Advanced Search

Approves The Law Of Organization Of Criminal Investigation

Original Language Title: Aprova a lei de organização da investigação criminal

Subscribe to a Global-Regulation Premium Membership Today!

Key Benefits:

Subscribe Now for only USD$40 per month.

1

PROPOSED LAW NO. 185 /X

Exhibition of Motives

This Law comes to comply with the Resolution of the Council of Ministers No. 45/2007,

of March 19. Thus, the Coordinating Board is reformulating, strengthening the

coordination and cooperation of all criminal police bodies and the sharing of

information among them second principles of necessity and competence. The proposal

also adapts the organization of the criminal investigation to the reforms of the Criminal Code and

of the Code of Criminal Procedure, the Criminal Policy Framework Act and the Law on Politics

Criminal and, still, the new Organic Laws of Forces and Security Services. Finally,

this bill receives the lessons of law enforcement over the course of about seven years,

introducing the adjustments that have been shown to be necessary.

Several modifications constitute mere legislative updates, with a view to

harmonization of the Criminal Investigation Organization Act with the Criminal Codes and

of Criminal Procedure. Thus, they take into account the introduction of the communication deadline of the

crime news to the Public Prosecutor's Office for the Code of Criminal Procedure and the change of

designation of certain types of crimes under the Criminal Code.

On the other hand, the clarification of the concepts of generic competence is made,

specific and reserved. In this sense, the law continues to designate as police bodies

Criminal of generic competence the Police Judiciary, the Public Security Police and

the Republican National Guard, refers to as criminal police bodies of competence

specific all remaining and identifies as criminal police organs of

reserved competence those to whom the law confers exclusive competence for the

investigation of certain crimes-including expressly in this latter category a

Judicial Police.

To avoid overlaps, which not only imply waste of resources but also

cause serious damage to criminal investigation, introduce standards of resolution of

conflicts of competence. In this way, taking into account that the organs of criminal police

of generic competence and the criminal police bodies of specific competence

can today investigate the same crimes-the one that has already implicated the serious

inconvenience of the existence of parallel processes-, the principles of the

specialization and rationalization in the allocation of available resources. With identical

2

objective, the proposal devotes solutions aimed at guaranteeing the apportionment of

competencies. Such solutions oblique the criminal police organs that receive the

news of crimes and are not competent for your research, to communicate

immediately such news to the competent criminal police bodies, by the head of them

only practice the necessary and urgent cautionary acts to ensure the means of

proof.

The Judiciary Police are tasked, in exclusivity, to investigate the criminal wrongdoing

more serious and complex. But presently, the Research Organization Act

Criminal allows certain crimes of the reserved jurisdiction of the Police Judiciary

are investigated by other criminal police bodies. This regime continues to

behold. However, a significant and nuclear part of the crimes included in the

reserve of jurisdiction of the Judicial Police, which is unceilable to be dewound to

any other criminal police body.

To ensure that the deferrals of competences comply with the principles of exemption and

objectivity, strengthen the powers of the Attorney General of the Republic. This organ of

top of the autonomous magistrate of the Public Prosecutor's Office, which is currently limited to

receive joint proposals from the interested criminal police bodies, passes

of the initiative. Thus, it is to the Attorney General of the Republic that it is up to us to defer the

competency for criminal investigation, after hearing the criminal police organs

involved. However, if the process is already in stage of instruction, its

transfer from one to another criminal police body-which only exceptionally if

admits for reasons of procedural necessity-it is the jurisdiction of the judge.

In addition, they densify the criteria presiding over the deferring of competences

by the Attorney General of the Republic: the existence of simple and evident evidence, the

verification of the assumptions of the special forms and more Celeres of the process, the

circumstance of dealing with crime on which to focus criminal policy guidelines

or the undemanding of special mobility of acting or of means of high

technical specialty for research. It is thus evicted that the Police Judiciary

lose operativity by dealing with processes of relatively diminished importance.

