Portugal

1) Judgements and, where applicable, probation decisions entering into the scope of this Framework Decision (Article 2)

a) Member States are asked to describe the judgments and, where applicable, probation decisions, as defined in Article 2, which have to be recognised by a Member State.

In this regard, Member States are asked to make a separated table for each judgement and each probation decision, entering into the scope of the Framework Decision and indicate for each one the following information.

Conditional release

Name of the judgement or the probation decision

Conditional release
Liberdade condicional

Classification of this judgement or the probation decision

Conditional release

Legal basis of this judgement or the probation decision

Conditional release is provided for in articles 61. to 64. (and by cross-reference articles 52., 53. (no's 1 and 2), 54., 55. (parag. a to c), 56. (no 1) and 57.) of the Criminal Code, approved by the Decree-Law n. 400/82, of 23 September, with the most recent amendment introduced and republished in its entirety by Law no 59/2007, of 4 September.

The execution of the conditional release is provided for in articles 173. to 188. of the Portuguese Enforcement of Sentences Code, approved by Law n. 115/2009, of 12 October.

Definition of this judgement or the probation decision

- Conditional release means that after serving a part of the imprisonment sentence the sentenced person may, under certain circumstances, be released by the judge.
- The judge may impose certain behaviours and forbid others during the conditional release.
- The conditional release lasts for the remaining period of time set for the imprisonment sentence (to the maximum of 5 years) and after that the imprisonment sentence is extinguished.
- If the conditional release is revoked due to the breech of the obligations the sentenced person will serve the remaining time of the sentence.

Legal Conditions of this judgement or the probation decision

The court determines the conditional release if:
- The sentenced person has given his/her consent;
- and, if, in terms of periods of sentenced served:

a) The sentenced person has served half of the imprisonment sentence and a minimum of 6 months, if it is to be expected, considering the circumstances of the case, the previous life, the personality of the agent and its evolution throughout the execution of the sentence, that the person will lead his/her life in a responsible way, without committing crimes and the release is compatible with the preservation of the order and social peace.

b) The sentenced person has served two thirds of the imprisonment sentence and a minimum of 6 months if it is to be expected, considering the circumstances of the case, the previous life, the personality of the agent and its evolution throughout the execution of the sentence, that the person will lead his/her life in a responsible way, without committing crimes;

c) The sentenced person has served 5/6 of the imprisonment sentence, when the sentence exceeds 6 years.

Type of probation measures

The judge may determine (article 64., in articulation with article 52. of the Portuguese Criminal Code) the compliance with the following behaviour rules, among others:
- To live in a certain place;
- To attend certain programs and activities;
- Comply with certain obligations;
- Not to carry out certain professional activities;
- Not to enter certain localities, certain environments or places;
- Not to live in certain places or regions;
- Not to accompany, host or receive certain persons;
- Not to attend certain associations or certain meetings;
- Not to possess certain objects which facilitate the commitment of crimes.

With the prior consent of the sentenced person, the judge may also determine the obligation to undergo therapeutic treatment or treatment for addiction.

If the judge finds it appropriate the conditional release is issued together with a social reintegration plan (Article 64. , in articulation with article 54. of the Portuguese Criminal Code). This plan may include any of the above referred measures and also others such as the obligation to:
- Answer to summons by the judge and the social services;
- Receive visits from the social services and provide them with information and documents on his/her means of support;
- Inform the social services officers about changes of residence, job and any absence/travelling for longer than 8 days;
- Get previous permission from the judge to travel abroad.

Combination of sanctions or measures

All the measures referred above can be combined with one another and the list provided is not a closed one.

