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Partido Popular Party CDS-PP Parliamentary Group Assembly of the Republic-Palace of Saint Benedict-1249-068 Lisboa-Phone: 21 391 9233-Fax: 21 391 7456 Email: email@example.com DRAFT law No. 368/X amendments to the criminal procedure code 1 – With this draft law, the CDS-PP comes to propose a number of amendments to the criminal procedure code, in matters related to the regime of secrecy of Justice proof, coercive measures, the stage of instruction, procedural treatment of small-and mid-crime, the Statute of the victim in criminal proceedings, and to crimes against freedom and sexual self-determination and against the protection due to minors.
2-the principle of presumption of innocence of the accused until final transit of the sentence of condemnation comes enshrined in art. 32/2 of the Constitution of the Portuguese Republic, as well as in the Universal Declaration of human rights, the European Convention of human rights and in the Declaration of the rights of man and of the citizen, being certain, however, that none of these texts defines which is the content of that principle, and also being sure the concrete content of this principle and right is, after , molded-in every legal system.
Connected with the right to presumption of innocence the Constitution enshrines other: the right to all defence guarantees, which can be considered a necessary consequence of that. All rights necessary for the defense are that the law establishes expressly wants that deducted from the General principles of the system (v. g, communication to the defendant subject to coercive measures of the concrete facts that indicate the assumptions of the coercive measures).
The relationship between the presumption of innocence and freedom of expression can be of collaboration or conflict, being more often conflict. Is mister resist, however, the temptation of tier rights and in particular to sacrifice freedom of information for the benefit of the presumption of innocence. 2 the CDS-PP considers not to have committed this sin in the proposals on sub judice-whose scheme is relaxed, aiming at the reconciliation of two protected interests, the interests of the investigation and the presumption of innocence of the accused – which then if elencam: a) Modifies the paragraph 4 of article 86, highlighting that the mere knowledge of constant elements of a process , although there is no direct contact with it, it is enough to legitimize the binding to the secret;
This standard is aimed at, inter alia, journalists. In fact, a general prohibition of publication of materials subject to ongoing processes would frontally the provisions of art. 10 of the European Convention on human rights; but that does not relieve the journalists to a duty of professional rigor-not to mention the duty of care of all actors in the criminal process-which may prevent speculation likely to influence the course of Justice.
b) is added to paragraph 10 of article 86, which aims to allow for the provision of clarifications and assistants to offended on the progress of the investigation, without prejudice, of course, the preservation of the effectiveness of the latter;
(c)) regarding the procedural acts committed in crimes against freedom and sexual self-determination and against the protection due to minors, the rule is the exclusion of advertising, regardless of the age of the victims, in view of the devastating effects that advertising has an inherent capacity to cause;
d) in the event of agreement between the Prosecutor, the defendant and his assistant, dedicates the judge allow the subject proceedings have access to all the auto paragraph 2 of art. 89, without prejudice to the maintenance of the obligation to keep a secret;
e) Provides the possibility of the judge allow, at the request of the accused and after hearing the public prosecutor, during the time limit for the filing of the appeal, the procedural 3 parts query constituted grounds for the application of the coercive measure of pre-trial detention, unless considered the interests involved, consider which of your query results to the research;
f) reinforces the rule that the secret of Justice just ended with the termination of the investigation, and from that moment the procedural subjects examine the process for free outside the Secretariat, since the competent judicial authority shall authorize the trust the process.
If you chose no, here, for making the secret investigative for the most serious crimes, because gravity, for research purposes, is very relative: a crime punishable with a penalty up to 5 years in prison can be much more difficult to investigate than a crime punishable by penalty until 16 years ago, and justified the secret for that and don't have interest to this.
4-it was an enhancement of the system of proof regarding evidence for recognition and expert testimony, which ensure more effective guarantees of the accused's defence and ensure a higher breadwinner to constitutional text, in particular to paragraph 4 of art. 32 of the CRP.
5-also devote some innovations in the ways of taking of evidence, in particular, with regard to searches and wiretaps: 5.1-as regards searches, it is recalled that the constitutional law No. 1/2001, among others, amended paragraph 3 of article 34, in order to allow for the completion of house searches during the period between 21 and 7 hours When are concerned situations of flagrante delicto or upon judicial authorization in cases of particularly violent or highly organized crime, including terrorism and trafficking in people, arms and drugs. This amendment to constitutional text was the result of a constitutional revision draft standard of the CDS-PP, which managed to get the necessary consensus in the Committee on Possible Constitutional review, very under the contribution brought to the Commission by the person who acknowledged in this standard a major assist from criminal investigation and prevention. 4 implementation of this constitutional standard lacks the ordinary law, which takes effect by amending the relevant provisions of the code of criminal procedure (arts. 177 and 251);
5.2 – the subject of wiretaps has been cause of sharp stir, in more recent times, for reasons well known. Not long ago, the Minister of Justice took the initiative to invite the members of the Commission for Constitutional Affairs, rights, liberties and guarantees for a visit to the judicial police, having been found "in locu" how the capture and recording of telephone conversations.
