Parliamentary Group

Assembly of the Republic-Palace of S. Bento-1249-068 Lisbon-Phone: 21391 9233-Fax: 21391 7456 Email: gpcds@pp. parlamento.pt-http://cdsnoparlamento.pp. parliamento.pt

DRAFT LAW NO. 173 /XI

Amendment to the Code of Criminal Procedure

1-A revision of the Criminal Procedure Code of 2007 has been criticized by

almost all judicial operators and security forces, by containing

changes that potentiate a sense of impunity, either by part

of those who commit crimes want from society in general, with influence

on the rise in crime, particularly the most violent, that the country

has been registering in recent times. In effect, the last two years have

evidenced an increase in cases of grupal crime, assaults on

banks, fuel supply stations, transport vehicles

of values, urriveseries, car thefts with recourse to the

"carjacking" or from aggressions to elements of the security forces.

It is a fact that the biggest aggravation of these indices has been on record

precisely after the approval of various amendments to the Criminal Code and the

Code of Criminal Procedure, as the CDS-PP has denounced, so

as representatives of judicial operators, associations and the

unions that establish even a causal link between those

reforms and the aggravation of crime:

2

-To the Lord Prosecutor-General of the Republic, " (...) the hyper-guaranteed

awarded to the defendants collides with the right of the victims, with the prestige

of the institutions and makes it difficult and often prevents effective combat to

complex crime " ;

-A recent study by the Syndicate of the Magistrates of the Public Ministry

(SMMP), establishes a cause-and-effect link between this reform of

2007, the reduction in the number of inmates and the increase in crime

violent in Portugal, by " (...) convey to the society in general and to the

criminal world in particular unequivocal sign of system branding

penal " ;

-The President of the Judges ' Association For Citizenship upfront that " (...) the

balance of this criminal reform is catastrophic. It's not just having to do with the weather

of insecurity it has generated, but with the damage that crime is

to provoke " .

2-On the initiative of the Government, a protocol has been carried out with the

Permanent Observatory of Portuguese Justice (OPJP) with a view to the

elaboration of a study on the implementation and impact of the reform

penal, whose Reports have been already presented and are of the knowledge

public.

More, at the request of the Ministry of Justice, the OPJP drew up a Report

Supplementary, in which it condensed the legislative measures it considers

3

of more urgent implementation. It is to highlight, in supmule, the following

proposals of the said Report:

-Widening the possibility of detention outside of flagrante delicto in the

situations where there is imminent danger of continuation of the activity

criminal;

-Return to the previous regime of possibility of application of imprisonment

preemptive to all the doleful crimes punishable by imprisonment of

maximum of more than 3 years;

-Enlargement of the possibility of commencement of the hearing (in proceedings

summary) up to fifteen days after the arrest in flagrante delicto-when the

argued do not be held-, whenever the Ministry considers to be

necessary to undertake essential probatory representations to substantiate

the charge;

Now, these OPJP proposals correspond to legislative initiatives that the

CDS-PP had already presented in the legislature that ora finishes, and that comes

resume in the present.

3-In what concerns the matter of detention in flagrante delicto and out of

Flagrant offence, the revision of the Code of Criminal Procedure limited the

situations of legal admissibility from detention outside of flagrante delicto, e,

well thus, those of holding the detention in the following flagrant offence,

4

through the introduction of a new requirement of the formulation of a judgment of

prognosis as to the voluntary non-presentation of the individual to be detaining or

detained.

Legislative innovation, we are in believe, has been aimed at obstinate to judicial practice

that he understood necessary the detention of the accused to submit it to the first

judicial interrogation of defendants detained, with a view to the application of measure

of coaction, by application of the arts. 41º, 194º/2, 254º/1, a), 257º, 268º/1, a)

and (b) of the Code of Criminal Procedure.

But, the truth is that the immediate or prior detention to the knowledge of that

possibility by the indictment is the only guarantee of effectiveness of the application of

a measure of coaction that has to be applied urgently (v.g., nos

cases of domestic violence and ill-treatment, with the purpose of driving away

of immediate the aggressor of the victims).

