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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