All felt the need to make an assessment about the rules related to the wiretaps contained in the current criminal procedural law, mindful of the strict constitutional parameters in presence-fashioned, therefore, the provisions of paragraph 8 of article 32 and paragraphs 1 and 4 of article 34 of the basic law. In this context, we propose the following solutions: a) dedicates expressly, a new paragraph 2 of article 187 §, a delimitation of the normative universe of persons or telephone connections which may be the target of wiretaps;
b) Assigns to the criminal section of the Supreme Court of justice the power to order or authorize the interception, recording or registration of conversations or communications made by the President of the Republic, the President of the Assembly of the Republic or the Prime Minister;
c) Assigns to the criminal sections of the relations the competence to order or authorize the interception, recording or registration of conversations or communications conducted by holders of organs of sovereignty;
d) for the purpose of strengthening the control of the judge in relation to the elements collected by authorized or ordered operations established in paragraph 1 of article 188, which intercept self and recording, the recorded tapes and any similar items 5 will be brought to the attention of the judge who has ordered or authorized within five days;
and) shall be (new paragraph 3 of article 187 §) a maximum period of duration of your wires (three months) eventually renewable for identical periods, under the conditions there laid down;
f) are added to the catalogue of crimes referred to in paragraph 1 of article 187 §, by introducing two new subparagraphs (a), crimes against freedom and sexual self-determination and against the protection due to minors, thus allowing the interception and recording of conversations or telephone calls regardless of the abstract frame concerned criminal types.
g) as important as the measures referred to in point (d)), is the measure by which the judge decides for the destruction of what understanding does not justify keeping. Change the rule in the current paragraph 3 of article 188 of the code, according to which the judge orders the destruction of the collected elements considered irrelevant to the evidence, this without prejudice to provide for the possibility of the defendant and the wizard, as well as the people whose conversations have been listened to, apply to the judge-which are entrusted exclusively the elements collected-to order a transcript of elements not previously transcribed with a view to completing or contextualizarem the instrutório constant from the record;
h) adapts the standard in article 180 of the future adoption of the system of obtaining digital electronic evidence, leaving unclear the nature of general rule of article 180 of the code of criminal procedure in view of the special rules that will govern that matter, facilitating in this way a correct interpretation and coordination of various parts of the system.
6-with regard to measures of constraint, the desideratum pursued consists of the deepening of the guarantees of the accused, in the framework of a complex legislative consideration that safeguards the essential balance to be established between the various interests constitutionally protected in confrontation. 6 statistical indicators point in that direction, the cast of coercive measures provided for in the code of criminal procedure, the most used are the term of identity and residence (the least burdensome that cast) and, soon after, pre-trial detention (the most burdensome of all), also an under-utilisation of other coercive measures 5. With this amendment, the aim is to give a signal of the strengthening of the use of coercive measures of intermediate severity. In these terms: a) introduces the obligation of the defendant at the time of application (paragraph 2 of article 194) and review (paragraph 4 of article 212.º) coercive measures, mandating that only ceases in the case of impossibility;
b) within the framework of the joint of the regime of secrecy of Justice with the obligation to state reasons in the order of application of coercive measures in the course of the investigation, introduce changes towards greater requirement of the duty to state reasons of pre-trial detention, by highlighting a special duty of specification of the grounds of decision, in order to allow a proper monitoring of the well founded the order that enforces and Consequently, a better exercise of the right of defence, without jeopardizing the essential interests of research;
c) according to the new wording of point (c)) of article 204, the danger of "disturbing the public order and tranquility" as grounds for the application of coercive measures passes to assume a residual nature, and that disturbance present especially serious;
d) with regard to pre-trial detention in particular, comply to legislator surround all necessary and reasonable precautions to apply a measure that focuses on presumed innocent citizens and that is of extreme gravity;
and) in the same way, it is possible to proceed to the re-evaluation of the periods of maximum pre-trial detention provided for in article 215 of the code, taking due account of the subject line of the periods of maximum duration of the various stages of the Portuguese criminal procedure. Therefore, and given that this legislative measure must be configured and sustained a 7 integrated analysis of the structure of our criminal process moves forward in a cautious, reducing the time-limits laid down in about today 1/4, except with regard to the time limits set out in paragraph 3 of article 215 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 exceptional complexity, prudence advises to keep intact the time limits presently established in law;
f) the addition of a paragraph 5 to article 212.º and the amendment to paragraph 4 of article 375.º are intended to correct a distortion in the practical application of the rule that in the case of enforceable judgment, coercive measures only if quenching with your traffic. It follows that, when the defendant subject to pre-trial detention is ordered to prison sentence exceeding that suffered and appeal, continue to be performed that measure of coercion may be applied not the institutes provided for by law for the condemned.
g) discipline to stay in housing is reviewed with two objectives in mind: first, equating the your system at the remand, determining the unofficial review, every three months, the livelihood of its assumptions (article 213) and by a particular cause of extinction (paragraph 2 of article 214); Secondly, allowing your overlapping with the obligation not to contact certain persons or not attend certain places or certain means.
