Key Benefits:
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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,