Authority responsible for taking such a decision

The judicial court (Enforcement of Sentences Court), after hearing the technical committee, the public prosecutor and the sentenced person (according to article 173. and following of the Portuguese Enforcement of Sentences Code).
1 - The technical committee is chaired by the judge of the Enforcement of Sentences Court with jurisdiction over the location area of the prison and it may include a public prosecutor of the same court.
2 - When taking part in the Technical committee, the public prosecutor may intervene to require or to obtain information he deems necessary for the exercise of his powers.
3 - The members of the technical committee include the director of the prison that has the casting vote, the person responsible for the area of correctional treatment, the head of the surveillance and security and the person leading the social services team with competence in the case.
4 - The judge in the Enforcement of Sentences Court can ask any worker to participate in any meeting of the technical committee, without voting rights, if his cooperation concerning the issues under discussion is deemed useful.
5 - The technical committee meets in the prison.

Authority responsible for supervising

The Directorate-General for Social Reintegration (Direcção-Geral de Reinserção Social) and other services that have intervention in the execution of the conditional release should draw up reports with the frequency determined by the court and whenever there is a relevant change in the behaviour of the sentenced person.

These institutions are also responsible for the communication to the court of any breach of the rules of behaviour established (according to article 184. of the Portuguese Enforcement of Sentences Code).

The Directorate-General for Social Reintegration has competence to:
- Contribute to the definition of the criminal policy, particularly in the areas of the social reintegration of young people and crime prevention;
- Ensure technical support to the courts when taking decisions in criminal and juvenile protection proceedings;
- Ensure the implementation of measures of educational and custodial sentences and alternative measures to imprisonment;
- Collaborate with the Directorate-General of Prison Services in the preparation of probation and support during the probation time;
- Ensure the implementation of sentences and measures that require electronic monitoring;
- Ensure the management of the electronic monitoring;
- Ensure the management of educational centres and other facilities for the social reintegration of young people;
- Contribute to the development of instruments of international judicial cooperation and ensure the procedures arising from conventions to which the Directorate-General is the central authority;
- Contribute to a greater community involvement in the administration of criminal justice and protecting education, through cooperation with other public and private institutions or citizens that pursue an aim of crime prevention and social reintegration

Authority responsible in case of infringement

Judicial court (Enforcement of Sentences Court)

- The court of enforcement of sentences has the competence to ensure the rights of prisoners, ruling on the legality of the decisions of prison services, as provided for by law.

- After the decision that has determined the application of a sentence or measure involving deprivation of liberty has become res judicata the court for enforcement of sentences has the competence to monitor and supervise its execution and decide on its modification, substitution and revocation, without prejudice to Article 371.-A of the Criminal Procedure Code.

- Another competence of the Enforcement of Sentences Court is to monitor and supervise the execution of the provisional arrest and detention. Its decisions have to be communicated to the court that has ordered the provisional measures.

- Without prejudice to other legal provisions the Enforcement of Sentences Court is competent, according to the matter to:
a) approve individual plans of rehabilitation and treatment or rehabilitation of irresponsible and non accountable people or persons suffering from a mental disorder and amendments thereto;
b) grant and revoke authorizations to leave the prison during a certain period of time;
c) grant and revoke conditional releases and adjustment to conditional releases;
d) determine the sentence of deportation, declaring the extinction of the imprisonment sentence and determine the advance execution of the sentence of deportation;
e) summon the Technical Committee whenever it seems necessary or when it is provided for by law;
f) rule on appeals concerning the decisions of prison services;
g) determine what to do with the retained mail;
h) determine what to do with the objects seized from the prisoners;
i) decide on the modification of the sentence of imprisonment for prisoners suffering from serious illness, progressive and irreversible or serious and permanent disability or advanced age, and the replacement or revocation of its terms;
j) order the execution of a continuous imprisonment regime in cases where the sentenced person does not show up at the prison after a day release or in case of a part time imprisonment regime was applicable;
l) review and extend the security measure of internment for non accountable people;
m) decide on the performance of community service and on its repeal, in cases of execution of a security measure followed by a sentence that implies deprivation of liberty;
n) determine the relocation or suspension of the imprisonment sentence in case of a supervening mental disorder and provide for the review of the sentence;
o) determine the compliance with the remainder of the sentence or the continuation of internment for the same time, in the case of repeal of the sentence of community service or conditional release , in cases of execution of a security measure followed by a sentence that implies deprivation of liberty;
p) declare the termination of the changes to the normal execution of the sentence in case of simulation from a mental disorder;
q) state the extinction of a sentence of imprisonment that would fit the particular crime committed, in cases of conviction to an indeterminate sentence, if the probation has been refused or revoked;
r) declare extinct the penalty of imprisonment, the sentence for unspecified security measure and internment;
s) to issue warrants of arrest and release;
t) inform the victim of the prisoner's release or escape, as provided in articles 23 and 97;
u) lead the proceeding of granting and revoking of the pardon and proceed to its implementation;
v) issue the declaration of contumacy and order the seizure of property, if a convict intentionally hinders, totally or in part, the execution of imprisonment or of a measure of internment;
x) decide on the provisional deletion of a fact or decision registered on the criminal record;
z) decide on the appeals on the legality of the transcription to certificates of criminal record.

