Key Benefits:
People's Party CDS-PP
Parliamentary Group
Assembly of the Republic-Palace of S. Bento-1249-068 Lisbon-Telephone: 21391 9233-Fax: 21391 7456 Email: gp@pp. parlamento.pt
DRAFT LAW NO. 368 /X
Amendment to the Code of Criminal Procedure
1-With the present Draft Law, the CDS-PP comes to propose a set of changes to the
Code of Criminal Procedure, in the matters reaching the regime of the secret of justice, to the
evidence, to the coaction measures, at the stage of instruction, to the procedural treatment of the small
and average criminality, the status of the victim in criminal proceedings, and the crimes against the
freedom and sexual self-determination and against the protection due to minors.
2-The principle of the presumption of innocence of the accused to the transit on trial of the
sentence of conviction comes enshrined in the art. 32º/2 of the Constitution of the Republic
Portuguese, and, quite so, in the Universal Declaration of Human Rights, in the
European Convention on Human Rights and in the Declaration of Human Rights and
of the Citizen, being certain, however, that none of these texts defines what the content is
of that principle, and being equally certain that the concrete content of that
principle / law is, then, shaped in each legal order.
Linked to the right to the presumption of innocence the Constitution enshrines another: the right to
all defence guarantees, which one may consider a necessary consequence
of that. All the necessary rights to the defense are, want the ones that the law enshrines
expressly wants those who are inferred from the general principles of the system (v.g,
communication to the accused subject to coping measures of the concrete facts that indict
the assumptions of the coaction measures).
The relations between the presumption of innocence and freedom of expression can be of
collaboration or conflict, being more often of conflict. It's mister to resist,
however, to the frequent temptation to hierarchize the rights and notably to sacrifice the
freedom of information for the benefit of the presumption of innocence.
2
The CDS-PP considers it not to have committed this sin in the proposals on secrecy of
justice-whose regime is relaxed, aiming at the reconciliation of the two interests
protected, the interest of the investigation and that of the presumption of innocence of the accused-the
which then elate:
a) Amend Article 86 (4), emphasising that the mere knowledge of
constant elements of a process, even if there is no direct contact with the
even, it appears sufficient to legitimize the binding to the secret of justice;
This standard aims, specifically, for journalists. In fact, a general interdiction of
publication of subject matter of ongoing proceedings would counteract frontally the
provisions of the art. 10º of the European Convention on Human Rights; but that does not
dispensing journalists from a duty of professional rigor-already not to speak of the duty of
prudence of all actors in the criminal proceedings-which should prevent them from speculation
likely to influence the course of Justice.
b) A paragraph 10 is added to Article 86, which aims to allow the provision of clarifications
to the assistants and to the offending about the progress of the investigations, without prejudice,
how natural it is, of the preservation of the effectiveness of the latter;
c) In what concerne the procedural acts practiced in crimes against freedom and
sexual self-determination and against the protection due to minors, the rule is the exclusion
of publicity, regardless of the age of the victims, mindful of the devastating effects
that advertising is likely to provoke;
d) In the event of an agreement between the Public Prosecutor's Office, the accused and the assistant, it is consected to
possibility of the judge allowing the procedural subjects to have access to all the self
the one that rents out the No. 2 of the art. 89º, without prejudice to the maintenance of the duty to keep secret
of justice;
e) Preview the possibility of the judge allowing, the application of the accused and heard the
Prosecutor's Office, during the time frame for the interposition of the appeal, the consultation of the parts
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procedural that have constituted grounds for the application of the coaction measure
of remand, save if, weighted the interests involved, consider that of the
your inquiry results in injury to the research;
f) It is finally reforced the rule that the secret of justice finishes with closure
of the investigation, and may from that time the procedural subjects examine the
process free of charge outside the registry, provided that the competent judicial authority
authorizes the trust of the process.
It has not opted, here, for reserving the investigatory secret for the most serious crimes,
because gravity, for research purposes, is something very relative: a crime
punishable with a penalty up to 5 years in prison can be much more difficult to investigate from the
that a crime punishable by up to 16 years, and justify the secret to the one and not
have an interest in this.
4-An improvement of the evidence regime is sought, in the matter of proof by
recognition and expert evidence, which ensure more effectively the guarantees of
defense of the accused and ensure a greater arrhythmism to the constitutional text, namely
at No. 4 of the art. 32º from CRP.
5- Also if they enshrine some innovations in the headquarters of means of obtaining the proof,
notably, as to the searches and wiretapping:
5.1-With respect to the searches, it is recalled that the Constitutional Law No. 1/2001, between
others, amended Article 34 (3) in the sense of allowing searches to be carried out
domiciliaries during the period that medees between 21 and 7 pm, when they are in
causes situations of flagrant offence or upon judicial authorization in cases of
especially violent or highly organized crime, including terrorism and
the trafficking of persons, weapons and narcotics. This change to the text
constitutional has resulted from a standard of the draft constitutional revision of the CDS-PP,
logrou to obtain the necessary consensus at the headquarters of the Revision Eventual Commission
Constitutional, very much by force of the input brought to the committee by whom
recognized in this standard an important auxiliary of criminal investigation and prevention.
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The realization of this constitutional standard lacks the intermediation of ordinary law, the
what takes effect by amending the relevant provisions of the Code of
Criminal Procedure (arts. 177º and 251º);
5.2-A The matter of the telephone wiretaps has been cause of accentuated barns, in the
newer times, for sober reasons known. Not so long ago,
of the rest, the Minister of Justice took the initiative to invite the Members of the Commission
of Constitutional Affairs, Rights, Freedoms and Guarantees for a visit to the Police
Judiciary, and it has been possible to see "in locu" the way in which the catchment is carried out and
registration of telephone conversations.