7-concerning the statement, wanted to strengthen their phase characteristics dominated by principles of promptness, contradiction and equality of arms. So: a) the Prosecutor, the accused, the Defender, the wizard and your lawyer are able to watch acts of instruction per any of them required and fully exercise the adversarial, leading to requests for clarification and requiring the completion of instances witnesses and reporting (paragraph 2 of article 289);
b) the reduction of their periods of maximum duration laid down in article 306, in about a .25, with the exception of the time limits relating to investigations for crimes of exceptional complexity (paragraph 3 of art. 215). 8 8-in order to encourage resolutely a greater application of the mechanisms laid down in the code for the treatment of small and medium-sized crime procedural, changes the course of the provisional suspension of the process and the process accelerated, in line with the recommendations made in the report of the Commission to study and Debate the reform of the prison system.
Concerning the provisional suspension of the process, eliminates the requirement of absence of criminal record of the accused, allow to be the accused himself to apply for the suspension of the process (currently, the suspension decision is the responsibility of the public prosecutor's Office, subject to the agreement of the judge of criminal instruction) and extends the application of this Institute also accelerated process.
With regard to the contents and process the process short, merge these two procedural forms in a single, designated "simplified procedure", which will, nevertheless, a broader scope than those. As a result, according to a principle of speed to be print to the implementation of criminal justice, that the hearing should be held, at the limit, within 180 days after the date of circulation of the facts and that these judgments must be marked with priority over the other. This without prejudice to compliance with the time limits applicable to cases of flagrante delicto, as the standard set out in new subparagraph c) of paragraph 2 of article 103, pursuant to which the respective procedural acts have 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 defended the necessity of effective to combat paedophilia, prostitution and child pornography, crimes, for your particularly violent nature and nowadays with a practice linked to powerful networks that kidnap, torture and exploit minors generate social sensitivity a founded concern or even dismay. In this sense, considering the enormous social results from practical worthlessness of these crimes, it makes sense that the realization of Justice is done with particular speed. This speed is the best response to the legitimate concerns of all those who, like us, understand that there can be no time to waste when it comes to crimes of this nature. The amendment focuses, 9 so, not only in this need for urgency, as the recognition that in the realization of justice there is a need, obvious, to give priority to what we consider really important. In the case of proceedings relating to crimes against freedom and sexual self-determination.
In addition to innovations in this area already mentioned focusing, also refer to the Appendix (271º) of standards relating to claims for future memory, to predict that at the victim's inquiry, in the course of the investigation, in crimes against freedom and sexual self-determination and against the protection due to minors.
10-still Adopt transitional provisions for the application of article 306 and the entry into force of article 215 of the code of criminal procedure as introduced by this law.
Thus, the undersigned Members have the following draft law: article 1 amendments to the code of criminal procedure articles 11, 12, 38, 45, 61, 86, 87, 88, 89, 94, 103, 104, 110, 131, 147, 154, 159, 160-172, 177, 187 §,, 180, 193, 188, 194, 201, 202, 204, 212.º, 213, 214, 215, 221, 223, 246.º, 251, 269, 270.º, 271.º , 281, 286.º, 288, 289, 306, 326, 352, 356.º, 349.º, 372.º, 375.º, 381.º, 382.º, 384.º, 385.º, 386.º, 387.º, 389.º, 390.º, 391.º, 392.º, 407 and 456.º of the code of criminal procedure, approved by Decree-Law No. 78/87, of 17 February and amended by decree-laws Nos 387/87 and, of 29 December, and 212/89, of 30 June, by law No. 57/91 , 13 August, by Decree-Law No. 423/91, of the 30 October, 343/93, of October 1, and 317/95 of 28 November, by paragraphs 59/98, of 25 August, 3/99, of 13 January, and 7/2000, of 27 May, by Decree-Law No. 320-C/2000, of 15 December, by paragraphs 30-E/2000 , of 20 December, and 52/2003, of 22 August, and by Decree-Law No. 324/2003, of December 27, are replaced by the following: "Article 10 11 (...)
1-(...) 2-(.) 3-it shall be the responsibility of the criminal section of the Supreme Court of Justice in criminal matters: a) (...) b) (...) c) (...) d) (...) and) (...) f) (...) g) (...) h) order or authorize the interception, recording or registration of conversations or communications, in accordance with article 187 § 180 and, when made by the President of the Republic, the President of the Assembly of the Republic or the Prime Minister; I) (Former subparagraph (h))) 4-(...)
Article 12 (...)
1-(...) 2 – it is for the criminal sections of the relationships, in criminal matters: a) (...) b) (...) c) order or authorize the interception, recording or registration of conversations or communications, in accordance with article 187 § 180 and, when carried out by holders of sovereign organs, except those referred to in point (a)) of paragraph 2 and in article 11; d) (Former subparagraph (c))) and (previous) (d))) 11 f) (previous article)) g) (Former subparagraph (f))) h) (Former subparagraph (g))) i) (Former subparagraph (h))) 3-(...)
Article 38 (...)
1-(...) 2-(.) 3-(...) 4-(...) 5 – If the request of the defendant, or of civil parties Wizard is considered manifestly unfounded, the applicant is sentenced to payment of a sum between 50 10 UC and UC.
Article 45 (...)
