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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