It is by everyone felt the need to carry out an assessment about the standards
reach out to the telephone wiretaps enshrined in the current criminal procedural law, mindful of the
rigorous constitutional parameters in presence-plastered, since soon, in the norms
constants of Article 32 (8) and of the n. the
1 and 4 of Article 34 of the Basic Law.
In this context, the following solutions are proposed:
a) Consagra expressly, in a new paragraph 2 of Article 187, a delimitation
normative of the universe of persons or telephone connections liable to be targeted
wiretapping;
b) Attribution to the criminal sections of the Supreme Court of Justice the competence for
order or authorize the interception, recording or registration of talks or
communications made by the President of the Republic, by the President of the Assembly
of the Republic or by the Prime Minister;
c) Assign to the criminal sections of the Relations the competence to order or authorize
the interception, recording or registration of talks or communications carried out by
holders of organs of sovereignty;
d) To the effect of strengthening the control of the judge in respect of the collected elements
through the authorised or orderly operations set out, in Article 188 (1),
that the self of interception and recording, the engraved tapes and any analogous elements
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shall be brought to the notice of the judge who has ordered them or authorised within the term of
five days;
e) Passes to be predicted (new Article 187 (3)) a maximum term of the duration of the
wiretaps (three months) eventually renewable for identical periods, in the conditions there
predicted;
f) They are added to the catalogue of crimes set out in Article 187 (1), by
introduction of two new points, the crimes against freedom and self-determination
sexual and against the protection due to minors, thus allowing for interception and the
recording of conversations or telephone communications independently of the frame
abstract in question in the various penal types.
g) As important as the measures referred to in point (d), it is the measure by which the judge
decides for the destruction of what to understand is not justified to maintain. Changes thus to
constant rule of the current Article 188 (3) of the Code, according to which the judge
orders the destruction of the collected elements deemed irrelevant to the evidence,
this without prejudice to predicting the possibility of the accused and the assistant as well as the
people whose talks have been listened to, require the judge-to which they stay
entrusted in exclusive to the collected elements-which order the transcript of
previously non-transcribed elements, with a view to completing or
contextualize the constant instructual of the autos;
h) Adapt to the constant norm of Article 190 to the future approval of the own regime of
obtaining electronic digital proof, making clear the general norm nature of the article
190. of the Code of Criminal Procedure in the face of the special standards that will regulate that
matter, facilitating, in this way, a correct interpretation and coordination of the various
parts of the system.
6-In what concerns the coating measures, the desiderate pursued consists of the
deepening of the defendants ' guarantees, in the frame of a complex weighting
legislative that safeguards the indispensable balance to be established between the various
constitutionally tuteled interests in confrontation.
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Statistical indicators point out in the sense that, of the casting of coaction measures
provided for in the Code of Criminal Procedure, the most used are the term of identity and
residence (the least gravous of that cast) and, soon to follow, preventive detention (the most
gravy of all), also checking an under-utilisation of the remaining 5 measures
of coaction. With the present amendment, it is intended to give a signal in the direction of the reinforcement of
use of the intermediate gravity coaction measures. In these terms:
(a) It is introduced to compulsory hearing of the accused when applying (para. 2 of the
Article 194) and reexamination (Article 212 (4)) of coaction measures,
compulsory that only cede in the cases of impossibility;
b) Within the framework of the articulation of the regime of the secret of justice with the duty of
statement of reasons for the order to implement coping measures in the course of the
survey, changes in the sense of a greater requirement of the duty of
rationale for pretrial detention, highlighting a special duty of specification
of the de facto motives of the decision, in order to enable a proper control of the good
founded of the dispatch that imposes it and, consequently, a better exercise of the right
of defence, without at risk the essential interests of research;
c) In accordance with the new wording of Article 204 (c), the danger of " disturbance
of the order and public tranquility " as a ground for the implementation of the measures
of coaction becomes to assume a residual nature, owing to that disturbance
present themselves especially serious;
d) In what tange the preventive prison in particular, it is incumbent on the legislator to roam from all
the necessary and reasonable cautionary the application of a measure that focuses on citizens
that they are presumed innocent and that it is an extreme gravity;
e) In the same senda, it appears possible to proceed to the reassessment of the time limits
maximum pre-trial detention, provided for in Article 215 of the Code, having in due line
consideration of the subject matter of the maximum duration of the various stages of the procedure
Portuguese penal. Thus, and given that this legislative measure should be set up
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and sustained in an integrated analysis of the structure of our criminal proceedings, moves forward
Cautious manner, reducing the time limits currently planned by about 1/4, save in the
regard to the time limits laid down in Article 215 (3) of the Code. In these cases,
where the procedure is for one of the crimes referred to in paragraph 2 of the same precept and if
reveals of exceptional complexity, prudence advises to keep up
intact the deadlines presently set out in the law;
f) The addition of a paragraph 5 to Article 212 and the amendment to Article 375 (4) shall be aimed at
correct a distortion in the practical application of the rule according to which in the cases of
sentencing sentence, the coaction measures only extinguish with its transit
on trial. It follows that, when the accused subject to preventive detention is
doomed the higher sentence to the prison already suffered and has been brought into appeal, continue to
be carried out the said coaction measure, and it may not be applied to the institutes
provided for in the law for convicts.
g) The discipline of the obligation to remain in housing is revised with two objectives
in mind: first, by equating your regime with that of preventive detention, determining
the officious review, every three months, of the livelihood of its assumptions (article
213.) and enshrining a particular cause of extinction (Article 214 (2)); in
second place, allowing your cumulation with the obligation not to contact with
certain persons or of not attending certain places or certain means.