At the opposite pole, it also admits that the Attorney General of the Republic defrath to the

Judicial Police the investigation of crimes that do not fall within your reservation. This

possibility is already contemplated, but it is broadened, strengthening the competences of the

Judicial Police and ascribe to the cases of greater complexity, on the grounds of the

3

multi-located character of the mains, the plurality of the agents or the victims, of the

highly organized form of the practice of facts, their transnational dimension or

international and the needs of high technical expertise for research.

With this scheme it is ensured that the distribution of competences between the various organs

of criminal police fulfills its scope: recognizing the Judiciary Police as the organ of

criminal police for excellence, the security forces-PSP and GNR-as organs of

criminal police indispensable for the investigation of a vast number of crimes and

several other bodies as criminal police bodies vocationally to the

investigation of crimes enrolled in areas or human activities endowed with

remarkable specificities. The punctual changes introduced in respect of

distribution of skills result from hearing of major police bodies

Criminal-Republican National Guard, Public Security Police, Police

Judiciary and Foreign and Boundary Service-and incorporate the proposals by them

presented.

Enhancing the powers of the Attorney General of the Republic and facilitating the exercise of the

your assignments, it is possible that the deferris of skills will be carried out by

dispatch of a generic nature. Such a dispatch shall state the types of crimes, their

concrete circumstances or the limits of the penalties that are applicable to them.

The proposal enhances the duty of cooperation between criminal police bodies,

by regulating the terms of their collaboration within EUROPOL and INTERPOL. The

Judicial Police, given the accumulated experience and the vocation to investigate crimes

international and cross-border, continues to ensure the management of these offices,

allowing the access of the other criminal police organs to data that are necessary

to the exercise of their respective competences.

Enlightened, outrossim, that the integrated criminal information system, the creation of which

is planned, from the beginning, in the Criminal Investigation Organization Act, not

corresponds to a single data base. It is simply the sharing of

information between criminal police bodies, according to the needs and

competences of each of them and always with safeguarding the regimes of the secret of

justice and the secret of state. To the Secretary General of the Internal Security System

it is up to the good coordination, cooperation and sharing of information between the organs

of criminal police, without ever accessing prosecute-crimes or the constant elements

of these processes and of the databases themselves.

4

On the Coordinating Board of the Criminal Police Bodies passes to be able to participate

all criminal police bodies-of generic, specific and reserved competence-

and not only, as until now succeeded, GNR, PSP and PJ. It has already been found that it is

impossible to coordinate the activity of criminal police organs in absentia. This

organ is chaired by the Ministers of Internal Affairs and Justice, giving

continuity to the current model.

Experience demonstrates that this body does not work regularly without an entity

which coadjuves the Ministers of the Internal and Justice Administration in the preparation and the

conduct of the meetings and ensure current cooperation, information sharing and

provision of means and services to the criminal police bodies. Therefore, it is anticipated

that the Secretary General of the Internal Security System is part of the Council and

perform such functions. However, it does not exercise intraprocedural skills, not

may intervene in concrete investigations or processes or access the respective

elements.

The Attorney General of the Republic continues to participate in the Coordinating Council of the

Criminal Police organs, either for their initiative or upon invitation. However, for

that your intervention is more effective, it is guaranteed to be informed in advance of the

date and order of proceedings of the meetings. It is further clarified that this participation in the

Council is without prejudice to the autonomy of the Public Prosecutor in the exercise of the

skills assigned to it by the Constitution and by the law.

These are the only innovations relating to the Coordinating Board of the Organs of

Criminal Police. It widens the composition of the organ, but its competences

coincide with those provided for since 2000.

Finally, to safeguard the principles of legality, the independence of the courts and

of the autonomy of the Public Prosecutor's Office, determines that neither the Coordinating Council

Organs of Criminal Police or the Secretary-General may issue directives,

instructions or orders about any given processes. These bodies promote

more effective coordination and closer cooperation between the police bodies

criminal, being in the service of the democratic rule of law.

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:

5

CHAPTER I

Criminal investigation

Article 1.

Definition

The criminal investigation comprises the set of representations which, under the law

criminal procedural, if they are intended to ascertain the existence of a crime, determine its

agents and their responsibility and find out and collect the evidence, in the framework of the

process.