This being the case, a change to the arts is proposed. 257º/1 and 385º/1 that

respect these purposes and, simultaneously, be consistent with nature

instrumental-wary of the detention, provided for in the art. 28º/1 of the Constitution and

with the cautionary purposes of art. 204º of the Code of Criminal Procedure.

4-In respect of the assumptions of application of preventive detention, the

CDS/PP (through the Draft Law No. 368 /X) had proposed that this

could be applied to cases in which there were " strong evidence of practice

of felony felony punishable with prison sentence of maximum more than three

5

years " . This position, however, did not obtain maturity, having the new law

reserved the application of preventive detention for those cases in which

were in cause crimes punishable with a maximum penalty of more than 5

years.

The CDS-PP has warned of the blatant error of the decrease in cases to which by

viewed from the penalties considered-as a rule, crimes punished with penalty of

imprisonment with a maximum of more than 5 years-it would be possible to apply-

if pretrial detention and proposed a new legislative initiative on this

matter-the Draft Law No. 587 /X-which would come to be rejected.

The CDS-PP understands, so even, it is imperative to reedit some

of the solutions expressed in the Draft Law No 368 /X previously

discussed, specifically decreasing the limit of the 5 years for the 3 years

of the crimes liable to justify the application of coaction measurement of the

preventive detention, under penalty of good part of gerst crime

feeling of insecurity gets excluded. We refer to crimes such as

rift participation, the simple bodily offenses, the simple theft or the

theft of vehicle use, just to give a few examples.

Incidentally, in the statement of reasons for the Proposal for Law No. 222 / X1, in which the

Government intended to focus legislative response to an outbreak of

violent crime, the following can read: " For this reason, the present

law provides for (...) the applicability of preventive detention in all crimes of

1 That would come to give rise to Law No. 17/2009 of May 6, which " Proceed to the second amendment to the Law No.

5/2006, of February 23, which approves the new legal regime of the weapons and their ammunition ".

6

detention of prohibited weapon and of crimes committed with recourse to weapon, the

which corresponds to prison sentence whose maximum limit is more than three

years " .

That is, in a subsequent amendment to the so-called Weapons Act, it took over

the error in the legislative process leading to the revision of the Code of Procedure

Penal, but ignored all too many crimes that, justifying

equivalent concerns but may not be practiced with recourse to

firearms, would be excluded from that possibility.

With the present initiative, the CDS-PP corrects this error, but caveat

expressly ( quod abundat non nocet ...) the applicability of regimes

special prosecutions (as is the case with the law of arms and the new regime of the

combating domestic violence) in the aim of preventing ambiguities

interpretative.

5-In what concerne to the summary process, and with the purpose of making the

punishment temporally as close as possible to the practice of crime, in

name of justice and swiftness, and without prejudice to the maintenance of rights

constitutionally guaranteed to the procedural subjects, suggest the

following enhancements and changes:

a) Enlargement of the cast of crimes likely to be plotted in

summary process, permitting the intervention of the collective court

also in this form of process. In the understanding of the CDS-PP, nothing obstinates

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that extends this possibility, given that the requirement of the

detention in flagrante delicto, allows the Public Prosecutor to perform

inquiry quickly (being certain also that the use of the process

summary will not be mandatory, so the Public Prosecutor's Office, when

understand that if it requires a more time-consuming investigation, it will not do so) and if

they assure the defendants of all defence guarantees. The enlargement of the

possibility of recourse to this form of process, we are in believe,

will allow to quickly solve many more processes, the effects being

general of the feathers much more visible to the community, which, in the last

analysis, will make them much more effective;

(b) Extension of the deadline for commencement of trial in summary proceedings

and establishment of an indicative deadline for completion of the same

trial, not by admitting a modification of the form of the proceedings in

case of overtaking of this same time. This is the indicated form, in

our opinion, to prevent an initial delay in the tramway from the

process leads to the shipment of the autos to another form of process of

greater complexity and, therefore, more protracted tramping;

c) Guarantee that the possible extension of the initial deadline for submission

the trial depends solely on the decision of the holder of the criminal action,

but limited to cases in which it appears imperious to carry out representations

complimentary probats;

d) Correction of a lapse verified in the last criminal procedural reform in the

Respect to paragraph 3 of Article 389º;

e) Simplification of the procedure inherent in the drafting of the sentence;

8

(f) Restructuring of the filing mechanism or interim suspension

of the process in process seat in summary form (Article 384º),

likewise here extending such a mechanism in the moulds provided for the

common process, mutatis mutandis ;

g) Change of the appeal regime of the final decision in the form under form

summary, as well as the indemnible damage.