7-Regarding instruction, it wanted to strengthen its dominating phase characteristics
by the principles of celerity, adversarial and equality of arms. Thus:
a) The Public Prosecutor's Office, the accused, the defender, the assistant and his / her lawyer go through
be able to attend to the acts of instruction by any of them required and to exercise fully
the adversarial, sustaining requests for clarification and requiring the realization of
instances to the witnesses and declarants (Article 289 (2));
(b) the reduction of the respective deadlines for maximum duration, provided for in Article 306, in
about one ¼, with the exception of deadlines for inquiries for crimes of
exceptional complexity (paragraph 3 of the art. 215º).
8
8-In order to encourage in a decided manner a greater application of the mechanisms
provided for in the Code for the procedural treatment of small and medium crime,
changes the discipline of the provisional suspension of the process and the sumptive process,
in line with the recommendations formulated in the Report of the Study Commission and
Debate of the Reformation of the Prison System.
Regarding the provisional suspension of the procedure, the requirement of the absence of
criminal background of the accused, passes to allow himself to be the accused himself
apply for the suspension of the process (currently, the suspension decision is from the
liability of the Public Prosecutor's Office, subject to the concordance of the investigating judge
criminal) and extends the application of this institute also to the sumptiest process.
Regarding the summary process and the abbreviated process, merge these two
procedural forms in a single, designated "simplified process", which will have, despite
of this, a more comprehensive field of application than those. In consequence, second
a principle of speed that is intended to print to the realization of criminal justice, fixed-
if the hearing is to be held, at the limit, within the maximum period of 180 days after the
date of the practice of the facts and that these judgements should be marked with priority
about the rest. This without prejudice to the fulfillment of the temporal limits applicable to the
cases of flagrant offence, as per the constant norm of the new paragraph (c) of paragraph 2 of the
article 103, pursuant to which the respective procedural acts have an urgent nature.
9-In relation to crimes against freedom and sexual self-determination and against the
protection due to minors, it is known that the CDS-PP has stood for the need of
effective combat for paedophilia, prostitution and child pornography, crimes that, by its
particularly violent nature and nowadays with a practice linked to powerful
networks that abduct, exploit, and torture minors, generate in social sensitivity a factor
of founded concern or, even, of consternation. In this sense, considering the
enormous social disvalue that results from the practice of these crimes, makes sense that the realization
of justice be done with particular speed. That speed is the best answer to
legitimate concerns of all those who, like us, understand that there can be no
time to lose when it comes to crimes of this nature. The proposed amendment focuss,
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so, not only in this need of urgency, as in the recognition that in the
realization of justice there is a need, obvious, to give priority to what
we consider it truly important. It is the case with the cases concerning the crimes
practiced against the freedom and sexual self-determination of minors.
In addition to the innovations with incidence in this matter already referred to, it also fulfils
refer to the addition (art. 271º) of standards relating to declarations for future memory,
which should go on to predict that always the victim's respondent, in the course of the
inquiry, in prosecutions for crimes against freedom and sexual self-determination and
against the protection due to the minors.
10-Adoption still transitional provisions with respect to the application in the time of
article 306 and the entry into force of Article 215 of the Code of Criminal Procedure, in the
wording introduced by this diploma.
Thus, the undersigned Deputies present the following draft law:
Article 1.
Amendments to the Code of Criminal Procedure
Articles 11, 12, 38, 61, 87, 89, 94, 103, 131, 131, 131, 131, 131, 131, 131, 131, 131
147, 154, 159, 160, 177, 188, 190, 193, 201, 202, 202, 202, 202, 202, 202.
204, 212, 213, 215, 221, 246, 251, 269, 281, 281, 281, 281, 281, 281, 281, 281
286, 288, 289, 326, 349, 356, 372, 375, 384, 384, 384, 384, 384, 384, 384, 384
385, 386, 387, 390, 391, 407, 407, 407 and 456 of the Code of Criminal Procedure, 392.
approved by Decree-Law No. 78/87, of February 17, and amended by Decrees-Laws
n. os
387-E/87, of December 29, and 212/89, of June 30, by Law No. 57/91, 13
of August, by the Decrees-Leis n. the
423/91, of October 30, 343/93, of October 1,
and 317/95, of November 28, by the Leis n. the
59/98, of August 25, 3/99, of 13 of
January, and 7/2000, of May 27, by the Decree-Law No. 320-C/2000 of December 15,
by the Leis n. the
30-E/2000, of December 20, and 52/2003, of August 22, and by the
Decree-Law No. 324/2003 of December 27, shall be replaced by the following:
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" Article 11.
(...)
1-(...)
2-(...)
3-Compete to the criminal sections of the Supreme Court of Justice, in criminal matters:
a) (...)
b) (...)
c) (...)
d) (...)
e) (...)
f) (...)
g) (...)
(h) Order or authorize the interception, recording or registration of talks or
communications, pursuant to Articles 187 and 190, when carried out by the
President of the Republic, by the President of the Assembly of the Republic or by the
Prime Minister;
i) (Previous point (h))
4-(...)
Article 12.
(...)
1-(...)
2-Compete to the criminal sections of relations, in criminal matters:
a) (...)
b) (...)
(c) Order or authorize the interception, recording or registration of talks or
communications, pursuant to Articles 187 and 190, when made by
holders of organs of sovereignty, save those referred to in paragraph 2 (a) and in the
article 11;
d) (Previous point (c))
e) (Previous point (d))
11
f) (Previous point (e))
g) (Previous point f)
h) (Previous point (g))
i) (Previous point (h))
3-(...)