Suspension of enforcement of the sentence

Name of the judgement or the probation decision

Suspension of enforcement of the sentence
Suspensão da execução da pena

Classification of this judgement or the probation decision

Suspended sentence

Legal basis of this judgement or the probation decision

The suspension of the enforcement of sentences is provided for in articles 50. to 57. of the Criminal Code, approved by the Decree-Law n. 400/82, of 23 September, with the most recent amendment introduced and republished in its entirety by Law no 59/2007, of 4 September.

Definition of this judgement or the probation decision

The suspension of enforcement of a sentence means that the judge pronounces a sentence (in cases where the penalty of imprisonment is of maximum 5 years) but suspends the execution of that sentence because he considers, after taking into account a set of conditions (infra), and attending to the circumstances of the case, that the mere reprimand of the act and the threat of prison are adequate and enough to fulfil the ends pursued by the penalty.

The suspension lasts for the period of time set in the sentence for the imprisonment and in no case for a period under one year (article 50,, n. 5 of the Portuguese Criminal Code).

During the period of suspension the sentenced person may have to comply with some rules and duties determined by the judge (articles 51. and 52. of the Portuguese Criminal Code).

Within this period, if the sentenced person commits new offences or violates the conditions in which the suspension of the enforcement of the sentence was decided upon or the person commits a crime and, for this, is convicted (and it is showed that the objectives of the suspension of the sentence can no longer be accomplished), the suspension may be revoked and the sentence may still be executed (article 56. of the Portuguese Criminal Code)

At the end of a successful period of the suspension of the sentence, the execution of the sentence can no longer be enforced, as it is declared and extinguished (article 57. of the Portuguese Criminal Code).

Legal Conditions of this judgement or the probation decision

As above mentioned:
- The sentence has to be an imprisonment sentence which does not exceed 5 years;
- The judge takes into account the personality, life conditions, prior behavior of the sentenced person and circumstances of the crime and suspends the execution if, considering all that, the reprimand of and threat of imprisonment seem sufficient and adequate to fulfill the ends pursued by the penalty..
- The judge determines the duties and rules of behavior with which the sentenced person has to comply.
- The suspension lasts for the same period of time as the sentence of imprisonment but never for les than a year.
- The decision has to specify the reasons for the suspension and its conditions.

Type of probation measures

The judge may determine the compliance with the following duties, among others (Article 51. of the Portuguese Criminal Code):
- To compensate financially for the prejudice caused by the offence;
- To provide moral satisfaction to the offended;
- To deliver to public or private welfare institutions or the State a monetary contribution or another contribution of the same value.

The judge may also determine the compliance with the following behaviour rules, among others (Article 52. of the Portuguese Criminal Code):
- To live in a certain place;
- To attend certain programs and activities;
- To comply with certain obligations;
- Not to carry out certain professional activities;
- Not to enter certain localities, certain environments or places;
- Not to live in certain places or regions;
- Not to accompany, host or receive certain persons;
- Not to attend certain associations or certain meetings;
- Not to possess certain objects which facilitate the commitment of crimes

With the prior consent of the sentenced person, the judge may also determine the obligation to undergo therapeutic treatment or treatment for addiction.