6-But it is not just here that there are innovative legislative proposals. The

CDS-PP aims to still present changes in process headquarters

short and from the summary process, which will follow the suggestions closely

formulated by the various judicial officers, specifically, the Union

of the Magistrates of the Public Ministry.

6.1-A abridged form of process had in view, equally, enabling

a more speedy and de-formalized tramway of some processes

criminals. However, the legal design of this form of process generated some

doubts in the field of the respective practical use, doubts those that are

reason for the present legislative clarification, translated into the following

proposed changes:

a) Amendment of paragraph 1 of Article 391º-A;

(b) Extending the period of inquiry and prosecution of ninety to one hundred and

twenty days;

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c) Clarification that the charge is not notified, being communicated to the

argued only along with the marking of the date for trial,

and this shall be carried out within a legally fixed time limit;

6.2-As for the sumptiest process, and with a view to removing all the

obvious to the practical operationality of this form of process, propose the

following interventions:

a) Clarification within the scope of Article 392 of the Code of Criminal Procedure, of the

admissibility of the application of this form of process whenever it is

applicable any non-custodist penalty of freedom by the practice of crimes

punishable with penalty of maximum limit imprisonment of not more than five years,

even in case of a contest, v.g. , when the application of

a suspended prison sentence in the respective implementation;

b) Clarification of the possibility of application of ancillary feathers in this

form of process;

c) Clarification of the need for there to always be enquiries-

at least, the judicial interrogation of the accused;

d) Elimination of the possibility of instruction in summative proceedings;

e) Consagration of the possibility for the Public Prosecutor's Office to propose a

amount indemnified to be arbitrated officiously by the court in

trial, whenever there is manifestation of willingness to deduction of

request capable on the part of the aggrieved and there is admission by the accused of the facts

typical imputed-as a consequence, Article 393º is changed, passing the

refer to Article 394º (2) (b), and not for Article 82º-A;

10

f) Consagration of the possibility for the accused to be notified,

simultaneously, that you will be able to agree to the application of the

Prosecutor's Office, and of which, by not agreeing, the process will be remitted

for form of abbreviated process;

g) Forection, in consequence, that if the judge rejects or the accused is

opuser to the Public Prosecutor's application, the process will follow the form

shortened.

7-Lastly, it is to be mentioned that we take advantage to change others

provisions of the Code of Criminal Procedure, formulating the following

proposals:

-Guarantee of the possibility of the re-evaluation in resort seat, of the judgment that

has determined the change of coaction measures, to the extent that, being

in cause important aspects related to the possibility of the

continuation of criminal activity, the danger of escape, or the possibility

of the destruction of evidence, only to mention aspects to be considered in the

weighting of preventive imprisonment, the guarantee of an increased judgement about

of the modification of the measure, it appears to elementary common sense;

-Introduction of a new provision that determines that the judge should

apply the coaction measure proposed by the Public Prosecutor's Office (case

understand appropriate) within the maximum period of 5 days after the promotion;

-In the matter of densification of the status of the assistant, it facilitates the

11

assumptions of its constitution and widens the respective right to

knowing the decisions regarding the procedural representations by you

triggered, as well as the qualification of the form of the process, the term of the

survey and the most relevant vicissitudes that accompany it;

-In the seat of valorisation of the role of the victim, they shall be given rights, with

counterpart in specific duties of information on modalities of

advice and support, through the introduction of a new article, from

remarkable meaning in the recognition of the importance of the victim in the

criminal proceedings, even when this if there is no formally constituted

as an assistant.

By the exposed, the undersigned Deputies present the following

draft law:

Article 1.