Article 38.
(...)
1-(...)
2-(...)
3-(...)
4-(...)
5-If the request of the accused, the assistant or the civil parties is considered
manifestly unfounded, the applicant is sentenced to the payment of a sum between
10 UC and 50 UC.
Article 45.
(...)
1 - The refusal must be required and the escusa must be sought, to them by soon joining the
supporting elements, in the face of:
a) (...)
b) (...)
2-A submission of application for refusal has for effect the suspension of the process, without
injury to be carried out, by the visiting judge, if this is indispensable, the acts
urgent procedural.
3-(Previous n. 2)
4-(Previous n. 3)
5-The court has a period of thirty days, after the delivery of the application for
refusal or the request for escusa, to decide on the same, taking in
consideration, in the event that the refusal is required, the response of the target judge and the
court-ordered representations.
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6 - If the court refuses the application of the accused, the assistant or the civil parties by
manifestly unfounded, condemns the applicant for the payment of a sum between 10
UC and 50 UC.
Article 61.
(...)
1-The accused shall enjoy, in particular, at any stage of the proceedings and, save the exceptions of the
law, the rights of:
a) (...)
b) (...)
c) To be informed of the facts that are charged to you before, in the course of
survey, provide statements before any entity;
d) (Previous point (c))
e) (Previous point (d))
f) (Previous point (e))
g) (Previous point f)
h) (Previous point (g))
i) (Previous point (h))
2-A Private communication referred to in paragraph (f) of the preceding paragraph takes place in sight
when so they impose security reasons, but in conditions of not being heard
by the in-charge of surveillance.
3-(...)
Article 86.
(...)
1 - The criminal procedure is, under penalty of nullity, public, from the instructional decision or,
if the statement does not take place, from the time it may not already be required. The process
is public fining the deadline for the receipt of the application for the opening of the instruction,
if the statement is required only by the accused and this, in the application, does not state
that is opposed to advertising.
2-(...)
13
3-(...)
4-The secret of justice binds all procedural participants, as well as the
people who, by any title, have taken contact with the process or
knowledge of elements to it belonging, and implies the prohibitions of:
a) (...)
b) (...)
5-(...)
6-(...)
7-(...)
8-(...)
9- (...)
10-The secret of justice does not further undermine the provision of clarifications to the
assistants and the offending about the progress of the investigations.
Article 87.
(...)
1-(...)
2-(...)
3 - In case of prosecution for crimes against freedom and sexual self-determination or
against the protection due to minors, the procedural acts arise as a rule with
exclusion of advertising.
4-(...)
5-(...)
6-(...)
Article 88.
(...)
1-(...)
2-(...)
a) (...)
b) (...)
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c) The publication, by any means, of the identity of victims of crimes against the
freedom and sexual self-determination or against the protection due to minors;
d) The publication, by any means, of the identity of victims of crimes against the
honour or against the reservation of private life, prior to the hearing, or even after,
if the offending is less.
3-(...)
Article 89.
(...)
1-(...)
2 - If, however, the Public Prosecutor's Office there is not yet deducted prosecution or prowound
dispatch dispatch of the investigation, the accused, the assistant, if the procedure
criminal not to depend on particular charge, and the civil parties may only have access to
auto in the part concerning statements provided and to requirements and memorials by them
presented, as well as to the representations of evidence to which they could attend or to questions
incidental to which they should intervene, without prejudice to the provisions of the n. the
3 and 4 of the
present article , in Art. 86 (5) and Article 194 (3). For the purpose, the parties
referred to from the auto shall be avulsed in the office by photocopying, by the time limit of three days, without
injury to the progress of the process. The duty to keep secret of justice persists to
all.
3-May, however, the judge, with the concordance of the Public Prosecutor's Office, of the accused and of the
assistant, allow the persons mentioned in paragraph 1 to have access to all the self. The
duty to keep secret of justice persists for all .
4-The judge, the defendant's application, and heard the Public Prosecutor's Office, allows his / her
defender, during the time frame for the interposition of the feature, the consultation of the parts
procedural that have constituted grounds for the application of the measure of coaction
of remand, save if, weighted the interests involved, consider that of the
your inquiry results in injury to the investigation.
5-If the Public Prosecutor's Office there is deducted charge or delivered order from
archiving of the survey, the persons mentioned in paragraph 1 are entitled to examine the
process free of charge outside the registry, as long as they require it to the judicial authority
competent and this, setting the deadline for such, authorizes the confidence of the process .
15
6-(Previous n. 4).
Article 94.
(...)
1-(...)
2-For the practice of acts referred to in the preceding paragraph, they should preferably be
used typewriters or word processors, in which case it is certified,
prior to the signing, that the document was fully reviewed and identifies the entity
that elaborated it.
3-(...)
4-(...)
5-(...)
6-(...)
Article 103.
(...)
1-(...)
2-Except for the provisions of the preceding paragraph:
a) (...)
b) (...)
c) Procedural acts relating to the processes referred to in point (a) of the article
381.
d) Procedural acts relating to crimes against freedom and self-determination
sexual or against the protection due to minors;
e) (Previous point (c))
3-(...)
Article 104.
(...)
1-(...)
16
2-Run on holiday the deadlines for processes in which they should practise the
acts as referred to in points (a) to (d) of paragraph 2 of the preceding Article.
Article 110.
(...)
If the request for procedural acceleration of the accused, the assistant or the civil parties is
manifestly unfounded, the court, or the judge of instruction, in the case of paragraph 2,
Article 108 (a), condemns the petitioner in the payment of a sum between 10
UC and 50 UC.
Article 131.
(...)
1-(...)
2-(...)
