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Recommends To The Government To Change, At The Beginning Of The Parliamentary Term, Of Various Aspects Of The Law Of Criminal Policy.

Original Language Title: Recomenda ao Governo a alteração, neste início de legislatura, de diversos aspectos da lei de política criminal.

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DRAFT RESOLUTION NO. 25 /XI

It recommends the Government to amend, at this beginning of the legislature, of

various aspects of the criminal policy law

In the terms of the Criminal Policy Framework Act, when one starts a

legislature, the Assembly of the Republic may introduce amendments to the law of

criminal policy. The right of initiative is, however, reserved for the Government

(cfr. Article 10º, paragraph 1 and 2, of Law No. 17/2006 of May 23).

For that reason it has opted for the route of the recommendation to the Government for the

presentation of legislative initiative in this direction.

One of the critical aspects pointed out in the final monitoring report of the

penal reform, drawn up by the Permanent Observatory of Justice

Portuguese, it has to do with the criminal policy law.

That report points out the criminal policy law as " an example of bad

legislative driving, with serious consequences in the criminal investigation,

leading to the priorities ending up being "dead lyrics" " (cfr. page 542).

According to the report, " ... to become in an enforceable instrument, de

true priority, cannot incorporate such a vast set of crimes from

where hardly any criminal phenomenon is excluded " (cfr. page 542).

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This is an aspect for which the PSD already had, in the rest, alerted, in the sequence,

incidentally, of what has been advocated by the entities heard in the legislative process that

led to the passage of Law No. 38/2009, of July 20-Higher Council

of the Magistrature, Superior Council of the Public Prosecutor's Office and the Order of the

Lawyers-mainly because it has seen itself, by comparison with the previous law

of criminal policy, by avolumation of the catalogue of the prevention crimes and

priority research, which leads to a situation in which practically

everything is priority, thus emptying the useful sense of the definition of the

priorities.

The effectiveness of a law of this nature depends on the concentration of priorities

on determined criminal phenomena, so an effort should be made

in the direction of reducing the catalogue of priority crimes.

It is also shown to be adjusted to the modification of Articles 17º and 21º, which

condition the performance of the Public Prosecutor's Office with regard to the application of

effective prison sentences and the measure of coaction preventive detention.

It is that the aforementioned legal commands drive the Public Prosecutor's Office in the sense of

preferentially not to apply for the application of the prison coating measure

preventive and effective prison sentences. That is, in cases where if

glimpse legal hypothesis of doing so in the light of the applicable general rules, by force

of those specific normatives, the Public Prosecutor will only be able to do so in

last degree or resource.

Articles 17º and 21º of Law No. 38/2009 of July 20 appear, thus,

as a reinforcement of the requirement of proportionality resulting from the rules

general (Constitution and Penal Codes and of Criminal Procedure). It's not about

a mere repetition, for in that case such norms would be worthless and carect

of meaning. More: they have an own field of application, delimited in those

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precepts, which means that in that precise field of application, vigoram

different rules (tighter) than the general rules.

They must such normatives be modified, by restricting in overlap to

application of preventive arrest and effective prison sentences, which is not

understands, above all, in the current context of security crisis.

Nothing justifies, for, in the understanding of the PSD, that they remain in force such

conditioner directives of the performance of the Public Prosecutor's Office, which only contribute

for the rise in the climate of insecurity and the feeling of impunity.

Another aspect to be correcting relates to the incorrect incorporation, in the law of

criminal policy, of a specific article on detention for the crimes

committed with weapon and domestic violence (cfr. article 20º).

It appears to be a mistake to insist that the matter of detention is regulated outside the

Code of Criminal Procedure, its own place of regulation.

It is recalled, in this connection, that the Permanent Observatory of Justice, à

similarity of what the PSD has maintained since always, recommends that " this

matter should not be regulated in avulous regimes, but only in the CPP " (cfr.

page 32 of the supplementary report)

In the rest, in another legislative initiative, the PSD will promote the repeal of the

special detention regimes provided for in the Arms Act and the Law of

Domestic Violence by introducing the changes that appear necessary

to the Code of Criminal Procedure.

Finally, and within the framework of a clear strategy to combat corruption, not

may fail to include itself in the criminal policy law guidance for the

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Prosecutor's Office prosecuted, in the crimes of corruption, the application of the

special mitigation mechanisms, dispensation of the penalty and provisional suspension

of the process with respect to corruptors who collaborate with Justice.

We believe that it is not enough to elect corruption as a crime of inquiry

priority. It must also, in complement, foster the application of the

mechanisms that benefit the collaborating corrupting agents, so if

contributing to potentiating the complaints and enhancing effectiveness in combating the

crime of corruption

Thus, in accordance with Article 156 (b) of the Constitution of the Republic

Portuguese and point (b) of Rule 4 (1) of the Rules, the Assembly of

Republic resolves to recommend to the Government:

Whereas, under the provisions of Article 10º of Law No. 17/2006, 23 of

May (Approves the Criminal Policy Framework Act), invoking that if it is

initiating a new legislature; present proposal for amendment to the Law n.

38/2009, of July 20 (Defines the objectives, priorities and guidelines

of criminal policy for the biennium of 2009-2011 ) :

a) Rethinking, with a view to its reduction, the catalogue of the crimes of

priority prevention and research;

b) by reviewing your articles 17º and 21º, in the sense of eliminating the

directives that condition the performance of the Public Prosecutor's Office in the

respect to the promotion of the application of the coaction measure

preventive arrest and effective prison sentence;

c) Eliminating your Article 20º, for that the regime of detention shall

be exclusively regulated in the Code of Criminal Procedure;

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d) Adding a new article for the Public Prosecutor's Office to promote,

in the crimes of corruption, the application of the mechanisms of

special mitigation, dispensation of the sentence and provisional suspension of the

process regarding corruptors who collaborate with the

Justice.

Palace of Saint Benedict, December 3, 2009

The Deputies of the PSD,