Amendments to the Code of Criminal Procedure

Articles 68º, 69º, 202º, 219º, 381º, 382º, 383º, 384º, 385º, 386º, 386º,

387º, 388º, 389º, 390º, 391º, 391º-A, 391º-B, 391º-C, 391º-D, 391º-E,

392º, 393º, 394º, 395º, 396º, 397º and 398º of the Code of Criminal Procedure,

approved by Decree-Law No. 78/87 of February 17 and amended by the

Decrees-Law n. the

387-E/87, of December 29, and 212/89, of June 30,

by Law No. 57/91, of August 13, by the Decrees-Law n. the

423/91, from 30

of October, 343/93, of October 1, and 317/95, of November 28, by the

12

Laws n. the

59/98, of August 25, 3/99, of January 13, and 7/2000, of 27 of

May, by the Decree-Law No. 320-C/2000 of December 15, by the Leis n. the

30-E/2000, of December 20, and 52/2003, of August 22, by the Decree-

Law No. 324/2003 of December 27, by Law No. 48/2007, 28 of

August, and by Law No. 52/2008, of August 28, go on to have the following

wording:

" Article 68.

[...]

1-Can constitute assistants in the criminal case, procuring condition

of a procedural subject, in addition to the persons and entities to whom special laws

confer that right:

a) (...);

b) (...);

c) (...);

d) In the event that the offence is less than 16 years old or for another reason

incapable, the legal representative and, in the absence of it, the persons indicated in the

previous subparagraph, according to the order referred to therein, or, in the absence of the

too much, the entity or institution with responsibilities of

protection, tutelary or educational, when the same has been

judicially entrusted with your responsibility or guard, save if

13

any of them have been engaged in the crime;

e) (...).

2-.....

3-.....

4-.....

5-.....

Article 69.

[...]

1-.....

2-.....:

a) Intervir in the survey and the instruction, offering evidence and

requiring the representations that appear necessary, to know the

dispatches that on such initiatives to relay, as well as to know,

in good time, the statement of reasons and decisions regarding the

qualification of the form of the process, deadlines of its duration, suspension

and archiving;

b) (...);

14

c) Interusing appeal of the decisions affecting them, even if the

Public prosecutor's office has not done so, available, for the purpose of

access to the necessary procedural elements, without prejudice to the

regime applicable to the secret of justice.

Article 202.

[...]

1-If it is found to be manifestly inappropriate or insufficient, in the case, the

measures referred to in the preceding Articles, and without prejudice to the provisions of

special regimes, the judge may impose on the accused the remand

when:

a) Houthis strong evidence of punishable felony practice punishable

of imprisonment of a maximum of more than three years; or

b) If it is treated as a person who has penetrated or stays

irregularly on national territory, or against which it is in

course extradition process or expulsion.

2-(...).

Article 219º

[...]

Of the decision that applies, replace or maintain measures provided for in the

present title, it is up to appeal to be brought by the accused or by the Ministry

15

Public, to be judging within a maximum of 30 days from the time when

the autos are received.

Article 257º

[...]

1-Out of flagrant offence, detention can only be carried out, by

warrant from the judge or, in cases where it is admissible preventive arrest, of the

Prosecutor's Office, when there are founded reasons to consider that the

targeted if it would not present spontaneously before judicial authority

within the period set to be fixed, or when it occurs, in concrete,

any of the situations provided for in Article 204º, which only the detention

allow to acautelate.

2-Criminal police authorities may also order the detention

out of flagrante delicto, on their own initiative, when:

a) If it is a case in which preventive imprisonment is admissible;

b) If you check, in concrete, any of the situations provided for in the article

204º, that only the detention allows to acautelate; and

c) It is not possible, given the situation of urgency and danger in the delay,

wait for the intervention of the judicial authority.

Article 381º

[...]

16

They are adjudicated in summary proceedings those arrested in flagrante delicto, in the

terms of Articles 255º and 256º:

a) When the detention has proceeded any judicial authority or

police entity; or

b) Where the detention has been carried out by another person and, within a time limit

which does not exceed two hours, the detainee has been handed over to one of the

entities referred to in the preceding paragraph, having this written self-summary of the

delivery.

Article 382º

[...]