3-Addressing the testimony of minor in crimes against freedom and
sexual self-determination or against the protection due to minors, may take place
expertise on the personality.
4-(...)
Article 147.
(...)
1-(...)
2-(...)
3-(...)
4-The recognition is chaired by the competent judicial authority, the person being
recognizing compulsorily assisted by advocate.
5-(Previous n. 4)
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Article 154.
(...)
1-A expertise is ordered, officiously or by the application, by order of the authority
judicial, save if you have by object person and this does not provide your consent, should
in which it is ordered by order of the judge.
2-The dispatching referred to in the preceding paragraph contains the name of the experts and the indication
summary of the subject matter of the expertise, as well as, preceding the hearing of the experts, if possible, the
indication of the day, time and place in which it will be carried out.
3-(Previous n. 2)
4-(Previous n. 3)
Article 159.
(...)
1-A medical-legal expertise is dewound to the delegations and the medico-legal offices of the
National Institute of Legal Medicine or, when this is not possible, to doctors
contracted by the same Institute for the exercise of expert functions in the comarcas.
2-The medico-legal expertise referred to in the preceding paragraph in which the
need for specialized medical training in other fields and which cannot be
carried out in the delegations and medico-legal offices of the National Institute of
Legal medicine shall be carried out, by indication of the same Institute, in health service,
preferentially integrated into the national health service.
3 - The provisions of the previous figures are correspondingly applicable to the expertise
on psychiatric issues, in which they can also participate in specialists in
psychology and criminology.
4-(Previous n. 3)
Article 160-The
(...)
1 - The perices referred to in Articles 152 and 160 may be carried out by entities
18
third parties that to so much have been hired by whoever had to carry them, since
that those do not have any interest in the decision to be delivered or link with the
assistant or with the accused.
2-(...)
Article 172.
(...)
1-If someone wishes to evade or obstinate any examination due or to provide
thing that should be examined, can be compelled by decision of the judge.
2-(...)
Article 177.
(...)
1-(...)
2-Home searches can be carried out between 21 and 7 pm, without
consent of the vises, and observed the requirements of the previous number, in cases of
especially violent or highly organized crime, including terrorism and
the trafficking of persons, weapons and narcotics.
3-Can the criminal police bodies proceed to house searches without prior
authorization of the judicial authority, in the time period provided for in the preceding paragraph,
upon arrest in flagrante for a crime to which he corresponds with prison sentence. Is
correspondingly applicable the provisions of Article 174 (5).
4-(current n. 2)
5-(current n. 3)
6-(current n. 4).
Article 187.
(...)
1-A interception and the recording of talks or telephone communications can only
be ordered or authorized, by order of the judge, as to crimes:
19
a) (...)
b) Against freedom and sexual self-determination;
c) against the protection due to minors;
d) (Previous point (b))
e) (Previous point (c))
f) (Previous point (d))
g) Of injury, of threat, of coerce, of devout of private life and disturbance
of peace and quiet, when committed through telephone, if there are reasons
to believe that the diligence will prove to be of great interest to the discovery of the
truth or for the proof.
2-A interception and the recording of talks or telephone communications can only
be ordered or authorized in respect of suspects or persons in respect of which
it is possible to admit, on the basis of determined facts, that they receive or transmit
communications coming from the suspects or to them targeted, or that the suspects
use your phones .
3-The order that orders or authorizes the interception and recording of talks or
telephone communications is reasoned and fixed the maximum period of its duration, by
a period of not more than three months, being renewable for identical periods since
if they hold the respective assumptions of admissibility.
4-(Previous n. 2)
5-(Previous n. 3)
Article 188.
(...)
1-From the interception and recording to which the previous article is referred to is washed auto, which,
together with the engraved tapes or analogous elements, it is within five days taken to the
knowledge of the Public Prosecutor's Office that has promoted the operations and the judge that the
has ordered or authorized, with the indication of the passages of the recordings or
analogous elements deemed relevant to the proof.
2-(...)
3 - If the judge , listened to the Public Prosecutor , consider the elements collected, or
some of them, relevant to the proof, orders your transcript in auto and fab it join the
20
process.
4-(...)
5-Without prejudice to the provisions of Articles 86 and 89, the defendants and the assistant, as well as
people whose talks have been listened to, can examine the self of
transcript referred to in paragraph 3 in order to integrate the conformity of the recordings and
obtain, at their own expense, copies of the elements in that referred to.
6-The elements collected that are not transcribed in self-stay in the exclusive
availability of the judge, being destroyed with the transit on trial of the final decision,
getting all participants in the operations linked by duty of secrecy relatively
to what they have become aware of.
7-Without prejudice to the provisions of Articles 86 and 89, the defendants and the Assistant, as well as
people whose talks have been listened to, may require the judge to
order the transcription of non-transcribed elements, specifying the relevant facts
for proof that they consider omitted or de-contextualised in the self referred to in the
n. 3.
Article 190.
(...)
The provisions of Articles 187, 188 and 189 shall be correspondingly applicable to the
talks or communications conveyed by any technical means other than the
telephone, without prejudice to the own regime of obtaining electronic digital proof, well
as to the interception of communications between gifts.
Article 193.
(...)
1-(...)
2-A preventive detention can only be enforced when they are manifestly revealed
inadequate or insufficient the other coaction measures.
3-(...)
21
Article 194.
(...)
1-(...)
2 - The application referred to in the preceding paragraph shall be preceded, where possible, of
hearing of the accused and may take place in the act of the first judicial interrogation.
