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1 PROPOSAL of law No. 185/X explanatory memorandum this law come comply with the Council of Ministers Resolution No. 45/2007, of 19 March. Thus, recasts the Coordinating Council, strengthening coordination and cooperation of all the criminal police bodies and the sharing of information between them according to the principles of necessity and competence. The proposal also adapting the Organization of criminal investigation to the reforms of the Penal Code and the code of criminal procedure, the Criminal policy framework law and law on Criminal Policy and also the new organic laws of forces and security services. Finally, this Bill receives the lessons of law enforcement for over seven years, introducing the adjustments proved to be necessary. Several modifications are mere legislative updates, with a view to the harmonization of the law of Organization of Criminal investigation with the Criminal and Criminal Procedure Codes. So, have regard to the introduction of the term crime news communication to the public prosecutor for the criminal procedure code and the change of designation of certain types of crimes under the Penal Code. On the other hand, the clarification of the concepts of jurisdiction, specific and reserved. In this sense, the law continues to designate as criminal police bodies jurisdiction the judicial police, the Public Security Police and the National Republican Guard, referred to as criminal police bodies of specific competence all remaining and identifies as criminal police bodies of competence reserved for those to whom the law confers exclusive competence for investigating certain crimes – including expressly in this last category, the judicial police.
To avoid overlaps, which not only involve waste of resources but also cause serious harm to the criminal investigation, introducing standards of resolution of conflicts of jurisdiction. Thus, taking into account that the organs of criminal jurisdiction and criminal police bodies of specific competence can investigate the same crimes — which already has implicated the serious inconvenient of the existence of parallel processes –, welcome the principles of specialization and rationalization in the allocation of available resources. With similar objective 2, the proposal establishes solutions to ensure the distribution of powers. Such solutions require the criminal police bodies receiving the news of crimes and are not responsible for your research, to immediately report such news to the competent criminal police bodies, fitting them just practice the precautionary acts necessary and urgent to ensure the means of evidence. The judicial police is responsible, in exclusivity, to investigate the most serious and complex criminal unlawful. But, at present, the law of Organization of Criminal Investigation allows certain crimes under the competence reserved of the judicial police are investigated by other criminal police bodies. This scheme continues in force. However, caveat-if a significant part of the crimes included in the nuclear reservation of competence of the judicial police, which is guaranteed not to be accepted at any other criminal police body. To ensure that the granting of powers to the principles of impartiality and objectivity, reinforce the powers of the Attorney General of the Republic. This body of autonomous magistrates top public prosecutor, which currently is limited to receive joint proposals of interested criminal police shall have the initiative. So, is the Attorney General of the Republic that fits grant competence to the criminal investigation, after hearing the criminal police bodies involved. However, if the process is already in the process of instruction, their transfer from one to the other criminal police body – which only exceptionally if you admit for the sake of procedural necessity – is the responsibility of the judge.
In addition, densify the criteria governing the granting of powers by the Prosecutor General of the Republic: the existence of simple and obvious evidence, verification of the assumptions of special shapes and more timely process, the circumstances of the case of crime about which concern criminal policy guidelines or the inexigência special performance or mobility of high technical expertise for the investigation. Avoid, in this way, the judicial police lose operability for occupy relatively small importance process. At the opposite pole, also admits that the Attorney General of the Republic grants the judicial police investigation of crimes which do not fall on your reservation. This possibility is already contemplated, but is magnified, reinforcing the powers of the judicial police and by assigning him cases of greater complexity, due to the plurilocalizado nature of conduct 3, the plurality of agents or victims of highly organized form of the practice of the facts, their transnational or international dimension and high technical expertise needs for research. With this scheme ensures that the distribution of competences between the various criminal police bodies fulfill their scope: recognize the judicial police as criminal police body par excellence, the security forces – PSP and GNR-as criminal police bodies are essential for the investigation of a wide range of crimes and various other organisms as criminal police bodies devoted to the investigation of crimes registered in areas or human activities with significant peculiarities. The specific changes introduced in the field of distribution of competences resulting from the hearing of the main criminal police bodies-National Republican Guard, gendarmerie, judicial police and Foreign Service and border – and incorporate the proposals they presented.
