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1 PROPOSAL of law No. 107/X explanatory memorandum the Government program of the XVII constitutional Government is committed to making a strong bet on alternative means of resolving disputes while way especially suited to a justice closer to the citizens, expressing, in that criminal matters are concerned, the purpose of developing new forms of mediation and conciliation. In compliance with this requirement, this Bill creates a system of criminal mediation, giving also comply with article 10 of framework decision 2001/220/JHA of 15 March 2001 on the standing of victims in criminal proceedings, requiring Member States to promote mediation in criminal cases relating to offences as 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 comparative experience, the draft law draws the mediation as an informal and flexible process, conducted by an impartial third party, the mediator, that promotes a rapprochement between the defendant and the victim and the supports in an attempt to find an agreement allowing actively repairs – not necessarily pecuniary – the damage caused by the fact that illicit and contributes to the restoration of social peace. The proposal is based also on the various general principles contained in Recommendation 99 (19) on mediation in criminal matters, adopted on 15 September 1999 by the Committee of Ministers of the Council of Europe, establishing, inter alia, the need for a complete information of the participants about their rights and about the mediation process and its procedural consequences, the free consent on participation in mediation and confidentiality of mediation sessions.
The criminal mediation system created by this decree-law applies to all private crimes and certain crimes semi-public-semi-public crimes against people or against-heritage, since punishable by imprisonment not exceeding 5 2 years or with different sanction of prison. Regardless of the nature of the crime, are always excluded from the scope of criminal mediation offenses, crimes of embezzlement, corruption and trafficking of influences, in cases where the victim is under 16 years or where the defendant is a legal person, and where applicable special process summary form or sumaríssima. Thus, in the case of private or semi-public crimes crimes for which admits the mediation, the consignment of the process takes place at any time during the investigation – option that brings gains in terms of procedural economy and speed-, since there are indications that the accused committed the crime and the Prosecutor understands that this can meet the requirements of prevention in the case if you do feel. The requirement of a minimum of checking evidence for that is the mediation proposal is justified by the need to ensure that this mechanism does not serve for the cases that must lead to dismissal. Resulting from the mediation agreement, this is tantamount to withdrawal of the complaint, which may however be renewed if the agreement is not complied with within the time limit agreed upon, thus creating an exception to the provisions of paragraph 2 of article 116 of the criminal code. Don't understand the internals should be excessively regulated the conduct of mediation, such as the number of sessions or the conduct of mediation, leaving them to the rules of the profession of mediator, professional ethics and good practice guides. It is considered especially necessary to regulate the relationship between mediation and the criminal and criminal procedural systems, namely the instance to select processes and refers to mediation, the types of crime in which mediation can take place, the time of remittance of the mediation process, verification of free will and enlightened of defendant and offended to participate in mediation confidentiality of the content of the session, the proceedings after mediation and the right to assistance by counsel.
Opts for begin for an experimental program, running initially on a limited number of constituencies with a view to the progressive your extension. This option, by allowing a training and monitoring aimed at chosen constituencies, is the one that promotes more and better implementation of mediation. On the other hand, the option for an experimental program allows greater flexibility and makes it easier for a future improvement of the regime, on the basis of monitoring and evaluation. Means also include penal mediation in the context of the mediation services of the 3 Justices of the peace, taking advantage of the existing mediation experience in these courts, boosting, in this way, greater adherence to the mediation. Introduces a mediation model in which the defendant and the victim attend in person – with no possibility to represent — for this mode more in line with the philosophy inherent in mediation: active participation of people, joint restoration of social peace. It is for this reason that refers "offended" and not "complainant" or "the Wizard", for not wanting to cover other holders of the right to complaint or people with College to constitute different assistants. Just in case in which the victim is a legal person will attend the mediation sessions a representative of this. The option to exempt the mediation costs is motivated by the conviction that different solution would be a deterrent factor for acceptance by the subject of the participation in the mediation procedure. Thus, mediation itself there is no place for the payment of costs, the rest the rules of Book XI of the code of criminal procedure and the code of legal costs. The preliminary draft of this proposal was the subject of wide public discussion and hearing of several entities and citizens, which led to several improvements in relation to the project placed in public debate.