3-A statement of reasons for the order applying any measure of coaction, except
of the term of identity and residence, contains, under penalty of nullity:
a) a synthetic but understanding enunciation of the facts imputed to the
argued, including, if possible, time, mode and place of the same;
b) the legal qualification of the imputed facts;
c) the enunciation of the cautionary requirements and the concrete indications that they make
necessary, appropriate and proportional to the application of the coaction measure, with the
indication of the factual grounds that justify it.
4-The order referred to in paragraph 1 shall be notified to the accused and it appears the warning of the
consequences of non-compliance with the obligations imposed. In case of arrest
preventative, the dispatch is, with the consent of the accused, immediately communicated to
relative, the person of his or her trust or the defender appointed by the accused.
5-(Previous n. 4)
Article 201.
(...)
1-(...)
2-A The obligation to remain in the dwelling is cumulable with the obligation laid down in the
Article 200 (1) (d).
3 - For monitoring the performance of the obligations referred to in the preceding paragraphs
technical means of remote control may be used, in the terms provided for in the law.
Article 202.
(...)
1-If it considers manifestly inadequate or insufficient, in the case, the measures
22
referred to in the previous articles, the judge may impose on the accused the remand
when:
a) (...)
b) (...)
2-(...)
Article 204.
(...)
No coaction measure provided for in the previous chapter, apart from the one contained
in Article 196, it can be applied if in concrete if it does not check:
a) (...)
b) (...)
c) Danger, on the grounds of the nature and circumstances of the crime or of the
personality of the accused, of continuation of criminal activity or of serious
disturbance of order and public tranquility.
Article 212.
(...)
1-(...)
2-(...)
3-(...)
4 - The revocation and replacement provided for in this article takes place officiously or at
application by the Public Prosecutor's Office or the accused, and these shall, where possible,
be heard. If, however, the judge juds the defendant's motion manifestly
unfounded, condemns it to the payment of a sum between 10 UC and 50 UC.
5-If, after conviction in the first instance, it is applied or maintained the measure of
preventive detention, relaxation measures can be applied for the implementation, in the
terms set out in the law.
23
Article 213.
(Review of the assumptions of pretrial detention and the obligation to remain in the
housing)
1-During the execution of the preventive arrest or the obligation to remain in the
housing the judge proceeds officiously, every three months, to the re-examination of the
subsistence of the assumptions of that s , deciding if they are to maintain or must be
substituted or revoked.
2-In the decision referred to in the preceding paragraph, or where necessary, the judge
check the fundamentals of raising the deadlines of pretrial detention or of the obligation to
remain in the dwelling, in the terms and for the purposes of the provisions of Article 215, para. the
2, 3 and 4, and in Article 218 (3).
3-(...)
4-A In order to substantiate the decisions on the replacement, revocation or maintenance of the
pre-trial detention or the obligation to remain in the dwelling, the judge, officiously or
the application by the Public Prosecutor's Office or the accused, may request the drafting of
social or information report of the social reinsertion services, provided that the accused
conspicuous in its realization.
Article 214.
(...)
1-(...)
2 - The measures of preventive arrest and obligation to stay in housing
extinguish equally immediately when there is place condemnatory sentence, yet
that of it has been brought into appeal, if the penalty applied is not superior to imprisonment or to
obligation to remain already suffered.
3-(...)
4-(...)
24
Article 215.
(...)
1-A Pretrial detention extinguished when, from its incept, they have elapsed:
a) Four months without any charge being deducted;
b) Eight months without, by taking place the instruction, decision has been made
instructional;
c) Fourteen months without there having been conviction in the first instance;
d) Eighteen months without there has been conviction with traffic on trial.
2 - The time limits referred to in the preceding paragraph are high, respectively, for six
months, nine months, eighteen months and Two years, in cases of terrorism, criminality
violent or highly organized, or when to proceed by punishable crime with a penalty of
prison of a maximum of more than eight years, or for crime:
a) (...)
b) (...)
c) (...)
d) (...)
e) (...)
f) (...)
g) (...)
3 - The time limits referred to in paragraph 1 are high, respectively, for one year, sixteen
months, three years and four years, when the procedure is for one of the crimes referred to
in the preceding paragraph and reveal itself of exceptional complexity, due in particular to
to the number of defendants or of offending or to the highly organized character of the crime.
4-(...)
Article 221.
(...)
1-(...)
2-(...)
3-(...)
4-If the judge refuses the application for manifestly unsubstantiated, it condemns the
25
applicant for the payment of a sum between 10 UC and 50 UC.
Article 223.
(...)
1-(...)
2-(...)
3-(...)
4-(...)
5-(...)
6-If the Supreme Court of Justice adjudicates the petition of habeas corpus manifestly
unfounded, condemns the petitioner for the payment of a sum between 10 UC and 50 UC.
Article 246.
(...)
1-A denunciation may be made verbally or in writing and is not subject to
special formalities, being, in any case, signed by the whistleblower,
properly identified.
2-A verbal denunciation is reduced to written and signed also by the entity that the
receive. It is correspondingly applicable to the provisions of Article 95 (3).
3-(...)
4-(...)
Article 251.
(...)
1-In addition to the cases provided for in Articles 174, paragraph 4, and 177, paragraph 3, the organs of
criminal police may proceed, without prior authorization from the judicial authority:
a) (...)
b) (...)
2-(...)
26
Article 269.
(...)
1-During the investigation competes exclusively with the judge of instruction ordering or
authorize:
a) the actuation of expertise, pursuant to Art. 154 (1), second part;
b) The efectivation of examinations, pursuant to Art. 172 (1);
c) (Previous point (a));
d) (Previous point (b));
e) (Previous point (c));
f) (Previous point (d)).
2-(...)
Article 270.
(...)
1-(...)