1-A judicial authority, if it is not the Public Prosecutor's Office, or the entity

officer who have proceeded to arrest or to whom they have been carried out

the delivery of the detainee, present-in, immediately or in the shortest term

possible, to the Public Prosecutor's Office with the competent court for the

trial.

2-If you have reason to believe that the trial hearing cannot be held

start within forty-eight hours after the arrest, the Ministry

Public, without prejudice to the provisions of Article 385º-A, proceeds to

interrogation of the accused or presents him to the judge for the purpose of application

of a coaction or equity guarantee measure.

Article 383º

[...]

17

1-A judicial authority or the police entity that have proceeded to

detention notify verbally, in the act itself, the witnesses of the

occurrence, in number not more than five, and the offending, if its

presence is useful, to appear before the Public Prosecutor's Office with the

competent court for the trial.

2-In the same act the accused is informed that he / she can present to the

Public prosecutor's office with the court competent for the trial until

five witnesses, being these, if present, verbally notified.

Article 384º

[...]

It is correspondingly applicable in summary proceedings the provisions of

articles 281º and 282º, up to the closing of the hearing, on the initiative of the

court or the application of the Public Prosecutor's Office, the accused or the

assistant.

Article 385.

[...]

1-If the submission to the Public Prosecutor's Office does not take place in an act

followed by the detention in flagrante delicto, the accused only remains detained if

there is reason to believe that it will not present itself voluntarily before the

judicial authority at the time it is fixed or when

18

check, in concrete, some of the situations provided for in Article 204º that

only the maintenance of detention allows to acautelate.

2-In any case, the accused is immediately released when if

conclude that it will not be able to be presented to judge within forty eight

hours.

3-In the case of release in the terms of the preceding paragraphs, the organ of

criminal police subject to the defendants ' term of identity and residence and

notifies you to appear before the Public Prosecutor's Office, on the day and time that

are assigned, to be submitted:

a) The hearing of judgment in summary proceedings, with the warning of

that this one will perform, even if it does not compare, being represented by

defender; or

b) The first judicial interrogation and possible application of measure of

coating or of equity guarantee.

Article 386º

[...]

1-The judgment in summary proceedings regulates the provisions of this

Code relating to the trial in common process, with modifications

constants of this title.

2-The acts and terms of the trial are reduced to a minimum

indispensable to the knowledge and good decision of the cause.

3-Should the competent court for the trial be the collective court,

the Public Prosecutor's Office or the defendants will be able to apply to the court not

19

application of the limit of witnesses provided for in Article 383º, as soon as

raging, in the application they submit, the witnesses who wish

produce.

Article 387.

[...]

1-The start of the trial hearing will take place on the day when the

Prosecutor's Office to present the autos in the competent court or, in case

of impossibility of agenda, on the date and time set by the court, inside

of the five later days.

2-If the hearing is postponed or interrupted, the judge warns the defendants '

that this will be held on the designated date and time, even if it does not compare,

case in which it will be represented by defender.

3-If witnesses are missing that the Public Prosecutor's Office, the Assistant or

the accused do not prescind, the hearing is not postponed, and the respondents being asked

witnesses present by the order indicated in points (b) and (c) of the article

341., without prejudice to the possibility of changing the rol presented.

4-The faltose witnesses will be notified to appear in new

date to be fixed by the court, which may since soon determine the respective

comparency under detention, should you have reason to believe that they will not

voluntarily.

5-There may also be interruption of the hearing for completion of

probatory representations required by any procedural subject or

ordered officiously by the Court.

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6-The trial is expected to be completed within the maximum period of one hundred and twenty

days counted on the date of the respective start.

Article 388.

[...]

In summary process, people with legitimacy for this can

constitute as assistants or intervene as civil parties if so

request, even if only verbally, at the beginning of the hearing.

Article 389º

[...]

1-The Public Prosecutor's Office may replace the submission of the charge sheet by the

reading of the news self from the authority that has proceeded to detention,

when this contains all the facts imputed to the accused.

2-A charge, the contestation, the claim for damages and its

contestation, when verbally presented, are recorded by supmula

in the minutes, without prejudice to the possibility of the respective full consignment

if presented in electronic support, or from your annexation to the minutes if

presented in physical support.

