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Proposal for Law No 271 /XII

Exhibition of Motives

The right of the accused person to be present at the trial is included in the right to a

equitable process laid down in Article 6 of the Convention for the Protection of Rights

of Man and Fundamental Freedoms, with the interpretation given to him by the

European Court of Human Rights. It is not, however, a right

absolute, admitting that, in certain circumstances, the accused person may, by

your free will, waive such a right.

Council Framework Decision No 2002 /584/JAI of June 13, 2002 on the

warrant for European arrest and delivery procedures among Member States of the

The European Union allowed, in its original essay, that the implementing authority to demand the

issuing authority that provided guarantees deemed sufficient by ensuring to the

person on whom the European arrest warrant the possibility of, should the

trial had elapsed in his absence, apply for a retrial and in him to be

present. The sufficiency of that warranty was issue dependent on decision by the authority of

execution, so it was becoming difficult to know exactly when it could run out to be

refused on grounds in the absence of the accused in the trial.

The same situation was in the majority of the remaining recognition instruments

mutual, meanwhile approved, that did not consistently address the issue of

decisions rendered in the wake of a trial in which the accused had not been

present, hindering the work of the professionals of justice and harming cooperation

judicial.

It was therefore necessary to approve changes to the instruments already in place, passing

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the provision of common specific rules that substantiate the refusal of recognition and

execution of a decision handed down in the absence of the accused. The Framework Decision

n. 2009 /299/JAI of the Council of February 26, 2009, thus amended a set of

Previous Framework Decisions, donating them from limits to recognition in situations of

trial in the absence.

Council Framework Decision No 2002 /584/JAI of June 13, 2002, as amended in this

context, had been transposed into the domestic legal order by Law No. 65/2003, 23 of

August, which approves the legal regime of the European Arrest Warrant.

It must now amend this legal regime in line with the changes that have been

introduced in Framework Decision No 2009 /299/JAI of the Council of February 26

2009, specifically the grounds for refusal to carry out a warrant for detention

European, when there has been a trial in the absence of the accused.

This Law thus proceeds to the adaptation of domestic law to the Framework Decision

n 2009 /299/JAI of the Council of February 26, 2009 amending the Framework Decision

n. 2002 /584/JAI of the Council of June 13, 2002, strengthening the rights

procedural and by promoting the application of the principle of mutual recognition in what

respects the decisions rendered in the absence of the accused.

In this scope, it also proceeds to the republication of the annex containing the type form

on the European Arrest Warrant, the consolidated version, containing already the

changes introduced by Council Framework Decision No 2009 /299/JAI of 26 of

February 2009, was made available by the Council of the European Union to the

Member States.

Take the initiative to clarify some of the aspements of Law No. 65/2003 of August 23,

particularly with regard to the distribution of competences between authority of

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issuance and enforcement authority.

The Higher Council of the Magistrature was heard, the Higher Council of the Ministry

Public, the Order of Lawyers, the Trade Union Association of Portuguese Judges and the

Top Council of Administrative and Fiscal Courts.

The hearing was promoted from the House of Solicitors, the Union of Justice Officers,

of the Association of Justice Officers, of the Union of Judicial officers, of the Union

of the Magistrates of the Public Prosecutor's Office, of the Council of Justice Officers, of the Council

Lisbon District of the Order of Lawyers, of the District Council of the Port of the Order

Counsel, of the Coimbra District Council of the Order of Lawyers, of the

District Council of Évora of the Order of Lawyers, of the Faro District Council of the

Order of Lawyers, of the District Council of the Azores of the Order of Lawyers, of the

Wood District Council of the Order of Lawyers and of the Justice Movement and

Democracy.

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.

Object

This Law shall carry out the first amendment to Law No. 65/2013 of August 23 on

compliance with Council Framework Decision No. 2009 /299/JAI of the Council of February 26

2009, amending Decisions-Table n. ºs 2002 /584/JAI, 2005 /214/JAI, 2006 /783/JAI,

2008 /909/JAI and 2008 /947/JAI.

Article 2.

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Amendment to Law No. 65/2003 of August 23

Articles 2, 6 to 8, 12, 13 and 38 of the Law No. 65/2003 of August 23, they have the

next essay:

" Article 2.

[...]

1-[...].

