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First Amendment To Law No. 93/99, Of 14 July, Which Regulates The Implementation Of Measures For The Protection Of Witnesses In Criminal Proceedings

Original Language Title: Primeira alteração à Lei n.º 93/99, de 14 de Julho, que regula a aplicação de medidas para protecção de testemunhas em processo penal

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PROPOSED LAW NO. 179 /X

Exhibition of Motives

Law No. 93/99 of July 14, introduced and systematized a set of measures for

protection of witnesses in criminal proceedings and was regulated by the Decree-Law

n. 190/2003, of August 22. Through such diplomas, the legal planning

portuguese matched the need, recognized in diverse instruments

international, morally in Recommendation No. R (97) 13 of the Council of Europe, of

strengthen the rights of witnesses by understanding themselves as such a set of subjects

broader than that arising from the Code of Criminal Procedure.

The experience accumulated in the term of the said diplomas confirmed to

usefulness and need for such tools, in particular in combating crime

organized, but also the persistence of aspects in which it is justified to go further,

with a view to potentiating the collection of essential personal proof for the discovery of the truth,

in conditions of freedom and exemption, guaranteeing at the same time the rights of defence.

From this perspective, and on the basis of the work experience developed by the Commission

of Special Security Programs (CPES), a few points have been identified

strangulation and others in which the targeted purposes point out the need for

complement the measures already provided for with new measures.

In the field of punctual security measures stipulated in Article 20 of the Law

n ° 93/99 of July 14, it matters to contemplate situations in which the danger may be

appreciably reduced with the change of the usual place of residence, predicting still

greater intervention by the police corporation responsible for the suitability of

other measures, as it is found in a privileged position for the purpose. It's still

indicate the consequences for the beneficiary when they do not observe the rules of

behavior pertinent to the reduction of danger.

Pursuant to Article 21 of the Law No. 93/99 of July 14, the granting of a program

security special the witness in criminal proceedings, to his / her spouse, ascenders,

descendants, siblings and other people who are close to you demands, as assumptions

cumulative, that the deposition or statements refer to the crime inscribed in the catalogue

of the paragraph a) of Art. 16 of the same diploma; that there is serious danger to life, the

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physical or psychic integrity or the freedom of the witness; and that the testimony or the

statements constitute input that is premised on or which has been shown to be essential

for the discovery of the truth. The experiment has revealed that the current catalogue of

crimes set out in paragraph a) of Article 16 shall lead to excessive restriction of the scope of

application of the special security measures and programmes, justifying their

change. In effect, it is apparent that organised crime involves

frequently a set of crimes that, not being committed by whoever is a part of

of criminal association, or being outside of their specific purpose, yet

present strong social danosity, with expression in penal moldura of maximum equal

or more than eight years in prison, for which they deserve the same substantive treatment

conferred on the criminal types understood in the current forecast of the a) of Article 16 para.

of Law No. 93/99 of July 14. The crimes of passive corruption for illicit act or

some crimes against freedom or sexual self-determination constitute examples in

that there is sufficient justification for increasing the sphere of protection of programmes

special security.

It is further noted that the need to complement the protection mechanisms already

existing with additional measures, in cases where the protected witness is deposed,

by virtue of collaboration with Justice, with a set of embarrassments

deep, not least of economic ind. It is justified in these situations to establish

new ways to protect the witness who provides essential input to the

discovery of the truth and realization of justice. Thus, in cases where the witness

protected if it departs, by virtue of collaboration with Justice, with embarrassments

derived from the existence of prosecutions of a criminal or counterordinate nature against you,

whose establishment has derived from a situation of abuse of authority, prevarication or

denigration of justice, the possibility of mitigation or dispensation of justice is expected (in the

case of criminal proceedings) or of mere admonestation (in case of case against-

Ordinance), under proposal or with mandatory hearing of CPES.

Already in the case of witnesses who, as a result of their collaboration with Justice,

stay unable to fulfil pecuniary obligations for the State or other

public entities, it matters to predict, in accordance with the balance of interests, morally

by the prevalence of the superior interest of the realization of justice, the possibility of

granting of a moratorium. The necessary cautionary ones are met by the stipulation

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that the initiative is up to CPES only and still by the forecasting of the deadline

prescriptional.

Thus:

Under the terms of the paragraph d) of Article 197 (1) of the Constitution, the Government presents to the

Assembly of the Republic the following proposal for a law:

Article 1.

Amendment to Law No. 93/99 of July 14

Articles 1, 16, 20, 22, and 26 and 26 of Law No. 93/99 of July 14, pass to

following wording:

" Article 1.

[...]

1-[...].

2-The measures referred to in the preceding paragraph may cover the

family of the witnesses, the people who with them live in

conditions analogous to those of the spouses and other persons who are

next.

3-[...].

4-[...].

5-[...].

Article 16.

...XX_ENCODE_CASE_One ...