If the sentenced person is under the age of 21 or the prison sentence exceeds 3 years and whenever the judge finds it appropriate the suspension is issued together with a social reintegration plan. This plan may include any of the above mentioned measures and also others, such as the obligation to:
- Answer to summons by the judge and the social services;
- Receive visits from the social services and provide them with information and documents on his/her means of support;
- Inform the social services officers about changes of residence, job and any absence/traveling for longer than 8 days;
- Get previous permission from the judge to travel abroad.

Combination of sanctions or measures

All the measures referred above can be combined with one another.

Authority responsible for taking such a decision

Judicial court.

Authority responsible for supervising

All the authorities or offices which are responsible for supporting the sentenced person in the fulfilment of his duties, namely the Directorate-General for Social Reintegration, should supervise and notify the judge of any breach of the duties or behaviour rules (Article 495., n. 1 of the Portuguese Criminal Procedure Code).

Authority responsible in case of infringement

Judicial court.

Replacement of the imprisonment sentence

Name of the judgement or the probation decision

Replacement of the imprisonment sentence

Substituição da pena de prisão

Classification of this judgement or the probation decision

Alternative sanction

Legal basis of this judgement or the probation decision

Criminal Code, approved by the Decree-Law n 400/82, 23 September, with the most recent amendment introduced and republished in its entirety by Law no 59/2007, of 4 September - article 43..

Definition of this judgement or the probation decision

Here there are two possibilities:

a) If the imprisonment sentence does not exceed 1 year, the sentence may be substituted by a fine or another applicable sanction which does involve privation of liberty, (article 43, no 1 of the Portuguese Criminal Code)

b) When the imprisonment sentence does not exceed 3 years, the judge may replace the imprisonment with another sanction such as the prohibition, in a period of 2 to 5 years, of the exercise of the profession, duty or activity, public or private sector, when the crime has been committed by the defendant in the respective exercise, whenever the court concludes that, by this mean, the punishment purposes are accomplished in an adequate and sufficient manner.

Legal Conditions of this judgement or the probation decision

a) In the case above mentioned in a), the sentence of imprisonment cannot exceed one year and the enforcement of the sentence cannot be a condition considered necessary to prevent the commission of future crimes;

b) When the imprisonment sentence does not exceed 3 years, and as above mentioned: the judge may replace the imprisonment sentence with the prohibition to carry out a professional activity, or a private or public function or activity if:
- The crime was committed while exercising that professional activity, private or public function or activity;
- The imprisonment sentence does not exceed 3 years;
- The judge considers that the alternative sanction is adequate and enough to fulfill the objectives of the penalty.

Type of probation measures

N/A.

Combination of sanctions or measures

N/A.

Authority responsible for taking such a decision

Judicial court.

Authority responsible for supervising

The sentence is notified to the director of the sentenced person in case of prohibition of exercise of a public function and in case of prohibition of exercise of a professional activity to the competent authority when the profession depends upon a public authorization or approval. (Article 499. of the Portuguese Criminal Procedure Code)

Authority responsible in case of infringement

Judicial court.

House arrest

Name of the judgement or the probation decision

House arrest
Regime de permanência na habitação

Classification of this judgement or the probation decision

Alternative sanction

Legal basis of this judgement or the probation decision

Criminal Code, approved by the Decree-Law n. 400/82, of 23 September, with the most recent amendment introduced and republished in its entirety by Law no 59/2007, of 4 September - article 44.

Definition of this judgement or the probation decision

In certain cases the judge may determine that the imprisonment sentence is replaced with the obligation to stay at home (house arrest). This obligation is supervised using technical means of remote control (electronic monitoring).

Legal Conditions of this judgement or the probation decision

The judge may determine the house arrest if:
- The sentenced person gives his/her consent;
- The judge considers that this alternative sanction is adequate and enough to fulfill the objectives of the penalty;
- The imprisonment sentence does not exceed one year;
- The imprisonment sentence does not exceed two years if the circumstances of the case advise against the imprisonment, namely because the sentenced person:
o Is pregnant;
o Is under the age of 21 or over the age of 65;
o Is ill or disabled;
o Has a dependent minor;
o Has a relative exclusively dependent on him/her.