Article 2.

Direction of criminal investigation

1-A The direction of the investigation rests with the competent judicial authority at each stage of the

process.

2-A The judicial authority is assisted in the investigation by the criminal police bodies.

3-The organs of criminal police, as soon as they take notice of any crime,

communicate the fact to the Public Prosecutor's Office in the shortest term, which it cannot

exceed 10 days, without prejudice to, in the scope of the order of a generic nature

provided for in Article 270 (4) of the Code of Criminal Procedure, should start from

immediate research and, in all cases, practice the necessary cautionary acts

and urgent to ensure the means of proof.

4-The criminal police bodies act in the process under the direction and in dependence

functional of the competent judicial authority, without prejudice to the respective

hierarchical organization.

5-Investigations and delegated acts by the judicial authorities are carried out

by the officials assigned by the criminal police authorities to the effect

competent, in the framework of the technical and tactical autonomy necessary to the effective exercise

of these tasks.

6-A The technical autonomy is based on the use of a set of knowledge and

methods of acting appropriate and tactical autonomy consists of the choice of time,

place and mode appropriate to the practice of acts corresponding to the exercise of the

legal assignments of the criminal police organs.

6

7-The criminal police organs boost and develop, by themselves, the representations

legally permissible, without prejudice to the judicial authority power, to the whole

time, avocate the process, scrutinize your progress and legality and give instructions

specific about the realization of any acts.

CHAPTER II

Criminal police organs

Article 3.

Criminal police organs

1-Are criminal police organs of generic competence:

a) The Judicial Police;

b) The Republican National Guard;

c) The Public Security Police.

2-Have specific competence all remaining criminal police bodies.

3-A attribution of competence reserved to a criminal police body depends on

express legal prediction.

4-Compete to the organs of criminal police:

a) Supporting the judicial authorities in the investigation;

b) To develop the actions for the prevention and research of your competence or that

are committed to them by the competent judicial authorities.

Article 4.

Specific jurisdiction in criminal investigation

1-A assignment of specific competence shall comply with the principles of specialization and

rationalization in the allocation of available resources for criminal research.

2-Without prejudice to the provisions of Article 7 (4) and (7), the criminal police bodies

of generic competence abstain from initiating or pursuing investigations for crimes

that, in concrete, are being investigated by criminal police bodies of

specific competence.

7

Article 5.

Incompetence in criminal investigation

1-Without prejudice to the cases of dewound competence, the criminal police body that

have news of the crime and are not competent for your research only may

practice the necessary and urgent cautionary acts to ensure the means of proof.

2-Without prejudice to the cases of dewound competence, if the ongoing investigation comes to

reveal connection to crimes that are not within the competence of the police body

criminal who has initiated the investigation, this remand, with knowledge to the

judicial authority, the process for the competent criminal police body, in the

shorter term, which cannot exceed 24 hours.

3-In the case provided for in the preceding paragraph, the competent judicial authority may

promote cooperation among the criminal police bodies involved, through the

forms deemed appropriate, if this would appear useful for the good progress of the

research.

Article 6.

Competency of the Republican National Guard and the Public Security Police

in the matter of criminal investigation

It is of the generic competence of the Republican National Guard and the Security Police

Public the investigation of the crimes whose competence is not reserved to other organs

of criminal police and still of the crimes whose investigation is committed to them by the

judicial authority competent for the direction of the proceedings, pursuant to Rule 8.

Article 7.

Jurisdiction of the Police Judiciary in criminal investigation

1-It is the jurisdiction of the Police Judiciary to investigate the crimes provided for in the

following numbers and the crimes whose research is committed to it by the authority

judicial officer competent for the direction of the proceedings, pursuant to Rule 8.