The non-revelation of the identity of the witness may take place during some

or at all stages of the process, if they are cumulatively reunited the

following conditions:

a) The testimony or the statements disregarding the crimes of

trafficking of persons, of criminal association, of terrorism, of

international terrorism or terrorist organizations or, since

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which punishable with imprisonment of maximum equal or greater than

eight years, to crimes against life, against physical integrity, against

the freedom of the people, against freedom or self-determination

sexual, of corruption or committed by whoever is part of

criminal association, in the context of the purpose or activity of this;

b) The witness, her family members, the person who with her live in

conditions analogous to those of the spouses or other persons who

are close to a grave danger of attack on the

life, physical integrity, freedom or valuables

considerably high;

c) Thereof ...;

d) ...XX_ENCODE_CASE_One ... ......

Article 20.

...XX_ENCODE_CASE_One ...

1-Whenever ponderous security reasons warrant the justifying, being in question

crime that should be tried by the collective court or by the jury and without prejudice

of other protective measures provided for in this diploma, the witness may

benefit from punctual safety measures, particularly of the following:

a) Thereof ...;

b) Thereof ...;

c) Thereof ...;

d) Benefit from police protection, extended to family members, the person

that with it alive in conditions analogous to those of the spouses or the

other persons who are close to you;

e) Thereof ...;

f) Change of the physical place of habitual residence.

2-percent ... ago.

3-percent ... ago.

4-percent ... ago.

5-percent ... ago.

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6-When police protection prolongs predictably by a

period longer than three months, the responsible police corporation can

to propose to the judicial authority the application of other one-off measures of

safety that reduce the danger to the witness.

7-The measures provided for in paragraph 1 may include rules of behaviour to

observe by the beneficiary, implying his doleful inobservance to

suspension of the applied measures.

8-The decisions for modification, revocation and suspension of the measures are,

where possible, preceded by hearing of the witness.

Article 21.

[...]

The witness, his / her spouse, ascenders, descendants or siblings, the person

that with it alive in conditions analogous to those of the spouses or other persons

who are close to you may benefit from a special program of

security during the pendency of the process or even after this se

find findo, if they are cumulatively reunited as follows

conditions:

a) The testimony or the statements disregarding the crimes

referred to in paragraph a) of Article 16;

b) Thereof ...;

c) ...XX_ENCODE_CASE_One ... ......

Article 22.

[...]

1-percent ... ago.

2-percent ... ago.

3-percent ... ago.

4-A The decision to remove the programme provided for in the preceding paragraph is,

where possible, preceded by hearing of the beneficiary.

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Article 26.

[...]

1-percent ... ago.

2-A The special vulnerability of the witness may result, inter alia,

of your diminutive or advanced age, of your state of health or of the fact

of having to depose or render statements against person of the family itself

or of closed social group in which it is inserted in a condition of

subordination or dependence. "

Article 2.

Addition to Law No. 93/99 of July 14

They are deferred to Law No. 93/99 of July 14, Articles 31-and 31-B, with the following

wording:

" Article 31.

Criminal proceedings or counterordinance against the witness

1-Running criminal case against the witness, if there are founded

reasons to believe that the complaint or the prosecution has had

origin in a situation of abuse of authority, denigration of justice or

prevarication, the court can mitigate especially the penalty or decide-whether

by the dispensation of pity.

2-Checking of the assumptions provided for in the preceding paragraph at the stage of

inquiry or instruction, the provisions of Article 280 shall apply.

Code of Criminal Procedure.

3-Dealing with counterordinational process, verified the

assumptions provided for in paragraph 1, the competent administrative entity

may be limited to prowling an admoestation.

4-The provisions of the preceding paragraphs may be applied on a proposal from the

Commission of Special Security Programs, the application of the

witness or from the Public Prosecutor's Office or even officiously.

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5-A The decision is always preceded by hearing of the Programs Commission

Security Specials.

6-The procedural acts provided for in this article have urgent character and

the application or the proposal, as well as the opinion of the Commission, have

confidential character.

Article 31-B

Granting of a moratorium

1-To the witness who, as a result of his collaboration with justice, if

find in patrimonial situation that makes it impossible to comply

pecuniary obligations to the State or other public entities,

moratorium may be granted if the superior interest of the realization of the

Justice justifies it, by joint order of the members of the Government

responsible for the areas of Justice and guardian, upon proposal

substantiated from the Commission of Special Security Programs.

2-A The granting of a moratorium interrupts the limitation period.

3-The process and the decision concerning the granting of a moratorium have character

confidential and urgent. "

Article 3.

Amendment of the systematic organization of Law No. 93/99 of July 14

1-Chapter VI of Law No. 93/99 of July 14, passes to have as an epigrafe " Measures

additional protection " and integrates the articles 31-A and 31.-B deferred by the present

law.

2-Is added a Chapter VII to Law No. 93/99 of July 14 with the epiggraft of the

Chapter VI preceding that it goes on to integrate Articles 32 and 33.

Seen and approved in Council of Ministers of January 17, 2008

The Prime Minister

The Minister of the Presidency

The Minister of Parliamentary Affairs