Strengthening the powers of the Attorney General of the Republic and facilitating the exercise of their powers, allows the granting of powers to be carried out by order of general nature. Such an order must indicate the types of crimes, their concrete circumstances or the limits of penalties applicable to them. The proposal improves the duty of cooperation between criminal police bodies, regulating the terms of their cooperation within the framework of EUROPOL and INTERPOL. The judicial police, given the experience accumulated and the vocation to investigate international and cross-border crimes, continues to ensure the management of these offices, allowing the access of other criminal police bodies the data that is required for the performance of their powers. Clarified also that the integrated system of criminal information, whose creation is planned from the beginning, in the law of Organization of Criminal investigation, does not correspond to a single database. It is, simply, the sharing of information between criminal police bodies, in accordance with the needs and skills of each of them and always with safeguarding the confidentiality of Justice regimes and State secret. The Secretary General of the internal security system fits to ensure the proper coordination, cooperation and information sharing between the criminal police bodies, without ever accessing processes-crime or the constant elements of these processes and their own databases. 4 on the Coordinating Council of the Criminal Police Bodies are able to participate in all the organs of criminal police – jurisdiction, specific and reserved – and not only, as it was happening, the GNR, PSP and the PJ. I've found that it is impossible to coordinate the activity of criminal police bodies to its default. This body is chaired by the Ministers of Interior and justice, giving continuity to the current model.
Experience shows that this body does not work on a regular basis without an entity to assist the Ministers of Interior and justice in the preparation and conduct of the meetings and ensure the current cooperation, the sharing of information and the provision of means and services to criminal police bodies. Therefore, it is expected that the Secretary-General of the internal security system is part of the Council and to perform such functions. However, does not exercise powers intraprocessuais, and cannot intervene in investigations or specific processes or access to their elements. The Attorney General's Office continues to participate in the Coordinating Council of the Criminal Police Bodies, on its own initiative or by invitation. However, if their intervention is more effective, it is guaranteed that is previously informed of the date and the agenda of meetings. Clarifies that this participation in the Council shall be without prejudice to the autonomy of the public prosecutor in the exercise of the powers conferred on it by the Constitution and by law. These are the only innovations relating to the Coordinating Council of the Criminal Police Bodies. Widens the composition of the organ, but their skills match those laid down since 2000. Finally, to safeguard the principles of legality, independence of the courts and the independence of the Prosecutor determines that neither the Coordinating Council of the Criminal Police Bodies or the Secretary-General may issue directives, instructions or orders on any certain processes. These organs promotes a more effective coordination and closer cooperation between the criminal police bodies, being in the service of the democratic constitutional State. So: under d) of paragraph 1 of article 197 of the Constitution, the Government presents to the Assembly of the Republic the following Bill: 5 chapter I article 1 definition criminal investigation criminal investigation comprises the set of arrangements which, under the criminal procedure law, intended to ascertain the existence of a crime, determine their agents and their responsibility and to discover and collect the evidence as part of the process.
Article 2 the direction of criminal investigation 1-the direction of the investigation is the responsibility of the competent judicial authority at each stage of the process. 2-the judicial authority shall be assisted in the investigation by the criminal police bodies. 3-The criminal police bodies, as soon as you are aware of any crime, communicate the fact to the public prosecutor as soon as possible, which may not exceed 10 days, unless, under the order of generic nature provided for in paragraph 4 of article 270.º of the code of criminal procedure, should immediately start the investigation and, in all cases practice acts necessary and urgent precautionary to ensure the means of evidence. 4-The criminal police bodies act in the process under the direction and on functional dependency of the competent judicial authority, without prejudice to their hierarchical organization. 5-the investigation and judicial authorities delegated acts are performed by employees covered by the criminal police authorities competent for that purpose, within the framework of the technical and tactical autonomy necessary for the effective exercise of those powers. 6-the technical autonomy is based on the use of a set of knowledge and methods of acting and tactical autonomy consists in choosing the time, place and manner suited to the practice of corresponding acts for the performance of legal duties of criminal police bodies. 6 7-criminal police bodies drive and develop by themselves, legally permissible steps, without prejudice of the judicial authority can, at any time, challenge the process, monitor your progress and legality and give specific instructions about performing any actions.
CHAPTER II article 3 criminal police bodies of criminal police Bodies 1-Are organs of criminal jurisdiction: a) the judicial police; (b)) the National Republican Guard; c) the public security police. 2-Have specific competence all other criminal police bodies. 3-the conferral of jurisdiction reserved to a criminal police body depends on legal provision. 4-it is the responsibility of the criminal police bodies: a) Assist judicial authorities in the investigation; b) Develop research and prevention activities within their competence or that they committed by competent judicial authorities.
