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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1 PROPOSAL of law No. 179/X explanatory memorandum to the law No. 93/99, of 14 July, introduced and codified a set of measures for the protection of witnesses in criminal proceedings and was regulated by Decree-Law No. 190/2003, of 22 August. Through these diplomas, the Portuguese legal system corresponded to the need, recognized in several international instruments, in particular in recommendation No R (97) 13 of the Council of Europe, to strengthen the rights of witnesses, understanding as such a subject set wider than the code of criminal procedure. The experience accumulated during the period of validity of the said diplomas confirmed the usefulness and necessity of such instruments, in particular in the fight against organized crime, but also the persistence of areas in which it is appropriate to go further, with a view to enhance the collection of essential personal evidence for the discovery of truth, in conditions of freedom and impartiality, while guaranteeing the rights of defence. With this in mind, and based on the experience of the work done by the Special Security Programs (CPES), were identified some bottlenecks and others in which the targeted purposes highlight the need to complement the measures already provided with new measures.

In the field of security, one-off measures laid down in article 20 of law No. 93/99, of 14 July, mind contemplate situations where the risk can be substantially reduced with the change of the place of habitual residence, predicting even greater intervention of the arresting officer Corporation regarding the appropriateness of other measures, as it is in prime position for that purpose. It is also indicate the consequences for the recipient when they don't observe the rules of conduct pertaining to reducing the danger. Pursuant to article 21 of law No. 93/99, of 14 July, the granting of special security program the witness in criminal proceedings, to your spouse, ascendants, descendants, brothers and other people close to him requires, as cumulative assumptions, that the statement or statements referring to crime registered in the catalog) (a) of article 16 of the same Decree-Law; that there is serious danger to the life, the physical or mental integrity or 2 the freedom of the witness; and that the statement or statements are presumed contribution or that has been essential to the discovery of truth. Experience has revealed that the current catalog of crimes provided for in article 16 (a)) leads to excessive restriction of the scope of the special security measures and programmes, which the your amendment. In fact, it turns out that organized crime often involves a set of crimes not committed by whoever is part of criminal association, or being out of your particular purpose, still feature strong social danosidade with frame maximum criminal expression greater than or equal to eight years in prison, for which they deserve the same treatment given to criminal types noun within the current forecast (a)) of article 16 of law No. 93/99 , of 14 July. Passive corruption crimes for tort or any crimes against sexual freedom or self-determination are examples where there is justification enough to increase the protection of special security programs.

There is still the need to complement existing protection mechanisms with additional measures in cases where the witness is protected by virtue of collaboration with justice, with a set of constraints, especially of economic nature. It is appropriate, in these situations, establish new ways to protect the witness who provides essential contribution to the discovery of the truth and achieving justice. Thus, in cases where the witness protection if you encounter as a result of the collaboration with justice, with constraints derived from the existence of criminal or administrative proceedings against you, whose establishment has derived from a situation of abuse of authority, malfeasance or denial of Justice, provides for the possibility of mitigation or remission of sentence (in the case of criminal proceedings) or mere admonition (in the case of proceedings against-ordenacional) on a proposal or with mandatory hearing of CPES. In the case of witnesses who, as a result of your cooperation with the Justice, be unable to meet financial obligations to the State or other public entities, provision should be made, in accordance with the balance of interests, especially for prevalence of best interests of the realization of Justice, the possibility of granting a moratorium. The necessary precautions are met by stipulation 3 that the initiative fits only the CPES and the forecast of the interruption of the Statute of limitations.

So: under d) of paragraph 1 of article 197 of the Constitution, the Government presents to the Assembly of the Republic the following proposal of law: article 1 amendment to law No. 93/99, of 14 July articles 1, 16, 20, 21, 22 and 26 of law No. 93/99, of 14 July, are replaced by the following : ' article 1 [...]

1 - […]. 2-the measures referred to in the preceding paragraph may include the families of witnesses, people who live with them in conditions similar to those of spouses and other people close to them. 3 - […]. 4 - […]. 5 - […].

