecutor's Office, continuing the
criminal proceedings.
2-The mediator may ask the Public Prosecutor for an extension, up to a maximum
of two months, of the time limit specified in the preceding paragraph, provided that a
strong probability of reaching an agreement.
3-Result of the mediation agreement, its content is reduced to written, in document
signed by the defendants and the offending, and transmitted by the mediator to the Ministry
Public.
4-In the case provided for in the preceding paragraph, the signing of the agreement amounts to the dismissals of the
complaint on the part of the offending and the non-opposition by the accused, and the
offended, should the agreement not be met within the prescribed time limit, renew the complaint in the
period of one month, the inquiry being reopened.
5-For the purposes set out in the preceding paragraph, the Public Prosecutor's Office checks if the
agreement complies with the provisions of Article 6 and, if so, homologation to desistance
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of complaint within five days, and the office shall immediately notify the
homologation to the mediator, the accused and the offending.
6-Havendo indication of electronic address or fax number or telephone, the
notification referred to in the preceding paragraph is carried out by one of these routes.
7-The processes in which there has been mediation and in which of this has resulted in agreement
are trambed as urgent since the receipt of the agreement by the Public Prosecutor's Office
until the end of the trames to which the n relates. the
5 and 6.
Article 6.
Agreement
1-The content of the agreement is freely fixed by the participating procedural subjects,
without prejudice to the provisions of the following numbers.
2-In the agreement may not include custodial sanctions of liberty or duties that
offending the dignity of the accused or whose fulfillment should be protracted by more than
six months.
3-In order to monitor compliance with the agreement, the Public Prosecutor's Office may draw upon the
social reinsertion services, to criminal police bodies and other entities
administrative.
Article 7.
Suspension of deadlines
1-A The shipment of the process for mediation determines the suspension of the time frame provided for in the n.
1 of Article 283 of the Code of Criminal Procedure and the deadlines for maximum duration of the
survey provided for in Article 276 of the Code of Criminal Procedure.
2-The limitation periods of the criminal procedure suspend themselves from the shipment of the
process for mediation until your return by the mediator to the Public Prosecutor's Office or,
having resulted from the mediation agreement, up to the date fixed for its compliance.
Article 8.
Presence of lawyer in the mediation sessions
In the mediation sessions, the accused and the offending must appear in person,
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may be able to follow up with a lawyer or a trainee lawyer.
Article 9.
Costs
By the mediation process there is no place for the payment of costs, applying in the
Too much the provisions of the Book XI of the Code of Criminal Procedure and the Code of Costs
Judicial.
Article 10.
Exercise of the activity of the criminal mediator
1-In the performance of his duties, the criminal mediator shall observe the duties of
impartiality, independence, confidentiality and diligence.
2-The criminal mediator who, for legal, ethical or deontological reasons, does not have or leave
to have ensured their independence, impartiality and exemption must refuse or
interrupt the mediation process and inform the Public Prosecutor's Office of this, which
carries out its replacement in accordance with that provided for in Article 3 (1)
3-The criminal mediator has a duty to keep professional secrecy in relation to the content of the
mediation sessions.
4-The criminal mediator is bound by the secret of justice in relation to information
procedural that you have knowledge by virtue of participation in the process of
mediation.
5-It is not allowed for the criminal mediator to intervene, in any way, in particular
as a witness, in any procedures subsequent to the mediation, such as the
judicial process or psychotherapeutic follow-up, whether it has been obtained there or
not an agreement and yet such procedures are only indirectly
related to the mediation carried out.
6-A The audit of the activity of the criminal mediators rests with the commission provided for in paragraph 6
of Article 33 of Law No 78/2001 of July 13.
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Article 11.
Lists of criminal mediators
1-They are organised, in the framework of the mediation services of the peace trials, lists
containing the names of persons entitled to exercise the functions of criminal mediator, the
respective professional domicile, e-mail address and contact
telephone.
2-It is up to the Ministry of Justice:
a) To develop the procedures conducive to the enrolment of the mediators in the
lists;
b) Ensuring the maintenance and updating of the lists, as well as their
provision to the services of the Public Prosecutor;
c) Create a system that ensures the sequential assignment of the mediators by the
Prosecutor's Office;
d) Making available the lists of criminal mediators on the official page of the Ministry of
Justice.
3-A The inscription on the lists does not invests the criminal mediator in the quality of agent nor
guarantees payment of any fixed remuneration on the part of the State.
Article 12.
Persons qualified to perform the functions of criminal mediator
1-The lists of penal mediators are filled by a procedure of
selection, and may apply who meets the following requirements:
a) Be more than 25 years of age;
b) Being in the full enjoyment of your civil and political rights;
c) Have adequate degree or professional experience;
d) Be empowered with a course of criminal mediation recognized by the Ministry
of Justice;
e) Being an elderly person for the exercise of the activity of a criminal mediator;
f) Having the domain of the Portuguese language.
2-Among other circumstances, it is indicted for lack of idoneity for enrollment in the
official lists the fact that the applicant has been sentenced by sentence transitioned in
judged by the practice of doleful crime.
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3-The graduation criteria and the terms of the selection procedure are approved
by porterie of the Minister of Justice.
Article 13.
Remuneration of the criminal mediator
The remuneration for the provision of criminal mediator services appears on a table fixed by
dispatch from the Minister of Justice, being supported by appropriations entered in the budget of the
body of the Ministry of Justice to which it is incumbent to promote the means of resolution
alternative of disputes.
Article 14.
Experimental period
1-A as of the entry into force of this Law and for a period of two years, the
criminal mediation works on an experimental basis in the constituencies to be designated by
would pore from the Minister of Justice, which also defines the remaining terms of the
provision of the penal mediation service in these constituencies.
2-During the trial period, the Ministry of Justice adopts the measures
appropriate to the monitoring and evaluation of mediation in criminal proceedings.
3-Elapsed the experimental period provided for in paragraph 1, the extension of criminal mediation to
other constituencies depends on the porterie of the Minister of Justice.
Article 15.
Application in time
This Law applies to criminal proceedings initiated after it comes into force.
Article 16.
Entry into force
This Law shall come into force on the thirtieth day after its publication.
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Seen and approved in Council of Ministers of November 2, 2006
The Prime Minister
The Minister of the Presidency
The Minister of Parliamentary Affairs