Article 4 specific competence in the field of criminal investigation 1-the assignment of specific competence meets the principles of specialization and rationalization in the allocation of the resources available to the criminal investigation. 2-Notwithstanding the provisions of paragraphs 4 and 5 of article 7, the organs of criminal jurisdiction shall refrain from initiating or pursuing investigations for crimes that, in particular, are being investigated for criminal police bodies of specific competence. 7 article 5 incompetence in the field of criminal investigation 1-Without prejudice to cases of competence accepted, the criminal police body that has news of the crime and is not responsible for your research can only practice the precautionary acts necessary and urgent to ensure the means of evidence. 2-Without prejudice to cases of competence accepted, if the ongoing investigation will reveal connection to crimes that are not within the jurisdiction of the criminal police body that has initiated the investigation, this refers, to the judicial authority, the process to the competent criminal police body shall, without delay, which shall not exceed 24 hours. 3-in the case referred to in the preceding paragraph, the competent judicial authority can promote cooperation between criminal police bodies involved, through the forms considered suitable, if such it would appear to be useful for the smooth progress of the investigation.
Article 6 powers of the National Republican Guard and the Public Security Police in the field of criminal investigation is the jurisdiction of the National Republican Guard and the Public security police investigation of crimes whose competence is not reserved for other organs of criminal police and the crime whose investigation still to be committed by the competent judicial authority for the direction of the process pursuant to article 8 article 7 powers of the Judicial Police of criminal investigation
1-is the competence of the judicial police investigation of the crimes provided for in the following paragraphs and of the crimes whose investigation is committed by the competent judicial authority for the direction of the process, in accordance with article 8 2-is a matter reserved for the judicial police, cannot be granted to other organs of criminal police, the investigation of the following crimes: the) intentional Crimes or aggravated by result When is the type element 8 death of a person; b) Slavery, kidnapping, abduction and hostage-taking; c) Against the cultural identity and personal integrity and those provided for in the Criminal Law relating to violations of international humanitarian law; d) counterfeiting of currency, securities, values, stamps and other sealed similar values or the relevant passage; and) capture or endangering of transport by air, water, rail or road transport that matches, in the abstract, not less than eight years in prison; f) participating in armed mutiny; g) criminal association; h) Against the security of the State, with the exception of those which respect the electoral process; I) Bleaching; j) trafficking in influence, corruption, embezzlement and economic participation in business; l) terrorist organizations and terrorism; m) Committed against the President of the Republic, the President of the Assembly of the Republic, the Prime Minister, the Presidents of the Supreme courts and the Attorney General of the Republic, in the course of their duties or because of them; n) and abuse of powers Malfeasance practiced by holders of political office; the) Fraud in obtaining or diverting or grant and subsidy fraud in obtaining subsidised credit; p) robbery in credit institutions, of internal revenue offices and post office; q) related the crimes referred to in points (d)), j) and the). 3-is the competence reserved for the judicial police investigation of the following crimes, without prejudice to the provisions of the following article: a) against freedom and sexual self-determination of minors or incapable or that matches, in the abstract, of more than five years in prison; b) theft, damage, theft or receiving mobile thing: i) Has important scientific, artistic or historical value and is in public or private collections or in a place accessible to the public; II) Has special significance for the technological development or economic 9; III) belonging to the cultural heritage, being legally classified or classification; or iv) by its nature, is highly dangerous substance; c) Fraud punishable by imprisonment exceeding five years; d) intentional and damaging administration Insolvency; and) false or counterfeit driver's licenses, booklets and registration of motor vehicles and registration certificates, qualifications and certificates of identification or travel document; f) fire, explosion, release of toxic or asphyxiating gases or radioactive substances, provided that in any case, the fact that part in respect of fraud; g) Pollution with danger; h) Executed with bombs, grenades, materials or explosive devices, firearms and booby-trapped objects, nuclear, chemical or radioactive; I) relating to the traffic in narcotic drugs and psychotropic substances, typed in articles 21, 22, 23, 27 and 28 of Decree-Law No. 15/93, of 22 January, and other anticipated in this Decree be reported or that crop news; (j) economic and financial); l) Tax worth more than (euro) 1.000.000; m) and practiced using computer technology; n) trafficking and falsification of vehicles and arms trafficking; the related crimes) referred to in points (a) to (d)), j) and (m)). 