2-You will be granted the delivery of the person sought on the basis of a warrant from

European detention, without control of the double jeoparding of the fact, always

that the facts, in accordance with the legislation of the issuing member state,

constitute the following infractions, punishable in the Member State of issuance

with a penalty or privacy measure of freedom of duration

maximum not less than three years:

a) [...];

b) [...];

c) [...];

d) [...];

e) [...];

f) [...];

g) [...];

h) [...];

i) [...];

j) [...];

l) [...];

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m) [...];

n) [...];

o) [...];

p) [...];

q) [...];

r) [...];

s) [...];

t) [...];

u) [...];

v) [...];

x) [...];

z) [...];

aa) [...];

bb) [...];

cc) [...];

dd) [...];

ee) [...];

ff) [...];

gg) [...];

hh) [...];

ii) [...].

3-[...].

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Article 6.

Temporary transfer and hearing of the person sought while waiting for

decision on the execution of the warrant

1-Where the European Arrest Warrant has been issued for

effects of criminal procedure, the issuing judicial authority, while

is pending the decision on the execution of the warrant, may apply for the

judicial authority of execution that:

a) If you proceed to the hearing of the person sought; or

b) [...].

2-[...].

3-[...].

4-[...].

5-A The competent executing judicial authority may designate one another

judicial authority of your State to take part in the hearing of the person

sought, in the sense of ensuring the correct application of the legal discipline

established by the paragraphs 3 and 4 and the conditions agreed with the authority

legal issuance.

6-[...].

Article 7.

[...]

1-[...].

2-[...]:

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a) [...];

b) [...];

c) [...];

d) [...];

e) The person, in advance of their delivery, has consented to it and

renounced to the benefit of the specialty rule before the

judicial authority of execution;

f) [...];

g) There is consent from the executing judicial authority which

delivered the delivery decision.

3-If the member state of issuance is the Portuguese state, the waiver

provided for in paragraph f) of the previous number must:

a) Be made before the court of the relationship of the area where the person resides or

meet;

b) Be exarred in self-signed by the person and drafted by way of

demonstrate that that person has been informed of the facts and of their

legal consequences and expressed his resignation voluntarily and

with full awareness of the consequences of such resignation;

c) [...].

4-[...]:

a) It is provided by the court of the relationship that delivered the decision to deliver;

b) [ Repealed ];

c) [...];

d) It shall be refused for the reasons provided for in Article 11, and may

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still be refused only with the basics provided for in the

articles 12 and 12-A;

e) The guarantees referred to in Article 13 shall be provided.

relation to the situations provided for in it;

f) [ Previous point (e) ].

5-If the Portuguese state is the issuing State, it is competent to request

the consent referred to in point (s) g ) of paragraph 2, the judicial authority

with competence for the knowledge of the infraction practiced at the moment

previous to their delivery and different from the one that motivated the issuance of the

warrant for European arrest.

6-The consent referred to in point (s) g ) of paragraph 2 is presented by the

State member state of issuance to the member state of execution accompanied

of the information referred to in Article 3 (1) and of a translation, in the

terms of Article 3 (2).

Article 8.

[...]

1-[...].

2-[...].

3-[...].

4-If the member state of implementation is the Portuguese State, the

consent referred to in point (s) g) of paragraph 2 of the previous article is

applicable the provisions of paragraph 4 of the same article.

5-The request for consent referred to in the preceding paragraph shall be submitted in

compliance with the provisions of Article 4, accompanied by the information

referred to in Article 3 (1) and of a translation, pursuant to paragraph 2 of the

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same article.

6-[ Previous Article No 5 ].

7-[ Previous Article No 6 ].

Article 12.

[...]

1-[...]:

a) [...];

b) [...];

c) Being the facts that motivate the issuance of the arrest warrant

European knowledge of the Public Prosecutor's knowledge, has not been

instituted or has been decided to put an end to the respect process,

by archiving or non-pronunciation;

d) [...];

e) [...];

f) The wanted person has definitely been judged by the same

facts by a third State provided that, in the case of conviction, the

Penalty has been fully complied with, is being performed or already

may not be complied with under the law of the State of the conviction;

g) [...];

h) [...].

2-[...].

3-A refusal to implement under the terms of paragraph g) of paragraph 1 depends on the decision of the

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court of the relationship, in the process of the implementation of the European arrest warrant, the

application from the Public Prosecutor's Office, which declarates the sentence enforceable in

Portugal, confirming the penalty applied.

4-A The decision referred to in the preceding paragraph shall be included in the decision to refuse to

implementation, sensing it applicable to the regime concerning the review and confirmation of

foreign sentencing sentences.

Article 13.

[...]

1-[ Previous body of the article ]:

a) [ Previous Article (b) of the body of the article ];

b) [ Previous Article (c) of the body of the article ] .

2-To the situation provided for in the paragraph b) of the preceding paragraph shall apply the provisions of the

n. paragraphs 3 and 4 of Article 12.

