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BILL OF LAW No. 427 /XII

CHANGES THE CRIMINAL CODE, LAW NO. 5/2002, OF January 11, AND THE LEI

NO. 101/2001, OF August 25, TRANSPOSING TO THE ORDER

LEGAL INTERNAL TO DIRECTIVE NO. 2011 /36/UE, OF PARLIAMENT

EUROPEAN AND COUNCIL OF April 5, 2011 ON THE

PREVENTION AND THE FIGHT AGAINST TRAFFICKING IN HUMAN BEINGS AND THE

PROTECTION OF VICTIMS AND WHICH REPLACES THE FRAMEWORK DECISION

2002 /629/JAI OF THE COUNCIL

Exhibition of reasons

The Directive 2011 /36/UE, of the European Parliament and of the Council, of April 5 of

2011, concerning the prevention and fight against trafficking in human beings and the

protection of the victims, and which replaces the Framework Decision 2002 /629/JAI of the

Council, aims to define a common framework for preventing and combating trafficking in

human beings, while serious violation of human rights, committed

frequently in the framework of organised crime.

This instrument, following the philosophy of the Convention on the Fight against the

Trafficking in Human Seres, from the Council of Europe, adopts a concept more

broad than the Framework Decision 2002 /629/JAI, going on to include new

forms of exploitation.

Includes, for example, forced mendicity as a form of work or services

forced, as defined in Convention No 29 of the International Organization

of the Work, 1930 on Forced or Mandatory Work.

It also includes, in the same context, the "exploitation of criminal activities"

that should be understood as the exploitation of a person with a view to the

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practice of small shoplifting or robberies, drug trafficking and other activities

similar that are illicit and lucrative.

It is stressed that the definition contained in this Directive also covers trafficking in

human beings for the purposes of organ removal, which constitutes a serious

violation of human dignity and physical integrity, as well as others

conduits, in so far as they are constitutive elements of trafficking in beings

humans.

Notwithstanding the internal legal planning to accommodate already the vast majority of

normative solutions advocated by this community instrument, it matters

make it as effective as possible, attending specifically as to the flows

international trafficking, or the objectives of the instruments of law

international to which Portugal is bound in this matter,

notably this Directive in concrete, the Additional Protocol to the Convention

of the United Nations against Transnational Crime relating to the Prevention,

Repression and Punishment of Trafficking of People, in particular Women and Children

and the Convention of the Council of Europe on the Fight against Trafficking in

Human beings.

In this sense, the scope of the incrimination of trafficking in persons is widened to

any type of exploitation. The scope of the intervention of Article 160º of the Code

Penal leaves, thus, to be limited to specific forms of exploitation, which

go on to have exemplificatory nature.

In that range (of the exemplificative forms of exploitation), it goes on to include, in the

case of the minors, trafficking for adoption.

Notwithstanding the term aliciar can be understood as encompassing the

recruitment, it is understood to be timely to add the express reference to the

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recruitment, in such a way as to harmonize domestic law, either with the Directive itself,

either with the Protocol of Palermo, or with the Warsaw Convention, or

with the remaining international instruments against trafficking in beings

humans to which Portugal is bound.

On the other hand, and also as required in the recommendations of the GRETA (group

of experts against trafficking in human beings, from the Council of Europe),

it is clarified that slavery is included in the forms of exploitation resulting from the

trafficking in persons and transposing into our legal order the

aggravating circumstances provided for in Article 24º of the Council Convention

of Europe on the Fight against Trafficking in Human Serbs.

It is added that, either in fulfilment of the GRETA recommendations, or in

observance of Directive 2011 /36/UE, is explained the irrelevance of the

consent of the victim of trafficking.

At the level of the criminal investigation, the insertion of the crime of trafficking of persons into the

catalogue of crimes of Law No. 5/2002 of January 11, which sets out measures

of combating organised crime, will allow to respond also to the

need to provide for access to effective research tools, such as

those used in the cases of organised crime and other crimes

graves.

In the same context, it proceeds to the insertion of the crime of trafficking of persons in the

set of the crimes covered by the Act No 101/2001 of August 25, concerning

to the legal regime of covert actions for the purposes of prevention and research

criminal.