2-It is the reserved competence of the Police Judiciary, and may not be deinjured to others

organs of criminal police, the investigation of the following crimes:

a) Felonies doled or aggravated by the result, when it is element of type a

8

death of a person;

b) Slavery, kidnapping, abduction and taking of hostages;

c) Against the cultural identity and personal integrity and those provided for in the Criminal Law

on Violations of International Humanitarian Law;

d) Counterfeit currency, credit securities, stamped values, stamps and other

equated values or the respective passage;

e) Capture or attack on the safety of transport by air, water, rail

or of road transport to which it corresponds, in the abstract, equal penalty or

greater than eight years in prison;

f) Participation in armed riot;

g) Criminal association;

h) Against the security of the state, with the exception of those respecting the process

electoral;

i) Bleaching;

j) Trafficking in influence, corruption, embezzling and economic participation in

business;

l) Terrorist organizations and terrorism;

m) Practiced against the President of the Republic, the President of the Assembly of

Republic, the Prime Minister, the presidents of the higher courts and the

Prosecutor-General of the Republic, in the performance of his duties or because of

of them;

n) Prevarication and abuse of powers practiced by holders of political office;

o) Fraud in obtaining or deviating from subsidy or grant and fraud in obtaining

of bonified credit;

p) Theft in credit institutions, repartitions of the Public Farm and post office;

q) Related to the crimes referred to in points d) , j) and o) .

3-It is still the reserved competence of the Police Judiciary the investigation of the following

crimes, without prejudice to the provisions of the following article:

a) Against the freedom and sexual self-determination of minors or incapable or the

to correspond, in the abstract, sentence greater than five years in prison;

b) Theft, damage, theft or receptation of mobile thing that:

i) Posits important scientific, artistic or historical value and find yourself in

public or private collections or in place accessible to the public;

ii) Posits important significance for technological development or

9

economic;

iii) Belonging to cultural heritage, being legally ranked or in

pathways of classification; or

iv) By its nature, it is highly dangerous substance;

c) Burla punishable with a prison sentence of more than five years;

d) Doleful insolvency and danish administration;

e) Falsification or counterfeiting of driving licences, booklets and registration titles

of ownership of motor vehicles and registration certificates, of

certificates of literary and document qualifications of identification or of

travel;

f) Fire, explosion, release of toxic gases or asphyxiants or substances

radioactive, provided that, in any case, the fact is attributable to the title of

dolo;

g) Pollution with common danger;

h) Executed with pumps, grenades, materials or explosive devices, weapons

of fire and trappinged objects, nuclear, chemical or radioactive weapons;

i) Relating to the trafficking of narcotic drugs and psychotropic substances,

typified in Articles 21, 22, 23, 27 and 28 of the Decree-Law No. 15/93, of

January 22, and of the rest provided for in this diploma to be attended to you

or that it collates news;

j) Economic-financial;

l) Tributaries of higher value to (euro) 1,000,000;

m) Informatics and practiced with recourse to computer technology;

n) Trafficking and addictions of vehicles and trafficking in arms;

o) Related to the crimes referred to in points d) , j) and m) .

4-Compete also to the Police Judiciary, without prejudice to the skills of the Service of

Foreigners and Borders and the Securities Market Commission, the

investigation of the following crimes:

a) Aid for illegal immigration and association of illegal immigration aid;

b) Trafficking in persons;

c) Falsification or counterfeiting of identification or travel document,

falsesage of testimony, forensics, interpretation or translation, related to the

crimes referred to in points a) and b) ;

d) Relative to the securities market.

10

5-In the cases provided for in the preceding paragraph, the criminal investigation is developed by the

criminal police body that has initiated it, for having acquired the news of the crime or

by determination of the competent judicial authority.

6-Ressalva of the provisions of this article the reserved competence of the Police

Military Judiciary in criminal investigation, in the terms of the respective

Statute, the mechanism of which is provided for in Article 8 (3), being applicable.

Article 8.

Competence dewound for criminal investigation

1-At the stage of the inquiry, the Attorney General of the Republic, heard the police bodies

criminal involved, defers the investigation of a crime referred to in Article 3 of the article

previous to another criminal police body, as long as this appears, in concrete,

more appropriate to the good progress of the research and, specifically, when:

a) There is simple and evident evidence within the meaning of the Code of Criminal Procedure;

b) The assumptions of the special forms of process are verified, in the

terms of the Code of Criminal Procedure;

c) If it deals with crime on which to focus guidelines on the small

criminality, pursuant to the Criminal Policy Act in force; or

d) Research does not require special mobility of performance or means of high

technical specialty.