1-refusal must be requested and the excuse must be requested, to them joining the evidence, before: a) (...) b) (...) 2 – delivery of application for refusal has the effect of suspending the process, without prejudice to be carried out, by the judge in question, if such is indispensable, urgent procedural acts. 3 – (Former paragraph 2) 4 – (Former paragraph 3) 5 – the Court has a period of 30 days after delivery of the request for refusal or request for excuse, to decide on them, taking into account, in case it is required to refuse, the response of the judge in question and the diligence of proof. 12 6 – If the Court refuse the request of the defendant, the wizard or the civil parties for manifestly unfounded, condemns the applicant a sum between 50 10 UC and UC.
Article 61 (...)
1-the defendant enjoys, in particular, at any stage of the process and saved the exceptions to the law, the rights to:) (...) b) (...) c) Be informed of the facts imputed to him before, during the investigation, a statement before any entity; d) (Former subparagraph (c))) and (previous) (d))) f) (previous article)) g) (Former subparagraph (f))) h) (Former subparagraph (g))) i) (Former subparagraph (h))) 2-private communication referred to in subparagraph (f)) of the previous paragraph occurs in sight when so required for security reasons, but in terms of not being heard by the surveillance officer. 3 – (...)
Article 86 (...)
1 – the criminal procedure is, on pain of nullity, public, from the decision to investigate or, if the statement has no place, the moment that can no longer be required. The process is public after the deadline for the receipt of the request for opening of the instruction, if the statement is required only by the defendant and this, in the application, does not state that opposes advertising. 2 – (...) 13 3 – (...) 4 – the secret of Justice binds all participants of procedure, as well as people who, by any title, have taken contact with the process or knowledge of the elements he owned, and implies the prohibition of: a) (...) b) (...) 5 – (...) – 6 (...) 7 – (...) 8 – (...) 9 – (...) 10 – the secret of Justice is without prejudice to the provision of clarification still assistants and offended on the progress of the investigations.
Article 87 (...)
1-(...) 2-(...) 3 – in the case of proceedings for crimes against freedom and sexual self-determination or against the protection due to minors, the procedural documents in rule excluding advertising. 4 – (...) 5 – (...) 6 – (...)
Article 88 (...)
1-(...) 2-(...)) (...) b) (...) 14 c) the publication by any means, of the identity of victims of crimes against 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 honour or against the reservation, before the hearing, or even after, if the victim is a minor. 3 – (...)
Article 89 (...)
1-(...) 2-If, however, the Public Ministry there is also deducted charge or delivered the dispatch survey, the defendant, the wizard, if the criminal proceedings does not depend on particular accusation, and civil parties may only have access to auto on the part concerning the statements made and the requests and memorials submitted by them, as well as the diligence of the proof they could watch or incidental issues in occurring without prejudice to paragraphs 3 and 4 of this article, in article 86, paragraph 5 and article 194, paragraph 3. To this end, the parties referred to are self registry for photocopy paper, for a period of three days, without prejudice to the progress of the process. The duty of secrecy of Justice persists for all. 3 – may, however, the judge, in agreement with the public prosecutor, the accused and the wizard, allow the persons mentioned in paragraph 1 have access to all the auto. The duty of secrecy of Justice persists for all.
4-the judge, at the request of the defendant, and heard the Prosecutor, allows your Defender, during the time limit for the filing of the appeal, the consultation of legal documents that constituted grounds for the application of the coercive measure of pre-trial detention, unless considered the interests involved, consider which of your query results prejudice to the investigation.
5-If the Public Ministry there is less charge or delivered the dispatch survey, the persons mentioned in paragraph 1 have the right to examine the process for free outside the Secretariat, provided that the request to the competent judicial authority and this, fixing the time limit for such, authorize the procedure.
15 6-(Former paragraph 4).
Article 94 (...)
1-(...) 2 – For the practice of acts referred to in paragraph 1, shall preferably be used typewriters or word processors, in which case make sure, before the signing, that the document has been fully reviewed and identifies the entity that has produced. 3 – (...) 4 – (...) 5 – (...) 6 – (...)
Article 103 (...)
1-(...) 2 – exceptions to the provisions of the preceding paragraph: a) (...) b) (...) c) procedural steps relating to the procedures referred to in subparagraph (a)) of article 381.º; d) procedural steps relating to crimes against freedom and sexual self-determination or against the protection due to minors; e) (previous subparagraph (c))) 3-(...)
Article 104 (...)
1-(...) 16 2-Run holiday deadlines relating to processes in which should practice the acts referred to in (a)) d) of paragraph 2 of the preceding article.
Article 110 (...)
If the request for accelerated procedure of the defendant, the wizard or the civil parties is judged manifestly unfounded, the Court or the examining magistrate in the case of paragraph 2, point (a)) of article 108, condemns the payment of a sum peticionante between UC and UC 50 10.
Article 131 (...)
1-(...) 2-(...) 3 – in the case of a minor's testimony in crimes against freedom and sexual self-determination or against the protection due to minors, may take place expertise on personality. 4 – (…)
Article 147 (...)