So, in the applicable constitutional and regimental terms, the Deputies of the

PSD and the CDS-PP, below signed, present the following bill:

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Article 1º

Amendment to the Criminal Code

Article 160º of the Criminal Code, approved by the Decree-Law No. 400/82, of 23 of

September, and amended by Law No. 6/84, of May 11, by the Decrees-Laws n.

101-A/88, of March 26, 132/93, of April 23, and 48/95, of March 15,

by the Laws n. ºs 90/97, of July 30, 65/98, of September 2, 7/2000, of 27

of May, 77/2001, of July 13, 97/2001, 98/2001, 99/2001 and 100/2001, of 25

of August, and 108/2001, of November 28, by the Decrees-Leis n. ºs 323/2001,

of December 17, and 38/2003, of March 8, by the Laws n. ºs 52/2003, 22

of August, and 100/2003, of November 15, by the Decree-Law No. 53/2004, of

March 18, and by the Leis n. ºs 11/2004 of March 27, 31/2004, from 22 of

July, 5/2006, of February 23, 16/2007, of April 17, 59/2007, of 4 of

September, 61/2008, of October 31, 32/2010, of September 2, 40/2010, of

September 3, 4/2011, of February 16, 56/2011, of November 15, and

19/2013, of February 21, goes on to have the following essay:

" Article 160º

(...)

1-Who to offer, deliver, recruit, altender, accept, transport, lodge or welcome

person for the purpose of exploitation, including sexual exploitation, exploitation of the work,

slavery or the extraction of organs:

a) (...);

b) (...);

c) (...);

d) (...); or

e) (...);

(...).

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2-A the same penalty is applied to whom, by any means, recruit, altender, carry,

carry out the accommodation or reception of a minor, or deliver it, offer or accept,

for the purpose of exploitation, including sexual exploitation, exploitation of the work, the

slavery, the extraction of organs or the adoption.

3-(...).

4-The penalties provided for in the preceding paragraphs are aggravated by one third, in their

minimum and maximum limits, if the conduct in them referred to:

a) Tiver put in danger the life of the victim;

b) Tiver was committed by an employee in the performance of his duties; or

c) Tiver was committed in the framework of a criminal association.

5-[ Previous Article No 4 ].

6-[ Previous Article No 5 ].

7-[ Previous Article No 6 ].

8-The consent of the victim of the crimes provided for in the preceding paragraphs does not exclude

in case any the ilicitude of the fact . "

Article 2º

Amendment to Law No. 5/2002 of January 11

Article 1º of Law No. 5/2002 of January 11 (sets out combat measures

to organised crime and economic-financial), as amended by Law n.

19/2008, of April 21, and by the Decrees-Law n. 317/2009, of October 30,

and 242/2012, of November 7, goes on to have the following essay:

" Article 1º

(...)

1-(...):

a) (...);

b) (...);

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c) (...);

d) (...);

e) (...);

f) (...);

g) (...);

h) (...);

i) (...);

j) (...);

l) (...);

m) Lenocinium and lenocinium of minors;

(n) Trafficking in persons;

o) [ previous paragraph (n) ].

2-The provisions of this Law shall only apply to the crimes provided for in points (j) to (o) of the

previous number if the crime is practiced in an organised manner.

3-(...). "

Article 3º Amendment to Law No. 101/2001 of August 25

Article 2º of Law No. 101/2001 of August 25 (establishes the legal regime

of the covert actions for the purposes of prevention and criminal investigation), passes the

have the following essay:

" Article 2º

(...)

(...):

a) (...);

b) (...);

c) (...);

d) (...);

(e) Trafficking of persons;

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f) [ previous point (e) ];

g) [ previous point f) ];

h) [ previous point (g) ];

i) [ previous point (h) ];

j) [ previous point (i) ];

l) [ previous point (j) ];

m) [ previous point l) ];

n) [ previous point (m) ];

o) [ previous paragraph (n) ];

p) [ previous point (o) ];

q) [ previous point (p) ];

r) [ previous point (q) ];

s) [ previous point r) ]. "

Palace of Saint Benedict, June 17, 2013

The Deputies of the PSD and the CDS-PP,