Article 38.

[...]

1-[...].

2-[...].

3-[...].

4-[...].

5-The requests for transit referred to in paragraphs 2 and 3 are transmitted by the

central authority to the prosecutor's office in the court of the competent relationship,

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o which, harvested the necessary information and secured the contradictory,

decides in the shortest term, compatible with the effectivation of the transit.

6-[ Previous Article No 5 ].

7-[ Previous Article No 6 ].

8-[ Previous Article No 7 ]. "

Article 3.

Amendment to the Annex to Law No 65/2003 of August 23

The Annex to Law No. 65/2003 of August 23 is to have the constant wording of the Annex to the

present law, of which it is an integral part.

Article 4.

Addition to Law No. 65/2003 of August 23

It is added to Law No. 65/2003 of August 23, Article 12, with the following essay:

" Article 12.

Decisions rendered following a trial in which the defendants do not

have been present

1-A The implementation of the European arrest warrant issued for the purpose of

fulfillment of a penalty or measure of custodial security of liberty

may be refused if the person has not been present at the trial that

led to the decision, unless of the warrant conss that the person, in

compliance with the legislation of the Member State of issuance:

a) Has been notified personally of the date and venue provided for the

judgment that led to the decision, or received official information from the

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date and venue provided for the trial, in a way that left

unmistakably established that had knowledge of the trial

predicted and that a decision could be delivered even not

being present at the trial; or

b) Having knowledge of the planned judgment, conferred mandate to a

defender by himself assigned or by the state for his defence and was

effectively represented by that defender in the trial; or

c) After having been notified of the decision and expressly informed

of the right to retrial or the appeal that allows for re-examination

of the merit of the cause, including of new evidence, which may lead to

a separate decision from the initial, expressly stated that not

contesting the decision or did not require retrial or appeal

within the applicable time limit; or

d) It was not notified personally of the decision, but in the wake of its

delivery to the State of issuance is expressly informed of the right

that assists you with the new trial or the appeal that allows for

reassessment of the merit of the cause, including appreciation of new

proofs, which can lead to a distinct decision from the initial, well

as of the respective deadlines.

2-In the event that the European arrest warrant is issued under the conditions of the

point ( d ) of the preceding paragraph, and of the person concerned have not received

any prior official information about the existence of the criminal case that

you are instituted, nor have you been notified of the decision, when being informed about

the content of the European Arrest Warrant may require it to be

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provided with a copy of the decision prior to its delivery to the member state of

issuance.

3-For the purposes of the provisions of the preceding paragraph, soon after being informed

of the application, the issuing judicial authority faculty, by title

informative, copy of the decision by means of the judicial authority of

execution, without any such implies delay in the process or later the delivery, not

being this communication regarded as a formal notification of the

decision nor relevant for the counting of any applicable deadlines for

require retrial or interacting appeal.

4-In the event that the person is delivered under the conditions of the ( d ) of paragraph 1 and have

required a new trial or appeal, the detention of this is,

until they are completed such tramites, revised in accordance with

legislation of the Member State of issuance, either officiously or the

request of the person concerned. "

Article 5.

Abrogation standard

The subparagraph shall be repealed. b ) of Article 7 (4) and paragraphs (4) d ) and and ) of Article 11 of the Law n.

65/2003, of August 23.

Article 6.

Entry into force

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

Seen and approved in Council of Ministers of January 8, 2015

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The Prime Minister

The Minister of the Presidency and Parliamentary Affairs

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ANNEX

(referred to in Article 3)

" ANNEX

European arrest warrant

The present warrant has been issued by a competent judicial authority. Requests to

detention of the individual below and his / her delivery to the judicial authorities for purposes

of criminal procedure or compliance with a penalty or safety measure

deprivation of liberty.

a) Information relating to the identity of the person sought:

Nickname: ............................................................................................................................................................

Name (s) own: ........................................................................................................................................

Maiden nickname (eventually): ............................................................................................................

Alwedges or pseudonyms (eventually): ..............................................................................................

Sex: ..................................................................................................................................................................

Nationality: .................................................................................................................................................

Date of birth: .......................................................................................................................................

Place of birth: ......................................................................................................................................

Residence (e/or last known address): ..........................................................................................

...........................................................................................................................................................................

Language or languages that the wanted person understands (if they are known):

...........................................................................................................................................................................

Private signs / description of the person wanted: .................................................................................

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...........................................................................................................................................................................