1-(...) 2-(.) 3-(...) 4 – recognition is chaired by the competent judicial authority, being the person to recognize compulsorily assisted by Defender. 5 – (Former paragraph 4) 17 Article 154 (...)
1 – the expertise is ordered, ex officio or at the request by order of the judicial authority, unless it is the subject person and this does not provide your consent, in which case it is sorted by order of the judge. 2-the order referred to in the preceding paragraph contains the names of the experts and the summary statement of subject expertise, as well as, preceding the expert hearing, if possible, an indication of the day, time and place of efectivará. 3 – (Former paragraph 2) 4 – (Former paragraph 3) item 159 (...)
1-forensic expertise is granted to the delegations and the medico-legal offices of the National Institute of Legal Medicine or, where this is not possible, the doctors contracted by the same Institute for expert functions in the counties. 2-The medico-legal expertise referred to in the preceding paragraph on the need for specialist medical training in other areas and which cannot be carried out in the delegations and medico-legal offices of the National Institute of forensic medicine are carried out by the same Institute in health service, preferably integrated into the national health service. 3-the preceding paragraphs is correspondingly applicable to expertise on psychiatric issues, in which specialists also may participate in psychology and Criminology. 4 – (Former paragraph 3) Article 188-the (...)
1 – The skills referred to in articles 152 and 160 can be performed by entities 18 third that for so long have been contracted by people who had to perform, since those don't have any interest in the issue or connection with the wizard or with the accused. 2 – (...)
Article 172 (...)
1-If someone want to avoid or prevent any examination due or provide something that should be examined, can be compelled by judge's decision. 2 – (...)
Article 177 (...)
1 — (...) 2 — can be carried out house searches between the 21 and the 7 hours, without consent of the targeted, and observed the requirements of the preceding paragraph, in the case of particularly violent or highly organized crime, including terrorism and trafficking in people, arms and drugs. 3 — can the criminal police bodies carry out house searches without prior authorisation of the judicial authority, the period schedule in the preceding paragraph, at the time of detention in flagrante by the corresponding prison sentence. Is correspondingly applicable article 174, paragraph 5. 4 — (now paragraph 2) 5 — (now paragraph 3) 6 — (now no. 4).
Article 187 § (...)
1 – the interception and recording of conversations or telephone communications can only be issued or authorized by order of the judge, as the crimes: 19 a) (...) b) against freedom and sexual self-determination; c) Against the protection due to minors; d) (Former subparagraph (b))) and (previous) (c))) f) (Former subparagraph (d))) g) of injury, threat, coercion, of private life and wanton disruption of peace and quiet, when committed by telephone, if there is reason to believe that the investigation will prove to be of great interest for the discovery of truth or evidence. 2-the interception and recording of conversations or telephone communications can only be ordered or authorized in respect of suspects or persons in respect of whom it is possible to admit, based on certain facts, which receive or transmit communications from the suspects or they intended, or that the suspects using their phones. 3-the order that orders or authorizes the interception and recording of conversations or telephone calls is well-founded and fixes the maximum term of your duration, for a period not exceeding three months, renewable for periods as long as you keep the respective conditions for admissibility. 4 – (Former paragraph 2) 5 – (Former paragraph 3) Article 188 (...)
1-intercepting and recording referred to in the previous article is drawn up, which, along with the tapes or similar items, is within five days brought to the attention of Prosecutors who have promoted the operations and the judge who has ordered or authorized, with an indication of the passages of the recordings or similar items considered relevant for the proof. 2-(.) 3-If the judge, after hearing the public prosecutor, consider the elements collected, or some of them, relevant to the evidence, orders the transcription in your auto-join 20 process. 4 – (...) 5-Without prejudice to the provisions of articles 86 and 89, the defendant and his assistant, as well as the people whose conversations have been listened to, can examine the transcript referred to in paragraph 3 to monitor the conformity of tapes and obtain, your costs, copies of the elements that referred to. 6-The collected elements that are not transcribed in self are in the exclusive availability of the judge, being destroyed with the traffic in the final decision, getting all the participants in the operations connected with duty of secrecy with respect to what have become aware. 7 – Without prejudice to the provisions of articles 86 and 89, the defendant and his assistant, as well as the people whose conversations have been heard, may require the judge to order the transcription of non-transcribed by specifying the facts relevant to the proof that they omitted or uncommitted in auto referred to in paragraph 3.
Article 180 (...)
Articles 188 and 189-187 §, is correspondingly apply to conversations or communications transmitted by any technical means other than telephone, without prejudice to the arrangements for obtaining digital evidence itself, as well as the interception of communications between present.
Article 193 (...)
1-(...) 2-pre-trial detention can only be applied when are clearly inadequate or insufficient other measures of coercion. 3 – (...)
21 Article 194 (...)
1-(...) 2-the application referred to in the preceding paragraph is preceded, whenever possible, hearing of the accused and may take place in the Act of the first judicial interrogation. 3-the rationale for the order to apply any coercive measure, except for the term of identity and residence, contains, under penalty of nullity: a) a synthetic enunciation, but understanding, of the facts imputed to the accused, including, if possible, the time, place and mode of the same; (b) the legal classification of the facts) allocated; c) enunciation of the precautionary requirements and concrete evidence make it necessary, appropriate and proportionate application of the measure of coercion, with an indication of the fact that reasons therefor. 4 – the order referred to in paragraph 1 shall be notified to the accused and it appears in the warning of the consequences of non-compliance with the obligations imposed. In the case of pre-trial detention, the order is, with the consent of the accused, immediately communicated to a relative, the person of your trust or the Defender appointed by the defendant. 5 – (Former paragraph 4) Article 201 (...)