3-A presentation of the charge and the contestation replace the

introductory exhibitions referred to in Article 339º.

4-Finda the production of the proof, the word is granted, for one time, to the

Prosecutor's Office, the representatives of the assistant and the civil parties and the

21

defender, which they can use from it for a maximum of thirty minutes,

imextendable.

5-A sentence, to be delivered immediately, shall be limited to the absolutely

necessary for their respective understanding and reasons, and may

indications aimed at the identification of the accused, the assistant or the parties

civilians, as well as the enumeration of the proved and unproven facts, be

made, in whole or in part, by remission to the news self, to the

charge or for any other procedural piece joins the autos.

Article 390.

[...]

1-The court only refers the autos to the Public Prosecutor's Office for tramping under

another procedural form when the inadmissibility, in the case, of the

summary process.

2-If, after received the autos, the Public Prosecutor's Office deduct

prosecution in common process, in abridged process, or require the

application of penalty or non-custodial security measure of freedom in

summary process, the competent court for them to know will be

the one to whom initially the autos were distributed for trial in the

summary form.

Article 391.

[...]

22

In summary proceedings is only admissible appeal of sentence or order

that puser the term to the process, as well as of the one who orders the shipment of the

autos to the Public Prosecutor's Office for tramping in another procedural form,

feature this with suspensive effect.

Article 391-The

[...]

1-In case of a crime punishable with penalty of fine or with penalty of imprisonment

not more than 5 years, and there is simple and evident evidence that it results

sufficient evidence to have verified the crime and who its agent was,

the Public Prosecutor's Office, after carrying out summary inquiry, deduct prosecution for

trial in abbreviated proceedings.

2-Are still adjudicated in abbreviated proceedings, in the terms of the number

previous, crimes punishable with maximum upper limit prison sentence

a 5 years, even in the event of an infringement procedure, when the Ministry

Public, in the prosecution, understand that it should not be applied, in concrete,

prison term of more than 5 years, as well as the cases provided for in the article

396º, paragraph 4, and in Article 398º, paragraphs 1 and 2.

3-For the purposes of the provisions of paragraph 1, it shall be deemed to be that there is simple evidence

and evident when, inter alia:

a) The agent has been held in flagrante delicto and the trial cannot

take place in the form of summary process;

b) The proof is essentially documentary and can be collected on time

intended for the deduction of the charge; or

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c) The proof rests on presential witnesses with uniform version of the

facts.

Article 391 -B

[...]

1-A prosecution of the Public Prosecutor's Office shall contain the elements to which

refers to Article 283º (3), the identification of the defendants and the narration of the

facts may be carried out, in whole or in part, by remission to the self

of news or for the complaint.

2-A The charge is deducted within 120 days of the:

(a) Acquisition of the news of the crime, pursuant to the provisions of Article 241º,

treating themselves to public crime; or

b) Submission of complaint, in the remaining cases.

3-If the procedure depends on particular charge, the prosecution of the

Prosecutor's Office takes place after deducting charge under the terms of the

article 285º.

4-A The charge is not notified.

Article 391º-C

[...]

1-Received the autos, the judge knows of the issues referred to in the

article 311º.

24

2-If it does not reject the charge, the judge designates day for hearing, with

precedence over judgments in common process, without prejudice to the

priority to confer on urgent processes. This is fixed for the date more

next possible, so that between it and the day that the autos were

received do not elapse more than 30 days.

Article 391º-D

[...]

1-The trial in abridged proceedings shall be governed by the provisions of this

Code relating to the trial in common process, with modifications

constants of this title.

2-The acts and terms of the trial are reduced to a minimum

indispensable to the knowledge and good decision of the cause.

3-Finda the production of the proof, is granted the word to the Ministry

Public, the representatives of the assistant and the civil parties and the defender,

which you can use from it for a maximum of thirty minutes, extensions

if necessary and so is required. It is admitted replica for a maximum of

ten minutes.

4-A sentence should be limited to the absolutely necessary for the

respective understanding and rationale, and the indications for

the identification of the accused, the assistant or the civil parties, as well as the

enumeration of the proved and unproven facts, be made, in the whole or in

part, by remission to the news self, to the prosecution or to

any other procedural piece joins the autos.

