Key Benefits:
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PROPOSED LAW NO. 135 /X
Exhibition of Motives
The Military Discipline Regulation, approved by the Decree-Law No. 142/77 of April 9,
approaches the 30 years of the duration. During this period, several occurred
modifications to the general legislation of administrative litigation, not least from the
reform that came into force from 2004. As a result of the profound changes
introduced by the Code of Procedure in the Administrative Courts, the military discipline
became subject to a procedural regime that creates difficulties in the appropriate articulation between the
own values of military discipline, on the one hand, and the tutelage of rights, freedoms and
guarantees from the military, on the other.
It thus becomes a patent for the need for revision of the Regulation of Discipline itself
Military, to be promoted by the Government within 90 days of the entry into force of the
present law, review that within which the sanctionatory framework will be reconsidered
currently beholdant, with the extinction of the penalty of aggravated disciplinary imprisonment out of time
of war and situations that are equiparable to you.
However, it matters from already establishing an appropriate articulation between the normatives
specific disciplining of the Armed Forces-whose specificity, it will contain, has
constitutional seat-and the general rules of protection of citizens against acts of the
public administration. It is about recognizing that the act that applies rules of discipline
military is not an undifferentiated administrative act, but rather an administrative act with
very specific characteristics, which imports acautelar in its own headquarters.
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With this law, a regime is introduced that, not veheing to the military of the Forces
Armed access to any of the general procedural means, including caucuses, creates
own requirements for their decrement when the act is practiced in respect of
military discipline, under the Regulation of Military Discipline.
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
1-A This Law establishes the special arrangements for proceedings relating to acts
administrative application of disciplinary sanctions provided for in the Regulation of
Military Discipline.
2-To the processes referred to in the final part of the preceding paragraph shall apply the provisions of
Code of Procedure in the Administrative Courts, with the modifications resulting from the
present law.
Article 2.
Special arrangements for the precautionary suspension of effectiveness of administrative acts in
matter of military discipline
When the suspension of effectiveness of an administrative act practiced to the effect is required
shelter from the Military Discipline Regulation there is no place to the automatic prohibition of
carry out the administrative act, provided for in Article 128 of the Code of Procedure in the
Administrative Courts.
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Article 3.
Special criterion for decision making of cautionary measures in discipline
military
Without prejudice to the provisions of paragraphs 2, 3 and 5 of Article 120 of the Code of Procedure in the
Administrative Tribunals, the cautionary arrangements in respect of military discipline,
notably those involving the suspension of effectiveness of acts of feathering or
disciplinary sanctions, can only be enacted when there is founded fear of the constitution
of a fait de facto situation and is evident from the provenance of the claim, formulated
or to be formulated in the main process, for the treatment of:
a) Manifestly unlawful act;
b) Act of application of a standard already previously overturned;
c) Act materially identical to another already previously annulled or declared null
or non-existent.
Article 4.
Interim decrement of cautionary measures on military discipline
1-The provisional decrement of the precautionary measures of suspension of effectiveness of
administrative acts that apply the disciplinary sanctions provided for in the Regulation of
Military Discipline depends on the fulfillment of the criteria set out in the previous article,
ascertained summarily.
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2-A Decision on the provisional decrement of the cautionary measures referred to in the
previous number is mandatorily preceded by hearing of the required entity, and may
same to be carried out by any means expeted, preferably by telefax or mail
electronic.
Article 5.
Subpoena for protection of rights, freedoms and guarantees
1-For the purposes of Article 109 of the Code of Procedure in the Administrative Courts, the
non-verification of the assumptions of the provisional decrement of a cautionary providence,
in the terms of the previous article, does not amount to the impossibility or insufficiency of the
provisional decrement.
2-In the situations of particular urgency provided for in Article 111 of the Code of Procedure in the
Administrative Courts, related to military discipline matter, any decision
it is mandatorily preceded by the hearing of the respondent, and may be carried out by
any means expeted, preferentially by telefax or e-mail.
Article 6.
Jurisdictional competence in the function of matter
It is incumbent on the Administrative Contentious Section of each Administrative Central Court
know, in 1 th instance, of the proceedings relating to administrative acts of application of the
disciplinary detention or more gravous sanctions.
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Article 7.
Military Judges and Military Advisors
The Government shall, within 90 days, propose the legislative measures to provide for the
form of intervention of Military Judges and Military Advisors of the Public Prosecutor's Office
together with the courts referred to in the previous article.
Article 8.
Entry into force
This Law shall come into force on the day following that of its publication.
Seen and approved in Council of Ministers of May 3, 2007
The Prime Minister
The Minister of the Presidency
The Minister of Parliamentary Affairs