The necessary steps were promoted to the Superior Council of the judiciary, of the Supreme Council of the Public Ministry, the Bar Association, the Council of the bailiffs and accompanying Council of justices of the peace.
So: 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 creates the system of mediation in criminal proceedings.
4 Article 2 Scope 1-mediation in criminal proceedings can take place in the process by which the crime procedure depends on complaint or private prosecutor. 2-mediation in criminal proceedings can only take place in the process by crime that depend only on complaints in the case of crime against people or crimes against property. 3-regardless 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 exceeding five years; b) in the case of proceedings for crimes against sexual freedom or self-determination; c) in the case of proceedings for the crime of embezzlement, bribery or influence; d) offended is less than 16 years; and) the defendant is a legal person; f) applies process summary or accelerated.
Article 3 Referral process for mediation 1-for the purposes set out in the previous article, the Prosecutor during the investigation have been collected evidence of crime has and that the accused was your agent, and understand that in this way you can respond adequately to the requirements of prevention in the case if you do feel, designates a mediator of the lists provided for in article 11 and brings you information you consider essential on the defendant and the offended and a summary description of the object of the process. 2-the mediator contacts the accused and the victim to obtain your informed consent regarding the participation in the mediation, informing them of their rights and duties and of the nature, purpose and rules applicable to the mediation process, and checks to see if those meet the conditions to participate in the mediation process. 3-If you do not obtain consent or check that the accused or the victim does not meet conditions for participation in the mediation, the mediator shall inform the public prosecutor's Office, continuing the criminal process. 4-If the mediator obtains the informed consent of the accused and of the offended 5 for participation in mediation, they sign a consent form, which contains the rules that obeys the mediation, and starts the process of mediation.
Article 4 1-mediation process mediation is an informal and flexible process, conducted by an impartial third party, the mediator, that promotes a rapprochement between the defendant and the victim and the supports in an attempt to find actively an agreement allowing the repair of damage caused by the fact that illicit and contributes to the restoration of social peace. 2-the accused and the victim may at any time revoke your consent for participation in mediation. 3-the content of the mediation sessions are confidential and may not be valued as evidence in criminal proceedings.
Article 5 Conduct subsequent
1-Not resulting from the mediation agreement between defendant and offended or not the mediation process completed within three months on the referral of the case to mediation, the mediator shall inform the public prosecutor's Office, continuing the criminal process. 2-the mediator may ask the public prosecution an extension up to a maximum of two months, the period referred to in the preceding paragraph, provided that there is a strong probability of reaching an agreement. 3-Resulting from the mediation agreement, your content is reduced to writing in a document signed by the defendant and by the offended, and transmitted by the mediator to the public prosecutor. 4-in the case referred to in the preceding paragraph, the signing of the agreement is tantamount to withdrawal of the complaint by the offended and the Non-opposition on the part of the accused, and the offended, if the agreement is not complied with within the prescribed period, renew the complaint within one month, being reopened the investigation. 5-for the purposes set out in the preceding paragraph, the public prosecutor's Office checks whether the agreement complies with the provisions of article 6 and, if so, must approve the cancellation 6 complaints within five days, and that the Secretariat notify the approval to the intermediary, the defendant and the offended. 6-going on indication of email or fax or phone number, the notification referred to in the preceding paragraph is carried out by one of these routes. 7-the procedures in which there has been mediation and in this has result agreement are handled as urgent since the reception of the agreement of the public prosecutor until the end of the procedures referred to in paragraphs 5 and 6.
Article 6 1 Agreement-the content of the agreement is freely set by the procedural subjects participants, without prejudice to the provisions laid down in the following paragraphs. 2-the agreement cannot include custodial penalties or duties that offend the dignity of the accused or compliance with which should extend for more than six months. 3-To check compliance with the agreement, prosecutors can use the services of probation, the criminal police bodies and the other administrative bodies.