2-No. The provisions of the preceding paragraph shall apply when:

a) Research takes special complexity by force of character

plurilocalized from the mains or the plurality of the agents or victims;

b) The facts have been committed in a highly organised manner or take over

transnational character or international dimension; or

c) The research requires, in a constant manner, knowledge or means of

high technical specialty.

3-At the stage of the inquiry, the Attorney General of the Republic, heard the police bodies

criminal involved, defers to the Police Judicial the investigation of unforeseen crime

in the preceding article when any of the circumstances referred to in points are found in the paragraphs

of the previous number.

4-The deferrals referred to in paragraphs 1 and 3 may be carried out by dispatching of

generic nature of the Attorney General of the Republic indicating the types of crimes,

11

their concrete circumstances or the limits of the penalties that are applicable to them.

5-In cases provided for in paragraphs 4 and 5 of the preceding article, the Attorney General of the

Republic, ears the criminal police bodies involved, defers probe to

criminal police organ other than the one that has initiated it, from among those referred to in the

n. 4 of the same article, when such appears in concrete most suitable to the good

progress of the investigation.

6-By delegation of the Attorney General of the Republic, the Attorneys General district

may, on a case-by-case case, proceed to the deinjury provided for in paragraphs 1, 3 and 5.

7-At the stage of the instruction, it is competent for the criminal police organ that has assured the

research at the stage of inquiry, unless the judge understands that this does not appear,

in concrete, the most appropriate to the good progress of the investigation.

Article 9.

Negative conflicts of competence in criminal investigation

If two or more criminal police bodies consider themselves to be incompetent for the

criminal investigation of the same crime, the conflict is addressed by the judicial authority

competent at each stage of the process.

Article 10.

Duty of cooperation

1-The criminal police bodies cooperate each other in the exercise of their

attributions.

2-Without prejudice to the provisions of Article 5, the organs of criminal police shall

communicating to the competent entity, in the shortest term, which may not exceed 24

hours, the facts of which they have knowledge relating to the preparation and execution of

crimes for whose research they are not competent, only may practice, up to the

your intervention, the cautionary and urgent acts to obster to your consummation and

ensure the means of proof.

3-The unique identification number of the process is assigned by the police body

criminal competent for the investigation.

12

Article 11.

Integrated criminal information system

1-The duty of cooperation provided for in the preceding Article shall be guaranteed, in particular, by

an integrated criminal information system that ensures the sharing of information

between the criminal police organs, in accordance with the principles of necessity and the

competence, without prejudice to the legal regimes of the secret of justice and the secret of

State.

2-Access to information through the integrated criminal information system is

regulated by access levels, within the framework of each criminal police body.

3-A The sharing and access to information provided for in the previous figures are regulated

by decree-law.

Article 12.

International cooperation

1-Compete to the Police Judiciary to ensure the operation of the National Unity

EUROPOL and the INTERPOL National Office.

2-A Republican National Guard, the Public Security Police and the Service of

Foreigners and Borders integrate, through permanent liaison officers, the

unit and the cabinet provided for in the preceding paragraph.

3-A Judicial Police, the Republican National Guard, the Security Police

Public and the Service of Foreign and Border integrate, through officers of

permanent connection, the National Liaison Offices to be operated with the

EUROPOL and INTERPOL.

4-All criminal police bodies have access to the information made available by the

EUROPOL National Unit, by the INTERPOL National Office and by the

National Liaison Offices to be operated together of EUROPOL and INTERPOL,

within the framework of their respective competences.

CHAPTER III

Coordination of the criminal police bodies

13

Article 13.

Council Coordinator

1-The Coordinating Council of the Criminal Police Bodies is chaired by the

members of the Government responsible for the areas of Justice and Administration

Internal and of it are part of:

a) The Secretary-General of the Integrated Homeland Security System;

b) The Commander-General of the Republican National Guard and the Directors

Nationals of the Public Security Police, the Judiciary and the Service

of foreigners and Borders;

c) The maximum leaders of criminal police bodies of competence

specific;

d) The Director-General of Prisonal Services.