Photo and fingerprints of the person wanted, if they exist and can be transmitted, or

contact of the person from which you will be able to obtain this data or the DNA profile (if it is

possible to send and if the information has not already been included):

b) Decision that substantiates the arrest warrant:

1. Mandated detention or court decision with the same executive force:

....................................................................................................

Type:

............................................................................................................................................................................

................................

2. Sentence with executive force: ................................................................................................... ...................................................................................................................................................

Reference:

............................................................................................................................................................................

................................

c) Indications relating to the duration of the penalty:

1. Maximum duration of the penalty or privacy measure of liberty applicable to the (s)

infraction / infractions:

...........................................................................................................................................................................

...........................................................................................................................................................................

2. Duration of sentence or custodial security measure of the freedom delivered:

...........................................................................................................................................................................

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Penalty yet to be fulfilled: .................................................................................................................................

...........................................................................................................................................................................

...........................................................................................................................................................................

d) Indicate if the person was present at the trial that led to the decision:

1.

2.

3. If you have pointed out the square in section 2, please confirm if you check one of the following

situations:

3.1a. the person was notified personally in ... (DD/MM / AAAA) and that way

informed of the date and place provided for the judgment that led to the decision and

informed that such a decision could be delivered even by not being present at the

trial;

OR

3.1b. the person was not notified personally, but received effectively by others

means an official information of the date and place provided for the trial that

led to the decision, in a way that left unmistakably established that

was made aware of the planned trial, and was informed that it could be

prowound a decision even not being present at the trial;

OR

3.2. Having knowledge of the planned judgment, the person conferred mandate to a

defender assigned by himself or the state for his defence in court and was

effectively represented by that defender in the trial;

OR

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3.3. the person was notified of the decision in ... (DD/MM / AAAA) and was expressly

informed of the right to retrial or the appeal and to be present in that

judgment or appeal, which allows for the reassessment of the merit of the cause, including

new evidence, and may lead to a separate decision from the initial:

the person expressly stated that he did not contest the decision;

OR

the person did not require retrial or appeal within the applicable time limit;

OR

3.4. the person was not notified personally of the decision, but

-the person will be informed personally of the decision immediately after the

delivery; and,

-when notified of the decision, the person will be expressly informed of the

right that assists you with the new trial or the appeal and to be present in that

judgment or appeal, which allows for the reappraisal of the merit of the cause,

including new evidence, and may lead to a separate decision from the initial; and

-the person will be informed of the deadline to apply for a new trial or

resource, which will be from ... days.

4. If you have pointed out the square at point 3.1b, 3.2 or 3.3 above, please provide information on the

how it was fulfilled the relevant condition:

...............................................................................................................

...............................................................................................................

.............................................................................

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e) Infraction or infractions:

The present arrest warrant refers to a total of ...................... infraction (s).

Description of the circumstances in which the infraction (s) foi/were committed (s), including the moment (the

date and time), the place and degree of participation of the person wanted in the infraction / in the infractions

........................................................................................................................................................................................

........................................................................................................................................................................................

........................................................................................................................................................................................

........................................................................................................................................................................................

..................................

Nature and legal qualification of the infraction (s) and legal provision / applicable code:

........................................................................................................................................................................................

........................................................................................................................................................................................

........................................................................................................................................................................................

........................................................................................................................................................................................

..................................

I. Indicate, where appropriate, if it is one or more of the infractions that follow, punishable in the

State-Member of issuance with penalty or privacy measure of freedom of duration

maximum not less than 3 years and as defined by the legislation of the Member State of issuance:

0 Participation in a criminal organisation;

0 Terrorism;

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0 Trafficking of human beings;

0 Sexual exploitation of children and pedopornography;

0 Trafficking in narcotic drugs and psychotropic substances;

0 Trafficking of weapons, ammunition and explosives;

0 Corruption;

0 Fraud, including the aggrieved fraud of the financial interests of the European Communities in the

meaning of the Convention of July 26, 1995 on the Protection of Financial Interests of the

European Communities;

0 Bleaching of the proceeds of crime;

0 Falsification of currency, including the counterfeit of the euro;

0 Cybercrime;

0 Crimes against the environment, including trafficking of endangered animal species and species and

endangered plant varieties;

0 Aid for irregular entry and permanence;

0 Voluntary homicide, serious bodily offenses;

0 Trafficking of human organs and tissues;

0 Rapto, kidnapping and taking of hostages;

0 Racism and xenophobia;

0 Theft organized or by armed hand;

0 Trafficking of cultural goods, including antiques and works of art;

0 Burla;

0 Extortion of protection and extortion;

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0 Counterfeits and piratagem of products;

0 Falsification of administrative documents and their trafficking "