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The Second Amendment To Decree-Law No. 35/2004, Of 21 February, Amending The Legal Framework For The Pursuit Of The Activity Of Private Security

Original Language Title: Procede à segunda alteração ao Decreto-Lei n.º 35/2004, de 21 de Fevereiro, que altera o regime jurídico do exercício da actividade de segurança privada

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PROPOSED LAW NO. 191 /X

Exhibition of Motives

The illicit exercise of private security activity calls into question personal legal goods

of the greatest dignity, such as life, physical integrity and freedom, and causes a social alarm

relevant. The subjection of private security activity to requirements such as alvshall, the

license or the professional card is intended to ensure that such activity takes place in a manner

not to put at risk such fundamental legal goods.

The provision of security services without the necessary alvate or licence or the exercise of

monitoring functions by non-cardholders of the professional card constitute, so

similar behaviors to the crime of usurpation of functions, provided for in Article 358.

of the Criminal Code and punished with imprisonment for up to two years or with penalty of a fine of up to 240

days. It is, in fact, of ducts endowed with a social danosity and a

materially negative ethical resonance materially identical.

It proposes, in this way, the criminalization of the illicit exercise of the security activity

private with the same penalty. It is further proposed, in the general terms of the Criminal Code, to

criminal accountability of legal persons and equiparents.

To prevent impunity from the behaviors prior to the entry into force of the new

regime, a transitional norm is expected to determine that the counterordinations of

provision of security services without the necessary alvshall or leave or exercise of

surveillance functions by non-cardholders continue to be sanctioned on the same

terms. It is a regime compatible with the irretroactivity principle of the law less

favorable that avoids an undesirable sanctionatory void.

Are further clarified the means to be used in certain specific categories of the

private security activity in particularly sensitive areas, specifically in

port and airport areas and enhanced the powers of the Security Council

Private.

It was heard from the Privy Security Council and the entities represented therein, as well as

the National Association of Portuguese Municipalities.

Thus:

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

Assembly of the Republic the following proposal for a law:

Article 1.

Subject

This Law amenages the Decree-Law No. 35/2004 of February 21, with the wording given

by Decree-Law No. 198/2005 of November 10.

Article 2.

Amendment to Decree-Law No 35/2004 of February 21

Articles 6, 12, 14, 20, 28, 31, 31, 31 and 33 of the Decree-Law No 35/2004 of 21

of February, shall be replaced by the following:

" Article 6.

[...]

1-[...].

2-[...].

3-The various categories of private security watchdogs, specifically,

safety coordinator, security, porter, among others, your model

of an identiactive card, functions, means, training and other requirements

required, as well as the respective rates, are defined by Portaria by the

member of the Government responsible for the area of the Internal Administration.

4-[ Previous Article No 3 ].

5-[ Previous Article No 4 ].

6-Sports enclosure assistants, in the control of access to the enclosures

sports, can carry out personal prevention and safety magazines

with the strict objective of preventing the entry of objects and substances

prohibited or likely to generate or enable acts of violence,

and may, for the purpose of this, resort to the use of metal detection rackets and

of explosives.

7-Mediating express permission of the member of the Government responsible for the

area of the Internal Administration and for a period delimited in time, the

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suitably qualified surveillance personnel for the exercise of duties

of control of access to airport and port facilities, as well as

to other places of vetted or conditioned access to the public that

justifying enhanced protection, may carry out personal magazines and searches

of prevention and safety, using appropriate technical means,

specifically, raquets of detection of metals and explosives, well

as non-intrusive baggage inspection equipment, with the strict

purpose of detecting and preventing the entry of prohibited persons or objects

and substances prohibited or likely to generate or enable acts that

put in question the safety of people and goods.

Article 12.

[...]

The entities holding alvshall must ensure the permanent presence in the

its personnel facilities that guarantee contact, at all times, through

radio or other means of idoneo communication, with the surveillance personnel, the

users of the services and the security forces.

Article 14.

[...]

1-The surveillance personnel are subject to the general regime of use and possession of a weapon,

may resort, in particular, to aerosols and electric weapons, means of

non-lethal defence of class E, pursuant to Law No. 5/2006, of 23 of

February.

2-[...].

3-[...].