Article 7 suspension of time limits 1-the consignment of the mediation process determines the suspension of the time limit laid down in paragraph 1 of article 283.º of the code of criminal procedure and the time limits of maximum duration of the investigation provided for in article 276.º of the code of criminal procedure. 2-The time limits of the criminal procedure shall suspend from the referral of the case to mediation until your return by the mediator to the Prosecutor or, having a result of mediation agreement, until the date fixed for your compliance.
Article 8 presence of lawyer in mediation sessions in the sessions of mediation, the defendant and the victim must attend personally, 7 and may be accompanied by a lawyer or lawyer trainee.
Article 9 Costs by the mediation process there is no place for the payment of costs, applying the provisions in Book XI of the code of criminal procedure and the code of legal costs.
Article 10 conduct of the mediator 1 criminal activity-in the performance of its functions, the mediator must observe the criminal duties of impartiality, independence, confidentiality and diligence. 2-the criminal mediator, for legal reasons, ethical or professional ethics, has not or no longer have ensured the independence, impartiality and your disclaimer should refuse or discontinue the mediation process and inform the public prosecutor, who shall your replacement as provided for in paragraph 1 of article 3 3-the penal mediator has a duty to keep professional secrecy in relation to the content of the mediation sessions. 4-the mediator is bound to secrecy of criminal justice in relation to procedural information that have knowledge by virtue of the participation in the mediation process. 5-penal mediator is not allowed to intervene, in any way, in particular as a witness in any subsequent mediation procedures, as the lawsuit or psychotherapeutic, whether follow-up has there obtained a deal and that such procedures are only indirectly related to the mediation. 6-the supervision of the activity of the criminal intermediaries the Commission referred to in paragraph 6 of article 33 of law No. 78/2001 of 13 July.
8 article 11 criminal mediators 1-lists are organized within the framework of the mediation services of the Justice of the peace, lists containing the names of persons authorized to exercise the functions of a mediator, their professional domicile, e-mail address and phone number. 2-it is the responsibility of the Ministry of Justice: a) Develop procedures leading to the registration of mediators in the lists; b) Ensure the maintenance and updating of the lists, as well as your availability to services of the Public Ministry; c) introduce a system ensuring the sequential designation of mediators by prosecutors; d) Provide lists of mediators in Criminal Justice Ministry official page. 3-the inscription on the lists does not invest the penal mediator acting as agent or guarantee the payment of any remuneration fixed by the State.
Article 12 persons qualified to perform the task of mediator 1 penal-penal mediators lists are populated by a selection procedure and may apply who meet the following requirements: a) Have more than 25 years of age; b) Be in full enjoyment of their civil and political rights; c) degree or appropriate professional experience; d) be enabled with a penal mediation course recognized by the Ministry of Justice; and) being a person suitable for the activity of criminal mediator; f) have dominion of Portuguese language. 2-among other circumstances, is evidence of lack of suitability for registration in the official lists the fact that the applicant has been sentenced by final judgment for a felony offense. 9 3-graduation criteria and the selection procedure are approved by order of the Minister of Justice.
Article 13 remuneration of the mediator the remuneration for criminal provision of penal mediator consists of table fixed by order of the Minister of Justice, being supported by appropriations entered in the budget of the Office of the Ministry of Justice to which the responsibility to promote the means of alternative dispute resolution.
Article 14 1-trial period from the entry into force of this law and for a period of two years, criminal mediation works on an experimental basis in the constituencies to be designated by order of the Minister of Justice, which also defines the other terms of the provision of the service of criminal mediation in these constituencies. 2-During the trial period, the Ministry of Justice shall adopt appropriate measures for the monitoring and evaluation of mediation in criminal proceedings. 3-after the trial period provided for in paragraph 1, the extent of criminal mediation to other constituencies depend on order of the Minister of Justice.
Article 15 Application in time this law shall apply to criminal cases started after your entry into force.
Article 16 entry into force this law shall enter into force on the 30th day after your publication.
10 Seen and approved by the Council of Ministers of 2 November 2006 Prime Minister the Minister of Parliamentary Affairs Minister Presidency
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