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Article 391º-E

[...]

It is correspondingly applicable to the abbreviated process the provisions of the

article 391º.

Article 392º

[...]

1-In case of a crime punishable with a prison sentence not exceeding 5 years or

with a penalty different from the prison, the Public Prosecutor's Office, when it understands that

to the case must be concretely applied penalty or safety measure not

deprivation of liberty, requires the court that the application take place in

sumarest process.

2-The provisions of the preceding paragraph shall still apply in the event of a tender

of offences, provided that each of the crimes, individually

considered, be punishable with imprisonment of maximum not more than 5

years or with a different penalty from prison.

3-If the procedure depends on particular charge, the application

predicted in the previous numbers depends on the concordance of the assistant.

4-A form of summary process does not preclude the application of feathers

ancillary in the general terms provided for in this Code.

Article 393º

26

[...]

Intervention by civil parties is not allowed. It may, however, the aggrieved, until

at the time of the submission of the Public Prosecutor's application

Referred to in the previous article, express the intention to obtain the redress of the

damage suffered, in which case the said application by the Public Prosecutor's Office

it should contain the indication to which it allede to paragraph 2 (b) of Article 394º.

Article 394º

[...]

1-The Public Prosecutor's application is written and contains the particulars

for the identification of the accused, the description of the imputed facts and the

mention of the violated legal provisions, the existing evidence and the enunciation

summary of the reasons why it understands that the case should not

concretely be applied prison sentence.

2-The application ends with the precise indication by the Ministry

Public:

a) From the sanctions concretely proposed, principal and ancillary, if it is the

case;

b) of the exact amount to be allocated for the repair, under the terms of the

provisions of Article 82º-A, when this should be applied;

c) From the defender appointed to you, should this not already have a lawyer

constituted or defender appointed.

27

3-The Public Prosecutor's Office notifies the application to the accused, and to its

defender, to, within 15 days, declare whether with him agrees or if the

he opposes it.

4-A notification of the accused referred to in the preceding paragraph shall be made by

personal contact, in accordance with point (a) of Article 113º (1), and

must contain compulsorily:

a) The clarification of the effects of concordance and the opposition to which if

refer to articles 395º, 397º and 398º;

b) The warning that their silence within the said period will be equivalent to the

opposition.

5-A concordance and the opposition can be made by simple statement.

Article 395.

[...]

Completed the deadline provided in the previous article, and if or not there are opposition

of the defendants, are the autos remitted to the judge.

Article 396.

[...]

1-The judge rejects the application:

a) when the procedure is legally inadmissible;

b) Where the application is manifestly unfounded, in the terms of the

provisions of paragraph 3 of Article 311º;

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c) When you understand that the proposed sanction is manifestly untenable

of performing properly and sufficient the purposes of punishment.

2-In the case provided for in paragraph (c) of the preceding paragraph, the judge may, in

alternative, fix different sanction, in its kind or measure, of the proposal

by the Public Prosecutor's Office, with the concordance of this and the accused, as well as

fix, with no need for agreement, indemnification other than the proposal by the

Prosecutor's Office.

3-In the case provided for in the preceding paragraph, the judge notifies the accused and the

defender of his order, applying all the provisions of paragraphs 3, 4 and 5 of the

article 394º.

4-If the judge inliminally rejects the application with the plea

referred to in paragraph 1 (c), continue the autos, without redistribution, to

trial in the form of abridged process, in the terms of the articles

391º-C to 391º-F, validating the application as an indictment.

5-Of the order referred to in paragraph 1 shall not be up to appeal.

Article 397º

[...]

1-When the accused agree to the application, or with the order

delivered on the terms of Article 396º (2), the judge, by order, proceeds

to the application of the penalty, the fixing of the indemnity and the conviction in the

payment of expense, being the rate of justice reduced to one third.

2-The dispatch to which the preceding paragraph is referred is worth as a sentence

condensation and transits immediately on trial.

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3-It is void the order that applies penalty other than the proposal by the

Prosecutor's Office or set out in accordance with the provisions of paragraph 2 of Article 396º.

Article 398.

[...]

