CHAIR OF THE COUNCIL OF MINISTERS

1

Proposal for Law No 76 /XII

Exhibition of Motives

With this proposed law, please submit to the assessment of the Assembly of the Republic a

punctual alteration to the Code of Enforcement of the Penas and Privative Measures of Freedom.

The punitive system of our legal planning is based on the fundamental idea that the

feathers should be executed with a pedagogical and ressocialising sense.

It is constitutional requirement, derived from the need and the subsidiarity of the intervention

legal-criminal law, which only the general and special prevention needs can justify and

give ground and sense to the criminal sanctions.

The deprivative penalty of freedom only finds foundation when it is the only means appropriate to the

satisfaction and stabilization of the sense of community safety, achieving

simultaneously the socialization of the convict.

The known inconveniences of the prison sentence can only be minored through their

correct execution.

The possibility of precancerous outputs, of parole, of reintegration in the middle

family or, at the very least, the possibility of maintenance of family and friendship ties

are fundamental and determinant factors in the ressocialization of the convict and in his

reintegration into society, in such a way as not to commit new crimes.

The overwhelming majority of foreign inmates convicted in custodial sentences of

freedom and in the incidental penalty of expulsion does not bring together the conditions that allow them to

benefit from the pointed situations.

CHAIR OF THE COUNCIL OF MINISTERS

2

With the present legislative initiative, it relaxes the opportunity for the ancillary punishment of

expulsion being early, either through the decrease of the effective time of fulfillment of the

prison term necessary for the execution of the expulsion penalty, either through the possibility of,

upon reasoned and favorable opinion of the director of the chain and of social reinsertion, and

with the annuence of the convict, the execution of the expulsion penalty can occur even in

previous moment.

Finding carried out the purpose of the penalty in the protection strand of society, the

amendment will allow, in respect of the inmates under the conditions referred to, the execution of the

pity can be also be guided in the sense of your social reinsertion, through your

return to the country of origin, where the reclusive is likely to have familial and affective ties, and

where more easily will integrate.

On the other hand, with the present amendment, the scheme is appropriate to the changes in the

Law No. 23/2007 of July 4 by the Proposal for Law No [Reg. 50 /XII], relatively to the

legal regime of the entry, stay, exit and removal of foreigners from the territory

national.

The hearings of the Superior Council of Magistracy, of the Council, were promoted

Superior of the Public Prosecutor's Office, the Higher Council of Administrative Courts and

Tax, of the Order of Lawyers, of the House of Solicitors, of the Trade Union Association

of the Portuguese Judges, of the Syndicate of the Magistrates of the Public Prosecutor's Office, of the Union

of the Judicial Officers and the Union of the Officers of Justice.

Thus,

Under the terms of the paragraph d) of Article 197 (1) of the Constitution, the Government presents to the

Assembly of the Republic the following proposal for a law:

Article 1.

CHAIR OF THE COUNCIL OF MINISTERS

3

Object

This Law shall carry out the third amendment to the Code of Execution of the Penas and Measures

Deprivatives of Freedom, passed by Law No. 115/2009 of October 12, and amended by the

Laws No 33/2010, of September 2, and 40/2010, of September 3.

Article 2.

Addition to the Code of Enforcement of the Penas and Privative Measures of Freedom

They are deferred to the Code of Enforcement of the Penas and Privative Measures of Freedom,

approved by Law No. 115/2009 of October 12, and amended by the Laws No. 33/2010, of 2

of September, and 40/2010, of September 3, Articles 188-188-B and 188.-C, with the

next essay:

" Article 188.

Execution of the expulsion penalty

1-Having been applied for incidental punishment of expulsion, the judge orders his / her

execution as soon as:

a) Compliments half of the penalty, in the cases of conviction in equal punishment

or less than 5 years in prison, or, in the event of successive execution of

feathers, as soon as you find yourself fulfilled half of the penalties;

b) Complied with two thirds of the penalty, in the cases of conviction in sentence

greater than 5 years in prison, or, in the event of successive execution of

feathers, as soon as two thirds of the penalties are met.