Article 16  ...  not revelation of the identity of the witness may take place during any or all phases of the process, if the following conditions are met: a) the statement or statements relate to crimes of human trafficking, racketeering, terrorism, international terrorism or terrorist organizations or, since 4 that punishable by maximum jail not less than eight years the crimes against life, against the physical integrity, against the freedom of the people, against sexual freedom or self-determination, or corruption committed by whoever is part of criminal association, within the framework of the purpose or activity; (b)) the witness, their family members, the person with her to live in conditions similar to those of spouses or other persons close to them run a serious risk of attack against life, physical integrity, freedom or assets of considerable value; c)  ... ; d)  ...  . Article 20. 

1-where powerful security reasons so warrant, being concerned that crime should be judged by the Court or by the collective jury and without prejudice to other protective measures provided for in this Decree, the witness can benefit from one-off measures, in particular the following security: a)  ... ; b)  ... ; c)  ... ; d) benefit from police protection, extend to family members, the person with her to live in conditions similar to those of spouses or others who may be next; and)  ... ; f) change of physical location of habitual residence. 2 - ... . 3 - ... . 4 - ... . 5 - ... . 5 6-When the protective custody continues predictably for a period exceeding three months, corporate officer may propose to the judicial authority application of other ad hoc measures that reduce the security risk to the witness. 7-the measures provided for in paragraph 1 may include rules of conduct to be observed by the beneficiary, implying the intentional failure to comply with the suspension of your measures. 8-the decisions of modification, revocation and suspension of the measures are, whenever possible, preceded by hearing of the witness.

Article 21 [...]

The witness, your spouse, ascendants, descendants or siblings, the person with her to live in conditions similar to those of spouses or other persons close to him can receive a special security program during the pendency of the proceedings or even after this meet ended, if the following conditions are met: a) the statement or statements relate to offences referred to in subparagraph (a)) of article 16; b)  ... ; c)  ... . Article 22 [...]

1 - ... . 2 - ... . 3 - ... . 4-the decision of deletion of the program provided for in the preceding paragraph is, whenever possible, preceded by the beneficiary.

6 article 26 [...]

1 - ... . 2-the special vulnerability of the witness may result, in particular, of small or advanced your age, your health status or have to testify or give evidence against the person or social group family itself closed in which is inserted in a condition of subordination or dependency. '

Article 2 Amendment to law No. 93/99, of 14 July are added to law No. 93/99, of 14 July, articles 31-and 31-B, with the following text:% quot% article 31-the Criminal Process or for offences against the witness 1-Running criminal case against the witness, if there are reasonable grounds for believing that the complaint or the institution of the proceedings originated in a situation of abuse of authority , denial of Justice or abuse of power, the Court may mitigate especially worthwhile or decided by the penalty waiver. 2-If the assumptions referred to in paragraph 1 at the stage of investigation or instruction, shall apply the provisions of article 280 of the code of criminal procedure. 3-in the case of violation process, checked the assumptions referred to in paragraph 1, the competent administrative authority may simply issue a warning. 4-the preceding paragraphs can be applied on a proposal from the Commission in special Security Programmes, at the request of the witness or of the public prosecutor or even off the record. 7 5-the decision is always preceded by a hearing of the Commission of special Security Programs. 6-The procedural acts provided for in this article have urgency and the application or proposal, as well as the opinion of the Committee, are confidential.

Article 31-B 1-moratorium on granting witness who, as a result of your collaboration with justice, in which the assets and liabilities would prohibit cash obligations to the State or other public bodies, can be granted a moratorium if the best interests of the realization of Justice warrant, by order all the members of the Government responsible for the areas of Justice and of guardianship on a proposal from the Commission based special security programs. 2-granting of moratorium interrupts the limitation period. 3-the process and the decision concerning the granting of moratorium have confidential and urgent. '

Article 3 amendment to the systematic organization of law No. 93/99, July 1-14 chapter VI of law No. 93/99, of 14 July, is headed ' additional Measures as protection ' and articles 31-and 31-B added by this law. 2-Chapter VII is added to law No. 93/99, of 14 July with the title of Chapter VI before that becomes part of articles 32 and 33 and approved by the Council of Ministers of 17 January 2008 the Prime Minister, the Minister of Parliamentary Affairs Minister Presidency