4-it is also the judicial police, without prejudice to the competences of the Foreign and Frontiers Service and of the securities market Commission, the investigation of the following crimes: a) aid to illegal immigration and illegal immigration aid association; b) trafficking in persons; c) Falsification or counterfeit identification or travel document, falsity of testimony, skill, interpretation or translation, related the crimes referred to in (a)) and (b)); d) relating to the securities market. 10 5-in the cases referred to in the preceding paragraph, the criminal investigation is carried out by the criminal police body that has started, for purchasing the news of crime or for determining the competent judicial authority. 6-Caveat-if this article reserved jurisdiction of the Military Judicial Police in criminal investigation matters, pursuant to its Statute, apply the mechanism provided for in paragraph 3 of article 8 article 8 Jurisdiction granted to the criminal investigation 1-The stage of the investigation, the Attorney General of the Republic, criminal police bodies ears involved, authorities accept the investigation of a crime referred to in paragraph 3 of the preceding article to another organ of criminal police provided that this appears, in particular, more suitable to the smooth progress of the investigation and in particular when: there are simple and obvious evidence), within the meaning of the code of criminal procedure; b) Are checked the assumptions of special forms of procedure, under the code of criminal procedure; c) in the case of crime about which focus on the small crime, under the law of Criminal Policy in force; or (d)) the research does not require performance mobility or special means of high technical expertise. 2 it shall not apply the provisions of the preceding paragraph when: a) the investigation assume particular complexity under the plurilocalizado nature of the conduct or of plurality of agents or the victims; (b)) the facts have been committed to highly organised or transnational or international dimension whatsoever; or c) the investigation requires, so constant, knowledge or means of high technical expertise. 3-on the stage of the investigation, the Attorney General of the Republic, criminal police bodies ears involved, grant the judicial police investigation of crime is not provided for in the preceding article when you check any of the circumstances referred to in paragraph 1 (a) of the preceding paragraph. 4-the acceptance referred to in paragraphs 1 and 3 may be made by order of generic nature of the Attorney-General of the Republic indicating the types of crimes, their specific circumstances 11 or the limits of penalties applicable to them. 5-in the cases referred to in paragraphs 4 and 5 of the preceding article, the Attorney General of the Republic, criminal police bodies ears involved, grant research the different criminal police body that has started among those referred to in paragraph 4 of the same article, where this appears most suitable concrete on the progress of the investigation. 6-delegation from the Attorney General's Office, the District Attorneys General can proceed on a case-by-case acceptance provided for in paragraphs 1, 3 and 5. 7-at the stage of education, the criminal police body which ensured the investigation during the investigation, except where the judge is satisfied that such is not, in particular, the most suitable for the good progress of the investigation.
Article 9 negative Conflicts of jurisdiction over criminal investigation if two or more criminal police bodies if they consider incompetent to the criminal investigation of the same crime, the conflict is settled by the competent judicial authority at each stage of the process.
Article 10 Obligation of cooperation 1-The criminal police bodies cooperate with each other in the performance of their duties. 2-Notwithstanding the provisions of article 5, the criminal police bodies shall communicate to the competent authority at the earliest opportunity, which may not exceed 24 hours, the facts of which they are aware concerning preparation and execution for crimes whose investigation are competent, just being able to practice until his intervention, the protective and urgent to prevent acts to its consummation and ensure the means of evidence. 3-the unique process ID number is assigned by the competent criminal police for investigation.
12 article 11 criminal information integrated system 1-the duty of cooperation provided for in the preceding article is guaranteed, inter alia, for an integrated system of criminal information to ensure the sharing of information between criminal police bodies, in accordance with the principles of necessity and competence, without prejudice to the legal regimes of the secret of Justice and the State secret. 2-access to information through the integrated system of criminal information is regulated by access levels, within each organ of criminal police. 3-sharing and access to information referred to in the preceding paragraphs are regulated by decree-law.