1-(...) 2 – the obligation to remain in housing may be added to the obligation imposed in article 1 200th, paragraph (d)). 3 – For supervision of compliance with the obligations referred to in the preceding paragraphs can be used technical means of remote control, pursuant to the law.
Article 202 (...)
1 – consider manifestly inadequate or insufficient, in this case, the 22 measures referred to in the preceding articles, the Court may require the defendant to pre-trial detention when: a) (...) b) (...) 2-(...)
Article 204 (...)
Any measure of coercion referred to in the previous chapter, except that contains in article 196.º, may be applied in concrete if not check out:) (...) b) (...) c) Danger, due to the nature and circumstances of the crime or the personality of the accused, of continued criminal activity or serious disturbance of public order and tranquillity.
Article 212.º (...)
1-(...) 2-(.) 3-(...) 4 – revocation and substitution provided for in this article take place ex officio or at the request of the Prosecutor or the accused, which, whenever possible, be heard. If, however, the judge dismiss the claim of the defendant manifestly unfounded, sentences to the payment of a sum between 50 10 UC and UC. 5-If after conviction in first instance, is applied or maintained the measure of pre-trial detention, easing measures may be applied from your implementation, pursuant to the law.
23 Article 213 (Review of the assumptions of pre-trial detention and the obligation to stay in housing) 1-during execution of pre-trial detention or the obligation to stay in housing the judge shall ex officio every three months, the subsistence of those assumptions review, deciding if they are to keep or must be replaced or repealed. 2 – in the decision referred to in the preceding paragraph, or where necessary, the judge verifies the fundamentals of lifting time limits of pre-trial detention or the obligation to stay in housing, under the terms and for the purposes of article 215, paragraphs 2, 3 and 4, and article 218, paragraph 3. 3 – (...) 4 – in order to substantiate the decisions about the replacement, revocation or maintenance of pre-trial detention or the obligation to stay in housing, the judge, ex officio or at the request of the Prosecutor or the accused may request the reporting information or social reintegration services, since the defendant consents on your accomplishment.
Article 214 (...)
1-(...) 2-the measures of preventive detention and the obligation of residence in housing also immediately cease to exist when you have place enforceable judgment, even if her appeal was, if the penalty is not higher than the jail or the obligation to stay ever suffered.
3 – (...) 4 – (...)
24 Article 215 (...)
1-pre-trial detention expires when, from your home, have elapsed: the) Four months without charge has been deducted; b) Eight months without having place the statement, has been rendered decision rules; c) Fourteen months without conviction at first instance; d) Eighteen months without conviction with traffic. 2-the periods referred to in the preceding paragraph are high, respectively, for six months, nine months, eighteen months and two years, in cases of terrorism, violent or highly organized crime, or when for crimes punishable by a maximum term of imprisonment exceeding eight years, or for crimes: a) (...) b) (...) c) (...) d) (...) and) (...) f) (...) g) (...) 3-the periods referred to in paragraph 1 are high , respectively, for a year, 16 months, three years and four years, when the procedure is for one of the crimes referred to in the preceding paragraph and to be of exceptional complexity, due, in particular, the number of defendants or offended or the highly organized nature of the crime. 4 – (...)
Article 221 (...)
1-(...) 2-(.) 3-4 (...)-If the judge refuses the application for manifestly unfounded, condemns the 25 applicant to the payment of a sum between 50 10 UC and UC.
Article 223 (...)
1-(...) 2-(.) 3-(...) 4-(...) 5-(...) 6-If the Supreme Court deems the petition of habeas corpus to be manifestly unfounded, condemns the peticionante to payment of a sum between 50 10 UC and UC.
Article 246.º (...)
1 – the complaint may be made verbally or in writing and is not subject to special formalities, being, in any case, signed by the complainant, properly identified. 2 – the verbal complaint is reduced to writing and signed by the entity that also. Is correspondingly applicable the provisions of article 95, paragraph 3. 3 – (…) 4 – (…)
Article 251 (...)
1-in addition to the cases provided for in article 174, paragraph 4, and 177, paragraph 3, the criminal police bodies can carry out without prior authorisation of the judicial authority: a) (...) b) (...) — 2 (...)
26 article 269 (...)
1-During the investigation competes exclusively to investigating magistrate order or authorize: a) the gross weight of expertise under article 154, paragraph 1, second part; b) the gross weight of examinations, pursuant to article 172, paragraph 1; c) (Former subparagraph (a))); d) (Former subparagraph (b))); e) (previous subparagraph (c))); f) (Former subparagraph (d))). 2 – (...)
Article 270.º (...)
