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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1 MOTION for a RESOLUTION paragraph 25/XI Recommends the Government to change, at the beginning of the parliamentary term, of various aspects of the law of criminal policy under the framework law of Criminal Policy, when you start 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 (cf. Article 10, paragraphs 1 and 2, of law No. 17/2006, of 23 May).

For this reason we opted for recommendation to the Government for the submission of legislative initiative in this sense.

One of the critics singled out in the final report of monitoring of the penal reform, drawn up by the Permanent Observatory of Portuguese Justice, has to do with the law of criminal policy.

This report points out the law of criminal policy as "an example of bad driving legislation, with serious consequences in criminal investigation, leading to the priorities end up being ' dead ' letter" (cfr. page 542).

According to the report, "... to become a viable instrument, of real priority, you can't embed a set so wide where hardly any crimes criminal phenomenon is excluded" (cfr. page 542).

2 This is an aspect to which the PSD had, moreover, prompted, in sequence, by the way, that was defended by heard in the legislative process which led to the adoption of law No. 38/2009, July 20 – the Supreme Judicial Council, Board of Governors of the public prosecutor's Office and the Bar Association –, especially as experienced by comparison with the previous law of criminal policy , the swell of the catalogue of crimes of prevention and research priorities, leading to a situation where virtually everything is a priority, thus depleting the sense of prioritisation.

The effectiveness of a law of this kind depends on the concentration of priorities in certain criminal phenomena, and should be made an effort to reduce the catalogue of crimes a priority.

Shows also adjusted the modification of articles 17 and 21, which affect the performance of the Prosecutor's Office regarding the application of prison sentences and coercive measure actual custody.

Is that these legal commands direct the Prosecutor in order to preferably does not require the application of the measure of pre-trial detention and enforcement of sentences. That is, in cases where the legal hypothesis do glimpse the light of the applicable general rules, by virtue of those specific regulatory, the Prosecutor can only do in last degree or resource.

Articles 17 and 21 of law No. 38/2009, of July 20, appear thus as a reinforcement of the proportionality requirement resulting from the General rules (Constitution and Criminal Codes and criminal procedure). This is not a mere repetition, because in that case such rules would be useless and can be alleviated. More: they have its own field of application, enclosed in those 3 precepts, which means that, in that field of application, different rules (tighter) than the General rules.

Should such be modified by restricting regulatory of the pre-trial detention and enforcement of sentences of imprisonment, which is difficult to understand, especially in the context of the current security crisis.

There is no justification, because, in the opinion of the PSD, remaining in force such directives constraints of the Public Ministry, which only contribute to increasing the climate of insecurity and the feeling of impunity.

Another thing to fix is poor incorporation, in the law of criminal policy, a specific article on the arrest for the crimes committed with a gun and of domestic violence (see article 20).

It would be a mistake to insist that the matter of detention be governed outside of the code of criminal procedure, your own site.

It is recalled in this connection that the Permanent Observatory of Justice, as the PSD has always defended, recommends that "this matter should not be regulated in separate schemes, but only in the CPP" (cfr. page 32 of the supplementary report) To rest, another legislative initiative, the PSD will promote the repeal of the special arrangements of detention provided for by law and in the law on domestic violence by introducing changes that are necessary to the code of criminal procedure.

Finally, and as part of a clear strategy to combat corruption, can not fail to include in the law of criminal policy guidance for the Public Ministry 4 promotes, on counts of corruption, the implementation of the mitigation mechanisms, special dispensation from the penalty and provisional suspension of the process for mischief that collaborate with justice.

We believe that it is not enough to elect a corruption crime priority research. We must also, in addition, to promote the application of mechanisms that benefit the agents cooperating, mischief contributing to enhance the complaints and enhance the effectiveness in combating crime of corruption as well, in accordance with point (b)) of article 156 of the Constitution of the Portuguese Republic and b) of paragraph 1 of article 4 of the rules of procedure, the Assembly of the Republic decides to recommend to the Government :  Which, under article 10 of law No. 17/2006, of 23 May (approves the law Criminal Policy), invoking that's start a new parliamentary term; introduce amendment to law No. 38/2009, of 20 July (Sets the objectives, priorities and criminal policy guidelines for the period of 2009-2011): a) Rethinking with a view to their reduction, the catalogue of crimes of prevention and research priorities; b) Reviewing their articles 17 and 21, in order to eliminate the directives which affect the performance of the Prosecutor's Office with regard to the promotion of the application of the coercive measure pre-trial detention and imprisonment; c) Eliminating your article 20, since the regime of detention must be exclusively regulated in the code of criminal procedure;

5 d) by adding a new article to the Public Ministry, in crimes of corruption, the implementation of the mitigation mechanisms, special dispensation from the penalty and provisional suspension of the process for mischief that collaborate with justice.

São Bento Palace, 3 December 2009 Members of the PSD,