CHAIR OF THE COUNCIL OF MINISTERS

4

2-The judge may, under proposal and appear reasoned from the director of the

prison establishment, and obtained the concordance of the convict, decide the

anticipation of the execution of the expulsion incidental penalty, as soon as:

a) Served a third of the penalty, in the cases of conviction in equal punishment

or less than 5 years in prison, or, in the event of successive execution of

penalties, as soon as one third of the penalties are met;

b) Compliments half of the penalty, in the cases of conviction in pity

greater than 5 years in prison, or in the event of successive execution of

feathers, as soon as you find yourself fulfilled half of the feathers.

3-Regardless of initiative of the director of the prison establishment, the

judge, officiously or at the request of the Public Prosecutor's Office or the

doomed, requests the reasoned opinion to the director of the establishment.

Article 188-B

Hearing of the reclusion and decision

1-Received the proposal or opinion of the director of the prison establishment, the

judge designates date for hearing of the convict, in which they must be

gifts the defender and the Public Prosecutor's Office.

2-The judge questions the convict on all the relevant aspews for the

decision in question, including consent to the early execution

of the incidental penalty of expulsion, after which gives the word to the Ministry

Public and the defender, for, wanting, to require the judge the formulation of

questions or offer the evidence that adjudicates convenient, deciding

the judge, by irrecurrable dispatch, on the relevance of the questions and

admission of the evidence.

CHAIR OF THE COUNCIL OF MINISTERS

5

3-There is no evidence to be produced, or finda its production, the judge gives the

word to the Public Prosecutor's Office and the defender to address the

anticipation of the execution of the expulsion incidental penalty, after which

profere verbal decision, deciding expulsion when this one proves to be

compatible with the defence of order and social peace and is to predict that the

doomed will lead your life in a socially responsible manner, without

commit crimes.

4-A The hearing of the convict, the evidence produced orally and the decision is

documented by audiovisual or audio recording, or consigned to the

auto when those technical means are not available.

5-The device is always dictated to the minutes.

Article 188-C

Notification of decision and appeal

1-A decision that determines or refuses the execution of the expulsion penalty is

notified to the convict, the defender and the Public Prosecutor's Office.

2-A Decision that determines the execution of the expulsion incidental penalty, after

transit on trial, is communicated to prison services, to the services of

criminal identification, through the criminal record bulletin, to the Service of

Foreigners and Borders and too many services or entities that should intervene

in the execution of the measure.

3-A The application of the convict or the Public Prosecutor's Office, is always delivered

copy of the recording or of the auto within the maximum term of 48 hours.

CHAIR OF THE COUNCIL OF MINISTERS

6

4-The interposed appeal of the decision that decrees or rejects the execution of the penalty

expulsion accessory is limited to the issue of the granting or refusal of the

execution of the expulsion incidental penalty.

5-Have legitimacy to appeal the Public Prosecutor's Office and the convict.

6-The appeal has suspensive effect and is of urgent nature, pursuant to the

article 151. "

Article 3.

Systematic change to the Code of Execution of the Penas and Privative Measures of

Freedom

1-Chapter V of Title IV of Book II of the Code of Execution of the Penas and Measures

Deprivatives of Freedom, passed by Law No. 115/2009 of October 12, and amended

by the Leis n. ºs 33/2010 of September 2 and 40/2010, of September 3, passes

epitome "Conditional freedom and execution of the expulsion incidental penalty."

2-It is added to Chapter V of Title IV of Book II of the Code of Execution of the Penas and

Privacy Measures of Freedom, passed by Law No. 115/2009 of October 12, and

changed by the Laws n. ºs 33/2010 of September 2 and 40/2010, of September 3, the

section IV, with the episting "Execution of the expulsion incidental penalty", which it is composed

by Articles 188-A to 188 .ºC.

Article 4.

Abrogation standard

Article 182 of the Code of the Enforcement of the Penas and Privative Measures of

Freedom, passed by Law No. 115/2009 of October 12, and amended by the Laws

n. ºs 33/2010, of September 2, and 40/2010, of September 3.

CHAIR OF THE COUNCIL OF MINISTERS

7

Article 5.

Entry into force

This Law shall come into force 30 days after its publication.

Seen and approved in Council of Ministers of June 21, 2012

The Prime Minister

The Minister-Deputy and Parliamentary Affairs