4-A The authorisation provided for in paragraph 2 is communicated in the shortest term, which does not

may exceed 24 hours, to the competent authority for the surveillance of the

private security activity.

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Article 16.

[...]

1-The entities holding alvshall or licence shall ensure the distribution

and use by its surveillance personnel, from ballistic protection jackets,

whenever the risk of the activities to be developed justifies it.

2-Can the use of technical means of security not be used

provided for in this diploma, by dispatch of the member of the Government

responsible for the area of the Internal Administration, heard the Board of

Private Security.

Article 20.

[...]

1-[...].

2-[...].

3-[...]:

a) A representative of the Council for Ethics and Security in the

Sport;

b) [...];

c) [...].

4-[...].

5-[...].

6-[...].

Article 21.

[...]

[...]:

a) [...];

b) [...];

c) Pronounce on the granting and cancellation of alvarás and licences,

whenever requested by the member of the Government responsible for the

area of the Internal Administration.

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d) [...];

e) [...];

f) [...];

g) [...].

Article 28.

[...]

1-[...].

2-[...].

3-A National Directorate of the Public Security Police issues the alvshall, the

license and respective aversions and communicates your terms to the

Command-General of the Republican National Guard, to the National Directorate of the

Judicial Police, the Inspectorate-General of the Internal Administration and the

Civil Government.

4-[...].

Article 31.

[...]

The surveillance of private security activity and their training is

ensured by the National Directorate of the Public Security Police, with the

collaboration of the Republican National Guard, and without prejudice to the

competencies of the security forces and services and the Inspectorate-General of the

Internal Administration.

Article 33.

[...]

1-In accordance with the provisions of this decree-law, constitute against-

very serious ordering:

a) [...];

b) [ Previous point (d) ];

c) [ Previous point (e) ];

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d) [ Previous point f) ];

e) [ Previous point (g) ];

f) [ Previous point (h) ];

g) [ Previous point (i) ];

h) [ Previous point (j) ];

i) Failure to comply with the requirements required of vehicles assigned to the

transport of values;

j) Failure to comply with the requirements required for the transport of values

equal to or greater than ten thousand euros.

2-[...]:

a) [...];

b) [...];

c) [...];

d) [...];

e) Failure to comply with the requirements required for the transport of values

less than ten thousand euros.

3-[...].

4-[...].

5-[...].

6-[...].

7-[...].

8-[...].

9-[...]. "

Article 3.

Addition to the Decree-Law No. 35/2004, of February 21

1-Chapter VI of Decree-Law No. 35/2004 of February 21, passes to integrate a

Section I and a Section II, entitled "Crimes" and "Contra-ordinations", respectively.

2-A Section I of Chapter VI of Decree-Law No. 35/2004 of February 21, integrates the

following provisions:

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" Article 32.

Unlawful exercise of private security activity

1-Who to provide security services without the necessary alvshall or license or

exercise surveillance functions not being the holder of the professional card is

punished with imprisonment for up to 2 years or with penalty of fine up to 240 days,

if more serious penalty is not fit for him by force of another legal provision.

2-In the same sentence it incurs who to use the services of the person referred to in the

previous number, knowing that the provision of security services if

performs without the necessary alvshall or licence or that the surveillance functions

are not exercised by professional card holder.

Article 32 -B

Criminal liability of legal persons and equiparents

Legal persons and equiparal entities are responsible, in the terms

general, for the crime provided for in paragraph 1 of the previous article. "

3-A Section II of Chapter VI of Decree-Law No. 35/2004 of February 21 passes the

integrate articles 33 to 36.

Article 4.

Reserved competence of the Police Judiciary

It is the reserved competence of the Police Judiciary to investigate the crimes provided for in the

articles 32-A and 32.-B, pursuant to the Criminal Investigation Organization Act.

Article 5.

Transitional arrangements

The counter-ordinations of providing security services without the necessary alvshall or

license and exercise of surveillance functions by non-cardholders of the professional card,

practiced prior to the entry into force of this Law, continue to be sanctioned in the

terms of the scheme provided for in Articles 33 and following of the Decree-Law No. 35/2004 of 21

of February.

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Seen and approved in Council of Ministers of March 27, 2008

The Prime Minister

The Minister of the Presidency

The Minister of Parliamentary Affairs