1-(...) 2 – exceptions to the provisions of the preceding paragraph, in addition to the acts that are the exclusive competence of the examining magistrate, in accordance with articles 268 and 269, the following acts: a) (...) b) preside over the recognition of people, in accordance with article 147; c) (Former subparagraph (b))); d) (Former subparagraph (c))); e) (previous) (d)); f) (Former subparagraph (e))). 3 – (...) 4 – (...)
Article 271.º (...)
1 – in case of serious illness or travel abroad of a witness, 27 that predictably stop to be heard in trial, as well as in the cases of victims of crimes against freedom and sexual self-determination or against the protection due to minors, the examining magistrate, at the request of the Prosecutor, the accused, or the civilian parts Wizard You can proceed to your inquiry during the investigation, in order that the statement can, if necessary, be taken into account at trial. 2-in the case of proceedings for crimes against freedom and sexual self-determination or against the protection due to children who have offended a lower than eighteen years, always on the inquiry of the victim during the investigation, in order that the statement can, if necessary, be taken into account in the audience of trial, where the Court is satisfied that taking into account the special vulnerability of the victim, this should not provide the evidence in your audience. 3 – (Former paragraph 2) 4-in the cases provided for in paragraph 2, the taking of statements will be held in informal and reserved environment, with a view to ensuring, in particular, the spontaneity and sincerity of the answers, and the less be assisted during the course of the procedural act by a social service technician or other person specially enabled for your follow-up, previously designated for this purpose. 5 – (Former paragraph 3) 6 – is correspondingly applicable article 352. 7 – (Former paragraph 4) 8 – (Former paragraph 5) Article 281 (...)
1-if the crime is punishable with imprisonment not exceeding five years or with different penalty of prison, can the Prosecutor ex officio or at the request of the defendant, to decide, with the agreement of the examining magistrate, by the suspension of the process, by the defendant of enforcement injunctions and rules of conduct, if the following assumptions: a) (...); b) (Former subparagraph (c))); 28 c) (Former subparagraph (d))); and (d)) (previous article)). 2 – (...) 3 – (...) 4 – (...) 5 – (...) 6 – (...)
Article 286.º (nature, purpose and scope of instruction) 1-instruction has contradictory nature and aims to prove the decision to deduct legal prosecution or filing the inquiry in order to submit or not to question the trial. 2-the statement is optional and cannot take place in the forms of special process.
Article 288 (Directorate of education) 1-(...) 2-(.) 3-(...) 4-(...)
Article 289 (...)
1-(...) 2-the public prosecutor, the accused, the Defender, the wizard and your lawyer can watch the instruction acts by any of them required and give rise to requests for clarification, or require that they be formulated the question relevant to the discovery of truth. 29 Article 306 (...)
1-the judge terminates the statement within 45 days maximum, if any defendants arrested or under obligation to stay in housing, or 90 days, if there is. 2-the deadline of 45 days referred to in the preceding paragraph is high for 60 days when the statement is subject to one of the crimes referred to in article 215, paragraph 2. 3 – (...)
Article 326 (...)
If the lawyers or defenders, in their claims or requirements: a) (...) b) (...) c) (...) d) Do, or encouraging that they are made, comments or explanations about matters unrelated to the process and that in no way serve to clarify it; are warned with urbanity by the President of the Court; and if, after warning, continue, could that remove the word, being applicable in this case the provisions of the law of civil procedure.
Article 349.º (Witnesses under the age of 18 years)
Cross-examination of witnesses under the age of eighteen years is carried out only by the President. After her, the other judges, the judges, the Prosecutor, the defender and Assistant lawyers and civil parties may request the President to formulate additional questions to the witness.
30 Article 352 (...)
1 – (...)) (...) b) the declarant is less than eighteen years old and there is reason to believe that your hearing in the presence of the accused could hurt him badly; or c) (...) 2-(...)
Article 356.º (...)
1-only the reading audience of autos:) (...); b) Of inquiry or of instruction that do not contain statements of the accused, the wizard, the civil parties or witnesses, except in cases of recognition of persons, pursuant to rule 147. 2 – (...) 3 – (...) 4 – (...) 5 – (...) 6 – (...) 7 – (...) 8 – (...)
Article 372.º (...)
1-(...) 2-then the sentence is signed by all the judges and jurors and if some of the judges signing won, accurately statement declares your vote as to the matters of fact and law. 31 3 – (...) 4 – (...) 5 – (...)
Article 375.º (...)
1-(...) 2-(.) 3-4 (...)-the Court shall review the situation of the accused, subject, where necessary, coercive measures admissible and suitable precautionary requirements that require, or by replacing or revoking the measures to which the accused is subject.
Article 381.º (...)
The simplified procedure applies to crimes punishable by a fine or prison sentence whose upper limit is not more than five years, as well as to crimes punishable by prison sentence whose upper limit exceeds five years, even in the case of offences when the Prosecutor in the indictment, understand that should not be applied in particular, prison sentence exceeding five years, and:) the accused has been arrested in flagrante delicto, for judicial authority or police authority; or (b)) there are simple and evident proof of that result indications if you have checked the crime and who was your agent.
Article 382.º (...)
