Law criminal mediation
Law Nº 21/2007 dated 12th June[u][/u]
Legislation to create a procedure for criminal mediation, as laid out in Article 10 of Decision Nº 2001/220/JAI, from Counsel of March 15th, as regards the statute of victim in criminal proceedings.
The Assembly of the Republic decrees, as stated in paragraph c) of Article 161 of the Constitution, the following:
Article 1
Issue
The present law establishes the rules of mediation in criminal proceedings.
Article 2
Scope
1. Mediation in criminal proceedings may take place when the crime under prosecution has as a basis a complaint or specific accusation.
2. Mediation in criminal proceedings may only take place if said complaint is against person or property.
3. Independently of the nature of the crime, mediation in criminal proceedings cannot take place in the following cases:
a. The legal type of crime foresees imprisonment for more than 5 years;
b. The crime is one against freedom or sexual self-determination;
c. The crime is one of embezzlement, corruption or traffic of influence;
d. The victim is under 16 years of age;
e. Either summary proceedings or highly summarized proceedings are applicable.
4. In those cases in which the victim does not have the capacity to understand the scope and the significance of their right to complain or has died without having renounced the complaint, the mediation can take place with assistance from the complainant rather than the offended party.
5. In the cases referred to in paragraph 4, the references made in the present Law to the victim must have been made to the complainant.
Article 3
Issuing a process for mediation
1. For the purposes laid out in the previous article, after having collated evidence that a crime was committed and the accused was its agent, and with the belief that in this way they are responding adequately to the prevention requirements of the case the Prosecuting Counsel may, at any point in the inquiry, appoint a mediator from those listed in Article 11 and send them information considered essential as regards the accused, the victim and the proceedings.
2. If both the victim and the accused require mediation, where permitted by law, the Prosecuting Counsel will appoint a mediator as laid out in the preceding paragraph, independently of the verification of the requirements therein.
3. In the cases covered in the preceding paragraphs, the accused and the victim receive notification that the process will undergo mediation, as per template approved by Order in Council of the Minister of Justice.
4. Under exceptional circumstances, namely community insertion or due to cultural environmental of the accused and victim, the mediator can transfer the process to another mediator better suited to conduct the mediation, but must inform and provide justification, by electronic means, the Prosecuting Counsel and the organization referred to in Article 13.
5. The mediator contacts both the victim and the accused to obtain their freely provided and informed consents to participate in mediation, informing them of their rights and obligations and the nature, purpose and rules appropriate to the mediation process, and verifies if those meet required conditions to participate in the mediation process.
6. In those cases where consent is not given or the accused or the victim do not meet required conditions for participation in mediation, the mediator must inform Prosecuting Counsel, and continue the criminal process.
7. If the mediator receives the free and informed consents of the accused and the victim to participate in mediation, they sign a consent form, which lays out the rules of mediation, and the mediation process may be initiated.
Article 4
The mediation process
1. Mediation is an informal and flexible process, led by an impartial third party - the mediator - who promotes the approach between the accused and the victim, actively supporting them in the attempt to reach an agreement that allows the repairing of damage caused by an illegal act and contributes to the restoration of social peace.
2. The accused and the victim may revoke, at any time, their consent to participate in the mediation process.
3. If considered useful to the proper resolution of the conflict, other interested parties may intervene in the mediation, namely responsible civilians and injured parties.
4. The terms of paragraph 2 are applicable, with the necessary adaptations, to those responsible civilians and injured parties who may participate in the mediation.
5. The content of the mediation sessions are confidential and may not be used as evidence in legal proceedings.
Article 5
Subsequent procedures
1. If, resulting from mediation, accused and victim do not reach an agreement or the mediation process is not concluded in the pre-determined three-month period, the mediator must inform the Prosecuting Counsel, who will advance with the criminal proceedings.
2. The mediator can request an extension to Prosecuting Counsel, of the period stated in the previous paragraph, of up to a maximum of two months, provided there is a strong probability of reaching an agreement.
3. If, through mediation, both parties come to an agreement, having put the details in writing and the document signed by both parties, the mediator transmits said information to the Prosecuting Counsel.
4. In those cases stated in the previous paragraph, the signing of the agreement signifies the victim withdraws their complaint and the defendant provides no opposition. However, if the agreement is not satisfied within the stated period, the victim has one month to renew the complaint and reopen the investigation.
5. For the effects stated in the preceding paragraph, the Prosecuting Counsel verifies whether the agreement respects the terms of Article 6 and, if so, homologates the withdrawal of a complaint within five days, ensuring the secretary immediately notifies the mediator, the accused and the victim of said homologation.
6. If e-mail, fax or telephone details are available, notification via one of these channels is accepted.
7. Where mediation processes have resulted in an agreement, said processes become priority cases on reception by Prosecuting Counsel until the term of the proceedings referred to in paragraphs 5 and 6.
8. Where Prosecuting Counsel verifies that the agreement does not respect the terms of Article 6, the process returns to the mediator, so that within 30 days, together with the victim and the accused, the illegality is resolved.