2-The council may meet with the participation of the members referred to in points a ), b)

and d) of the preceding paragraph or, where the nature of the subjects justifies it, too

with the participation of the remaining.

3-The Secretary General of the Internal Security System co-adjuts the Chair in the

preparation and conduct of meetings.

4-Participates in the meetings of the council the member of the Government responsible for the

coordination of drug policy whenever they are agendata subjects

related to this area.

5-On their own initiative, whenever they understand it, or at the invitation of the presidency, they may

participate in the meetings of the council the President of the Board of Governors of the

Magistrate and the Attorney General of Republica.

6-For the purposes of the preceding paragraph, the President of the Superior Council of Magistrate

and the Prosecutor General of the Republic are informed of the dates of achievement of the

meetings as well as their respective orders of work.

7-A The participation of the Attorney General of the Republic in the council is without prejudice to the

autonomy of the Public Prosecutor's Office in the exercise of the skills that are

assigned by the Constitution and the law.

8-A Chair, when considering it convenient, may invite to participate in the

meetings other entities with special responsibilities in prevention and repression

of crime or in the research and production of information relevant to the

internal security.

14

Article 14.

Competencies of the Coordinating Council

1-Compete to the Coordinating Council of the Criminal Police Bodies:

a) Give generic guidelines to ensure the articulation between the organs of

criminal police;

b) Ensure the appropriate coadjuvation of the judicial authorities by the

organs of criminal police;

c) Informing the Superior Council of the Magistrature on likely deliberations

of reliefs for the exercise of the competences of this;

d) Request to the Attorney General of the Republic for adoption, within the framework of

respective skills, from the arrangements that prove appropriate to a

effective action of crime prevention and research;

e) Regularly appreciate statistical information on prevention actions and

criminal investigation;

f) Define work methodologies and management actions that favour a

better coordination and more effective action of the criminal police bodies in the

multiple hierarchical levels.

2-The Coordinating Board may not issue directives, instructions or orders on

determined processes.

Article 15.

System of coordination

1-A The coordination of the criminal police bodies is ensured by the Secretary-General of the

Internal Security System, in accordance with the generic guidelines issued by the

The Coordinating Council of the Criminal Police Bodies and without prejudice to the

competencies of the Public Ministry.

2-Compete to the Secretary-General, in the framework of the coordination provided for in the number

previous and heard the maximum leaders of the criminal police bodies or, in the

different hierarchical levels or territorial units, the authorities or agents of

criminal police that these uneven:

a) Ensure compliance with the division of competences between police bodies

15

criminal, so as to avoid conflict;

b) Ensure the sharing of backgrounds and support services, according to the

needs of each criminal police body;

c) Ensuring the functioning and access of all criminal police bodies

to the integrated criminal information system, according to its

needs and competences.

3-The Secretary-General may not issue directives, instructions or orders on proceedings

determined.

4-The Secretary-General cannot access concrete processes, the elements of them

constants or the information of the integrated criminal information system.

CHAPTER IV

Final provisions

Article 16.

Pending processes

The new rules of apportionment of competences for criminal research among the

criminal police organs do not apply to the pending proceedings at the date of entry into

vigour of this Law.

Article 17.

Own personal schemes

The status, skills and form of recruitment of the governing staff and the chefias of the

bodies of criminal police of generic competence are those defined in the respective

organic diplomas.

Article 18.

Decree-Law No. 81/95, of April 22

The statuary in this Law shall be without prejudice to the provisions of the Decree-Law No. 81/95, 22 of

April.

16

Article 19.

Abrogation standard

It is repealed Law No. 21/2000 of August 10, amended by Decree-Law No. 305/2002,

of December 13.

Article 20.

Entry into force

This Law shall come into force 30 days after the date of its publication.

Seen and approved in Council of Ministers of March 6, 2008

The Prime Minister

The Minister of the Presidency

The Minister of Parliamentary Affairs