2-Except for the provisions of the preceding paragraph, in addition to the acts that are of the
exclusive jurisdiction of the judge of instruction, pursuant to Articles 268 and 269, the
following acts:
a) (...)
b) Presiding to the recognition of persons under the terms of Article 147;
c) (Previous point (b));
d) (Previous point (c));
e) (Previous point (d));
f) (Previous point (e)).
3-(...)
4-(...)
Article 271.
(...)
1 - In the event of serious illness or displacement to the foreigner of a witness,
27
that predictably prevents it from being heard at trial, as well as in the cases of
victims of crimes against freedom and sexual self-determination or against protection
due to the minors, the investigating judge, the application by the Public Prosecutor's Office,
argued, of the assistant or the civil parties, may proceed to their respondent in the course of the
enquiry, in order that the testimony may, if necessary, be taken into account in the
trial.
2-In the case of prosecution for crimes against freedom and sexual self-determination or
against the protection due to minors who have for offending a minor of eighteen
years, always proceeds to the respondent of the victim in the course of the investigation, in order that the
testimony can, if necessary, be taken into account at the trial hearing,
whenever the court understands that, taking into account the particular vulnerability of the victim,
this one should not provide your statement at a hearing.
3-(Previous n. 2)
4-In cases provided for in paragraph 2, the making of statements will be carried out in
informal and reserved environment with a view to ensuring, namely, spontaneity and
the sincerity of the answers, and the minor shall be assisted in the course of the act
procedural by a social service technician or other specially crafted person
for their follow-up, previously designated for the purpose.
5-(Previous n. 3)
6-It is correspondingly applicable to the provisions of Article 352.
7-(Previous n. 4)
8-(Previous n. 5)
Article 281.
(...)
1-If the crime is punishable by imprisonment of not more than five years or with sanction
different from prison, can the Public Prosecutor's Office , officiously or the requirement of the
argued, to decide, with the concordance of the judge of instruction, by the suspension of the
process, upon the imposition of the accused of injunctions and rules of conduct, if
check the following assumptions:
a) (...);
b) (Previous point (c));
28
c) (Previous point (d)); and
d) (Previous point (e)).
2-(...)
3-(...)
4-(...)
5-(...)
6-(...)
Article 286.
(Nature, purpose and scope of instruction)
1-A The instruction has contradictory nature and aims at judicial substantiation of the decision to
deduct charge or file the enquiry in order to submit or not the cause to
trial.
2-A instruction has facultative character and cannot take place in the forms of proceedings
special.
Article 288.
(Directorate of instruction)
1-(...)
2-(...)
3-(...)
4-(...)
Article 289.
(...)
1-(...)
2-The Public Prosecutor's Office, the accused, the defender, the assistant and his / her lawyer can
attend the acts of instruction by any of them required and raise requests for
clarification or require that questions be formulated that they understand
relevant to the discovery of the truth.
29
Article 306.
(...)
1-The judge ends the instruction in the maximum time limits of forty five days, if any
accused arrested or under obligation to remain in the dwelling, or of ninety days, if
os there are not.
2-The term of forty five days referred to in the preceding paragraph shall be raised to sixty
days when the instruction has for object one of the crimes referred to in Article 215 (2).
3-(...)
Article 326.
(...)
If the lawyers or defenders, in their claims or requirements:
a) (...)
b) (...)
c) (...)
d) Fizz, or incite to which they are made, comments or explanations on
alhedic matters to the process and that in no way serve to clarify it;
are cautioned with urbanity by the president of the court; and if, after adverts,
continue, can the one remove them the word, being applicable in this case the willing
civil procedure law.
Article 349.
(Witnesses under eighteen years old)
The inquire of witnesses under eighteen years is carried out only by the
president. Finda her, the other judges, the jurors, the Public Prosecutor's Office, the defender and the
lawyers for the assistant and the civil parties may ask the president to formulate the
witness additional questions.
30
Article 352.
(...)
1-(...)
a) (...)
b) The declarant is less than eighteen years old and there are reasons to believe that his / her
hearing in the presence of the accused could harm him severely; or
c) (...)
2-(...)
Article 356.
(...)
1-Only reading is allowed in hearing of autos:
a) (...);
b) Of inquiry or of instruction that do not contain statements of the accused, of the
assistant, civil parties or witnesses , save in the cases of
recognition of persons, carried out in accordance with Article 147.
2-(...)
3-(...)
4-(...)
5-(...)
6-(...)
7-(...)
8-(...)
Article 372.
(...)
1-(...)
2-Then, the sentence is signed by all the judges and the jurors and if any of the
judges to sign won, accurately declares the motives of their vote as to the subjects
in fact and of law.
31
3-(...)
4-(...)
5-(...)
Article 375.
(...)
1-(...)
2-(...)
3-(...)
4-The court carries out the reexamination of the situation of the accused, subjecting it , whenever that
necessary, to the allowable and appropriate coating measures to the precautionary requirements that
the case requires, or maintaining, replacing or abrogating the measures to which the accused are
finds subject.
Article 381.
(...)
The simplified process applies to crimes punishable with penalty of fine or with penalty of
prison whose maximum limit is not more than five years, as well as punishable crimes
with a prison sentence whose maximum limit is more than five years, even in the event of
tender for offences, when the Public Prosecutor's Office, in the prosecution, understands that not
must be applied, in concrete, a prison sentence of more than five years, and:
a) The accused has been held in flagrante delicto, by judicial authority or
police entity; or
(b) There is simple and evident evidence that it results in evidence of having
verified the crime and of who its agent was.
Article 382.
(...)
1-(...)
2-(...)