1-(...) 2-(...) 32 3 – If the Prosecutor has reason to believe that none of the deadlines for trial in simplified procedure may be respected, determines the processing under the common form. 4 – (…)
Article 384.º (...)
Is correspondingly applicable in the simplified procedure pursuant to articles 280, 281 and 282.
Article 385.º (simple and evident Evidence) 1-prosecutors, facing the auto news or conducted investigation summary, can deduct charges for prosecution in simplified proceedings, if not more than 120 days have elapsed since the date on which the crime was committed. 2-the prosecution of the prosecution service must contain the elements referred to in article 283.º, paragraph 3. The identification of the accused and the narration of the facts can be carried out, in whole or in part, by reference to the news or to the complaint. 3 – If the procedure depend on the private prosecutor Prosecutor's accusation takes place after deducted charges pursuant to article 285 4-the defendant, in 20 days from the date of notification of the indictment, presents, wanting, contestation, accompanied by the witness list. Shall apply the provisions of article 113, paragraph 3. 5 – Received the record, the judge, is not actionable by order, know of the issues referred to in paragraph 1 of article 311. 6-Resolved the issues mentioned in the preceding paragraph, the judge, if not to reject the prosecution, means day for the hearing, in accordance with article 312, with precedence over the trials in common process and without prejudice to article 103, paragraph 2.
33 Article 386.º (...)
1 – the hearing may be postponed until the 60th day after the detention or up to 180 days after the date of circulation of the facts: a) (...) b) (...) 2-(.) 3-(...)
Article 387.º (...) 1 – if the audience has no place in action followed the arrest and presentation to the public prosecutor, but the process can keep even the simplified form: a) (...) b) (...) 2-(.) 3-4 (...)-If the defendant fails to appear, is drawn up auto news, which will be handed over to Prosecutors and will serve as a prosecution for the crime of disobedience, that will be tried together with the other crimes If the process remains the simplified form.
Article 389.º (...)
1 – the judgment in simplified procedure shall be governed by the provisions of this code relating to trial by court, with the modifications set out in this article. 2-acts and terms of trial are kept to the minimum indispensable knowledge and good decision. 3 – (previous No. 1) 4 – as soon as you start hearing, the Court warns, under penalty of nullity, who have legitimacy for a reversal that may require documentation of acts 34. 5-in the cases referred to in point (a)) of article 381.º, the public prosecutor can replace the prosecution's presentation by reading the auto news of the authority that has granted the arrest. 6 – (Former paragraph 4) 7 – (Former paragraph 5) 8 – (Former paragraph 6) 9 – (Former paragraph 7) Article 390.º (...)
Where it is established: a) inadmissible, in the case of the simplified procedure; or (b)) the need, for the discovery of truth, Stagecoach evidence cannot predictably take place in maximum 60 days deadlines after the arrest or 180 days after the date of circulation of the facts; the Court, by order is not actionable, it refers the case back to the Prosecutor for proceedings under the common form.
Article 391.º (...) In simplified proceedings shall be admissible only appeal the sentence or order that terminates the process.
Article 392.º (...)
1-in the case of a crime punishable with imprisonment not exceeding three years or with fine penalty only, the Prosecutor, ex officio or at the request of the defendant, once you understand that the case must be concretely applied penalty or security measure not custodial, requires the Court to the application takes place in the process accelerated. 35 2-(...)
Article 407 (...)
1-Rise immediately appeal lodged:) (...) b) (...) c) (...) d) (...) and) (...) f) (...) g) (...) h) (...) i) (...) j) (...) l) decision which refused the application for recusal of judge. 2 – (...) 3 – (...)
Article 456.º (...)
If the Supreme Court deny the review requested by the wizard, by convicted or by any of the persons referred to in article 450.º, paragraph 2, condemns the applicant in expense and, if satisfied that the request was manifestly unfounded, on payment of an amount between 10 and 50 UC UC ".
Article 2 Amendment to the code of criminal procedure is added to the code of criminal procedure an article 19A, as follows: 36 "Article 19A (Crime resulting in death) shall have jurisdiction of a crime resulting in death the Court in whose area the agent has acted or should have acted."
Article 3 Repeal of articles of the code of criminal procedure are hereby repealed articles 391.º-the 391.º-and the code of criminal procedure.
Article 4 amendments to Book VIII of the code of criminal procedure are introduced the following changes in the distribution of Book VIII of the code of criminal procedure: a) title I is again renamed to "Title I – The simplified process", being constituted by articles 381.º to 391.º; b) is removed the "Title II – abbreviated process"; c) title III shall designate "Title II – accelerated process", being constituted by articles 398 to 392.º.
Article 5 Application in time 1-changes to the code of criminal procedure introduced by this law are applicable to cases pending on the date of your entry into force. 2-the exception to the provisions of the preceding paragraph the article 306 of the code of criminal procedure as introduced by this law, which only applies to proceedings in which has not yet been applied for the opening of the statement.
37 article 6 entry into force 1-the present law shall enter into force thirty days after your publication. 2-the exception to the provisions of the preceding paragraph the article 215 of the code of criminal procedure as introduced by this law, which shall enter into force six months after your publication.
Palácio de s. Bento, March 7 2007 Members,
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