Article 12 International Cooperation
1-it is up to the judicial police ensure the functioning of EUROPOL national unit and the National INTERPOL Office. 2-the National Republican Guard, the Public Security Police and the service of foreigners and borders, through permanent liaison officers, the unit and the Office referred to in the preceding paragraph. 3-the judicial police, the National Republican Guard, the Public Security Police and the service of foreigners and borders, through permanent liaison officers, the National Liaison Offices to work with EUROPOL and INTERPOL. 4-all the criminal police bodies have access to information provided by EUROPOL national unit, National INTERPOL Office and by national Liaison Offices to work with EUROPOL and INTERPOL, within their respective competences.
CHAPTER III Coordination of criminal police article 13 13 1 Coordinating Council-the Coordinating Council of the Criminal Police Bodies are chaired by government officials responsible for the areas of Justice and internal administration and his part: a) the Secretary General of the Integrated System of internal security; b) Commander General of the National Republican Guard and the national directors of the Public Security Police, the judicial police and the service of foreigners and borders; c) maximum leaders of criminal police bodies of specific competence; d) the Director-General of prison services. 2-the Council can meet with the participation of the members referred to in (a)), b) and d) of the preceding paragraph or, where the nature of the material justifies it, also with the participation of the other. 3-the Secretary General of the internal security system assists the Presidency in the preparation and conduct of meetings. 4-Participate in the meetings of the Council the Member of Government responsible for coordinating drug policy whenever they're scheduled matters related to this area. 5-on its own initiative whenever they see fit, or at the invitation of the Presidency, can attend the meetings of the Council the President of the Superior Council of the judiciary and the Attorney General of the Republic. 6-for the purposes of the preceding paragraph, the President of the Superior Council of the judiciary and the Attorney General of the Republic are informed of the completion dates of meetings and their agendas. 7-the participation of the Attorney General of the Republic in the Council shall be without prejudice to the autonomy of the public prosecutor in the exercise of the powers conferred on it by the Constitution and by law. 8-the Presidency, when it deems it appropriate, may invite to participate in the meetings other entities with special responsibilities in the prevention and suppression of crime or in the research and production of information relevant to homeland security. 14 article 14 responsibilities of Coordinating Council 1-competes to the Coordinating Council of the Criminal Police Bodies: the generic guidelines) to ensure coordination between the criminal police bodies; b) ensure appropriate coadjuvação of the judicial authorities by the criminal police bodies; c) Inform the Superior Council of the Magistracy on deliberations likely to overlook for the exercise of this competence; d) request that the Attorney General of the Republic the adoption, within their respective competences, the measures that are necessary to an effective criminal investigation and prevention; and) Appreciate statistical information on a regular basis on the actions of prevention and criminal investigation; f) Define work methodologies and management actions to promote better coordination and more effective action of criminal police in the various hierarchical levels. 2-the Coordinating Council cannot issue orders, instructions or directives on certain processes.
Article 15 coordination system 1-the coordination of criminal police bodies is ensured by the Secretary-General of the internal security system, in accordance with the General guidelines issued by the Coordinating Council of the Criminal Police Bodies and without prejudice to the competencies of Prosecutors. 2-it is the Secretary-General, within the framework of the coordination referred to in paragraph 1 and ears of maximum leaders of criminal police or, in different hierarchical levels or territorial units, the criminal police authorities or agents that they designate: a) ensure that compliance with the distribution of powers between organs of 15 criminal police, in order to avoid conflicts; b) Ensure the sharing of facilities and support services, according to the needs of each organ of criminal police; c) Ensure the functioning and the access of all the criminal police bodies to integrated information system, according to their needs and skills.
3-the Secretary-General cannot issue orders, instructions or directives on certain processes. 4-the Secretary-General cannot access specific processes, their constant elements or to information integrated system of criminal information.
CHAPTER IV final provisions article 16 lawsuits pending The new rules on distribution of powers for criminal investigations between the criminal police bodies do not apply to cases pending at the date of entry into force of this law.
Article 17 personnel themselves Schemes the status, powers and form of personnel recruitment and supervisors of criminal jurisdiction are laid down in the respective diplomas.
Article 18 Decree-Law No. 81/95, of April 22 the conditions laid down in this law shall be without prejudice to the provisions of Decree-Law No. 81/95, of 22 April. 16 Article 19 set Standard is revoked the law No. 21/2000, 10 of August, as amended by Decree-Law No. 305/2002, of 13 December.
Article 20 entry into force this law shall enter into force 30 days after the date of its publication.
Seen and approved by the Council of Ministers of 6 March 2008 the Prime Minister, the Minister of Parliamentary Affairs Minister Presidency
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