32
3-If the Public Prosecutor's Office has reason to believe that none of the time limits for trial
in simplified process can be respected, determines the tramway in the form
common.
4-(...)
Article 384.
(...)
It is correspondingly applicable in the simplified process the provisions of Articles 280,
281. and 282.
Article 385.
(Simple and evident evidence)
1-The Public Prosecutor's Office, in the face of the news self or carried out summary inquiry, may
deduct charge sheet for trial in simplified process, if they have not elapsed
more than 120 days since the date on which the crime was committed.
2-A The prosecution of the Public Prosecutor's Office shall contain the elements referred to in the article
283, paragraph 3. The identification of the accused and the narration of the facts can be carried out, in the
either all or in part, by remission to the news auto or to the complaint.
3-If the procedure depends on particular prosecution the prosecution of the Ministry
Public takes place after deducting charge pursuant to Rule 285.
4-The defendants, in 20 days from the notification of the prosecution, presents, wanting,
contestation, accompanied by the rol of witnesses. The provisions of Article 113 shall apply,
n. 3.
5-Received the autos, the judge, by unappealed dispatch, knows of the questions to which
refers to Article 311 (1).
6-Resolved the issues alluded to in the preceding paragraph, the judge, if it does not reject the
indictment, designates day for the hearing, pursuant to the provisions of Article 312, with
precedence over judgments in common process and without prejudice to the provisions of the
article 103, paragraph 2.
33
Article 386.
(...)
1-A hearing may be postponed until 60. day after detention or until 180 th day
subsequent to the date of the practice of facts:
a) (...)
b) (...)
2-(...)
3-(...)
Article 387.
(...)
1-If the hearing does not take place in an act followed by the arrest and presentation to the
Prosecutor's Office, but the process can still maintain the simplified form:
a) (...)
b) (...)
2-(...)
3-(...)
4-If the accused does not attend, it is washed up self of news, which will be handed over to the
Public prosecutor's office and will serve as a prosecution for the crime of disobedience, which will be tried
jointly with the other crimes, if the process is to maintain the simplified form.
Article 389.
(...)
1-The judgment in simplified proceedings regulates the provisions of this Code
relative to the trial by singular court, with the modifications set out in this
article.
2-The acts and terms of the trial are reduced to the minimum indispensable to the
knowledge and good decision of the cause.
3-(Previous n. 1)
4-As soon as it commenses the hearing, the court warns, under penalty of nullity, whoever has
legitimacy to appeal the sentence that it may apply for the documentation of the acts
34
of hearing.
5-In cases referred to in Article 381 (a), the Public Prosecutor's Office may
replace the submission of the charge sheet with the reading of the news self from the authority that
have proceeded to detention.
6-(Previous n. 4)
7-(Previous n. 5)
8-(Previous n. 6)
9-(Previous n. 7)
Article 390.
(...)
Whenever you check:
a) the inadmissibility, in the case, of the simplified process; or
b) The need, for the discovery of the truth, of proof-making that does not
may predictably take place at the maximum time limits of sixty days after the
detention or 180 days after the date of the practice of the facts;
the court, by unappealed dispatch, refers the autos to the Public Prosecutor's Office for
tramway in the common form.
Article 391.
(...)
In a simplified process it is only permissible to appeal the sentence or order that puser
term the process.
Article 392.
(...)
1-In case of a crime punishable by imprisonment of not more than three years or only with
penalty of fine, the Public Prosecutor's Office, officiously or at the request of the accused,
when you understand that the case should be concretely applied feather or measure of
non-custodial security of liberty, it requires the court that the application take place in
sumarest process.
35
2-(...)
Article 407.
(...)
1-Sobem immediately the interposed resources:
a) (...)
b) (...)
c) (...)
d) (...)
e) (...)
f) (...)
g) (...)
h) (...)
i) (...)
j) (...)
l) Of decision that dismist the application for a judge's refusal.
2-(...)
3-(...)
Article 456.
(...)
If the Supreme Court of Justice denies the review sought by the assistant, by the
doomed or by any of the persons referred to in Article 450 (2), condemns the
applicant at expense and still, if it considers that the application was manifestly unfounded,
in the payment of an amount between 10 UC and 50 UC ".
Article 2.
Addition to the Code of Criminal Procedure
The following is added to the Code of Criminal Procedure a Article 19-to-be, with the following:
36
" Article 19.
(Crime of which results death)
It is competent to know of a crime that it results the death the court in whose area
the agent has acted or should have acted. "
Article 3.
Revocation of articles of the Code of Criminal Procedure
Articles 391 to 391-and of the Code of Criminal Procedure are repealed.
Article 4.
Amendments to book VIII of the Code of Criminal Procedure
The following changes are made in the apportionment of the book VIII of the Code of
Criminal Procedure:
a) Title I goes on to designate "Title I-Do simplified process",
constituted by Articles 381 to 391;
b) It is eliminated the "Title II-From the abbreviated process";
c) Title III becomes to be designated "Title II-Of the sumptiest process",
constituted by Articles 392 to 398.
Article 5.
Application in time
1- The amendments to the Code of Criminal Procedure introduced by this diploma are
applicable to the pending cases on the date of their entry into force.
2- Excepted from the provisions of the preceding paragraph Article 306 of the Code of Procedure
Penal, in the wording introduced by this diploma, which is only applicable to the
processes in which the opening of the instruction has not yet been required.
37
Article 6.
Entry into force
1 - This diploma shall come into force thirty days after its publication.
2 - Excepted from the provisions of the preceding paragraph Article 215 of the Code of Procedure
Penal, in the wording introduced by this diploma, which comes into force six months
after its publication.
Palace of S. Bento, March 7, 2007
The Deputies,