Article 6
Agreement
1. The procedural participants freely bind the contents of the agreement, without damage of that laid out in the following paragraph.
2. The agreement may not include sanctions depriving freedom, duties that affect the dignity of the accused, or whose fulfilment last for more than six months.
3. On renewal of a complaint as stated in paragraph 4 of Article 5, the Prosecuting Counsel may use Social Services, Criminal Police and other administrative entities to verify the non-fulfilment of the agreement.
Article 7
Suspension of terms
1. The remittance of the process for mediation determines the suspension of the terms foreseen in paragraph 1 of Article 283 of the Code of Criminal Procedure and the terms of maximum duration of the investigation under Article 276 of the Code of Criminal Procedure.
2. The terms of limitation of criminal procedure are suspended from the time of remittance of the process for mediation until the return by the mediator to the Prosecuting Counsel or, having resulted in a mediation agreement, until the date fixed for its fulfilment.
Article 8
Presence of lawyer in the mediation sessions
In the mediation sessions, the accused and the victim must appear in person, accompanied by a lawyer or by a trainee lawyer if they so wish.
Article 9
Costs
There is no payment of costs for the mediation process, although for all other processes the terms of book XI of the Code of Criminal Procedure and the Code of Judiciary Costs apply.
Article 10
The Role of Criminal Mediator
1. In the performance of their functions, the criminal mediator must remain impartial, independent, respect confidentiality and exercise diligence.
2. The criminal mediator who for legal, ethical or deontological reasons, cannot remain independent, impartial and neutral should refuse or interrupt the mediation process and report to the Prosecuting Counsel, who proceeds with their substitution in accordance with that foreseen in paragraph 1 of Article 3.
3. The criminal mediator has the duty to uphold professional secrecy regarding the contents of the mediation sessions.
4. The criminal mediator is obliged to maintain confidentiality in relation to the procedural information of which he is knowledgeable due to participation in the mediation process.
5. The criminal mediator may not intervene in any form, such as a witness, in any proceedings after the mediation, such as the judicial process or the monitoring of psychotherapeutic accompaniment, whether or not an agreement is reached, even if such procedures are only indirectly related to the mediation undertaken.
6. The supervision of the activity of criminal mediators falls to the commission laid out in paragraph 6 of Article 33 of Law 78/2001, from July 13th.
Article 11
Lists of criminal mediators
1. Lists are available, under the mediation services of the justice of peace, containing the names of persons authorized to act as criminal mediators, with their office address, e-mail and telephone contacts.
2. The Ministry of Justice is responsible for:
a. Developing procedures conducive to the registration of the mediators on the lists;
b. To ensure the maintenance and update of the lists of mediators, as well as their availability to the Prosecuting Counsel;
c. To create a system that guarantees the sequential assignment of the mediators by the Prosecuting Counsel, without prejudice of paragraph 4 of Article 3;
d. To upload criminal mediator lists onto the Ministry of Justice site.
3. The registration on the lists does not invest the criminal mediator with the quality of agent nor does it guarantee the payment of any fixed remuneration by the State.
Article 12
Persons Qualified to Exercise the Role of Criminal Mediator
1. The lists of criminal mediators are filled through a selection process, candidates who meet the following requirements may apply:
a. Over 25 years of age;
b. In full capacity of their civilian and political rights;
c. To have a degree or suitable professional experience;
d. To have completed a course of Criminal Mediation recognized by the Ministry of Justice;
e. To be deemed suitable for the exercise of the activity of criminal mediator;
f. Speak Portuguese fluently.
2. Among other circumstances, an applicant may not register on the official lists if convicted for the practice of intentional crime, even if the sentence is suspended.
3. The criteria for rank and the terms of the selection process are approved by Order in Council of the Ministry of Justice.
Article 13
Remuneration of Criminal Mediators
Tables of remuneration for criminal mediators fall within the scope of the Minister of Justice, supported by funds in the budget of the entity of the Ministry of Justice responsible for promoting the methods of alternative resolution of litigations.
Article 14
Experimental period
1. From the date of application of the present Law and for a period of two years, the criminal mediation system works on an experimental basis within the scope appointed by Order in Council of the Minister of Justice, which equally defines the other terms of delimitation provided by criminal mediation.
2. During the experimental period, the Ministry of Justice shall adopt appropriate measures for monitoring and evaluation of mediation in criminal proceedings.
3. Following the experimental period outlined in paragraph 1, the extension of criminal mediation to other delimitations depends on an Order in Council of the Minister of Justice.
Article 15
Application in time
The present law applies to criminal proceedings initiated after
its enforcement.
Article 16
Enforcement
The present law enters in to force 30 days after publication.
Legislation approved on 12th April 2007 by the President of the Assembly of the Republic, Jaime Gama.
Legislation issued on 30th May 2007 with publication ordered by the President of the Republic, Aníbal Cavaco Silva
Legislation sanctioned on 31st May 2007 by the Prime Minister, José Sócrates Carvalho Pinto de Sousa.