1-In cases where the accused object to the application of the Ministry

Public, or do not respond to it, in the terms provided for in paragraph 5 of the article

394., the autos are remitted for trial in the form of proceedings

abbreviated, pursuant to the articles 391º-C to 391º-F, worth the application

as a charge.

2-In cases where the accused object to the judicial dispatch provided for in the

Article 396 (2), continue the autos, without redistribution, to

trial in the form of abridged process, in the terms of the articles

391º-C to 391º-F, worth such dispatch as charge.

Article 2.

Addition to the Code of Criminal Procedure

They are deferred to the Code of Criminal Procedure Article 67º-A, 203º-A and 385º-

A, with the following wording:

" Article 67º-A

[Victim]

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1-It is considered a victim all the natural person who suffered an attack on the

your physical integrity or your honor, dignity or good name, or a

material or moral loss, directly caused by actions or omissions

that they infringer the criminal law.

2-Without prejudice to the rights enshrined in favour of the offending in the articles

50º, 51º and 68º, victims of crime assists the rights to:

a) Serem briefed on the regime of the right of complaint;

b) Series informed about the status of the various procedural subjects and

their forms of intervention in the criminal case;

c) Serem briefed on the legal regime of judicial support;

d) Serem informed about the institutions, public, associative or

private individuals who develop activities to support the victims of

crimes;

e) Conditional treatment by the judicial authorities and the

organs of criminal police, taking particular account of

the appropriate guarantees of reservation or the special provisions of the law;

f) Serem informed of the legal regime requirements of the right of

victim to compensation and reimbursement of the expenses in which

incurred by legitimising participation in the criminal proceedings, without

prejudice to the provisions of the law in relation to judicial support;

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g) Serem informed, in particular, of the scheme and services

responsible for the instruction of claims for compensation to victims

of violent crimes, formulated under the scheme provided for in the

Decree-Law No. 423/91 of October 30, and applications for

advance to victims of domestic violence, formulated to the

shelter of the scheme provided for in Law No. 129/99 of August 20;

h) Suscite and take part, directly or through counsel, in the

attempts at legally admitted mediation;

l) Serem informed of the progress of the complaints by you subscribed, and

of the subsequent proceedings, pursuant to the law;

m) Serem informed in particular, in cases of recognised

potential dangerousness of the aggressor, the major decisions

judiciary that affect the status of this;

n) In case of citizens of a foreign state, which special

means of defending your interests that you can use.

3. Compete to the Public Prosecutor's Office to ensure, in the process, the realization of the

rights of the victims, and should for the purpose of receiving the best cooperation

both from the criminal police bodies and from the institutions and entities

with mission of follow-up or support to the victims.

Article 203º-A

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[Deadline for implementation of measures]

Without prejudice to the provisions of Article 196º, the judge shall ensure that the

coaction measure determined is notified to the defendants within 5 days

after the promotion of the Public Prosecution Office.

Article 385º-A

[Representations of inquiry]

1-The Public Prosecutor's Office, after, if it judges it convenient, to carry out

summary inquiry, presents the accused immediately to the court

competent for the trial.

2-Whenever there is a need for the realization of representations that

impossible to make such an immediate presentation, the Public Prosecutor's Office may

present the case to the competent court for trial until the 30 th

day after the arrest, owing as soon as to make the record of the autos o

moment in which this will succeed; in that case, it gives notice to the court,

with a copy of the self arrest, and notifies the accused and the witnesses to

appear on the date and time it designates, with the warning to the accused

that the hearing will perform even if it does not compare, being

represented by defender.

3-If, within this period, it does not come to be possible to carry out all the representations of

evidence sought by the Public Prosecutor's Office, this continues the investigation and

informs the court, the defendants and the witnesses that the proceedings do not

will follow the summary form, by running out of effect the scheduled trial ".

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Article 3º

Abrogation standard

Article 391º-F of the Code of Criminal Procedure is revoked.

Article 4º

Application in time

The amendments to the Code of Criminal Procedure introduced by the present

diploma are applicable to the pending cases on the date of their entry into

vigour.

Article 5º

Entry into force

This diploma shall come into force sixty days after its publication.

Palace of S. Bento, March 8, 2010

The Deputies,