Type of probation measures

N/A.

Combination of sanctions or measures

N/A.

Authority responsible for taking such a decision

Judicial court.

Authority responsible for supervising

The Directorate-General for Social Reintegration (Ministry of Justice) is responsible for the supervision of the electronic monitoring system. (Article 5. of the Law n. 122/2009, 20 August, that regulates Electronic monitoring).

Authority responsible in case of infringement

Judicial court.

Community service

Name of the judgement or the probation decision

Community service
Prestação de trabalho a favor da comunidade

Classification of this judgement or the probation decision

Alternative sanction

Legal basis of this judgement or the probation decision

Criminal Code, approved by the Decree-Law n. 400/82, of 23 September, with the most recent amendment introduced and republished in its entirety by Law no 59/2007, of 4 September - article 58. and 59..

Definition of this judgement or the probation decision

Under certain circumstances the judge may replace the imprisonment sentence with a sanction according to which the sentenced person works for the community. This sanction means that the sentenced person provides free services that serve the interests of the community to the state or other public institutions.

Legal Conditions of this judgement or the probation decision

The judge may take such judgment when:
- The sentenced person gives his/her consent;
- The imprisonment sentence does not exceed 2 years;
- He considers that it is adequate and enough to fulfill the objectives of the penalty

Type of probation measures

The judge may impose the following measures:
- Obligation to live in a certain place;
- Obligation to attend certain activities;
- Obligation not to carry out certain professional activities;
- Obligation not to enter certain localities, places or defined areas;
- Obligation not to live in certain places or regions;
- Obligation not to accompany, host or attend certain persons;
- Obligation not to attend certain associations or certain meetings;
- Obligation not to possess certain objects that facilitate the commitment of crimes.
With the prior consent of the sentenced person, the judge may also determine the obligation to undergo therapeutic treatment or treatment for addiction.

Combination of sanctions or measures

This judgement may be combined with the above mentioned measures. (Article 58., n. 6 of the Portuguese Criminal Code).

Authority responsible for taking such a decision

Judicial court.

Authority responsible for supervising

The Directorate-General for Social Reintegration is responsible for sending reports to the tribunal whenever there are irregular occurrences (Article 498. of the Portuguese Criminal Procedure Code).

Authority responsible in case of infringement

Judicial court.

2) Probation measures and alternative sanctions (Article 4)

In Article 4 of the Framework Decision types of probation measures and alternative sanctions are stated. Member States are asked to describe the probation measures and alternative sanctions attached to those judgements and probation decisions:

a) In the table below please describe how probation measures and alternative sanctions set out in Article 4.1 are reflected in your domestic law and please give a description of each of them.

Probation measures / alternative sanctions

Explanation

Obligation for the sentenced person to inform a specific authority of any change of residence or working place

The judge may impose the obligation to inform the authorities and social services of any change of residence or working place when he draws up a reintegration plan to be followed. (Articles 51, 53. and 54., n. 3, c) of the Portuguese Criminal Code)

Such obligation, because it is part of a reintegration plan, may be determined by the judge when he suspends the enforcement of a sentence or determines the conditional release.

Obligation not to enter certain localities, places or defined areas in the issuing or executing State

The obligation not to enter certain places or areas is one of the rules of behaviour that the judge may impose in case of suspension of the enforcement of a sentence or conditional release. (Articles 52., n. 2, b) and 51., n. 2 - 4, of the Portuguese Criminal Code)

This obligation cannot be imposed if the compliance with it is more than what can reasonably be demanded of the sentenced person.

This behaviour rule may be modified during the suspension or conditional release if the circumstances justify such change.

The judge may determine that the authorities and social services support the sentenced person and supervise the compliance with this obligation.

Obligation containing limitations on leaving the territory of the executing State

In Portugal the judge may determine the obligation to ask for previous permission of a judge to leave the territory of the state. (Articles 52, 53. and 54., n.3, d) of the Portuguese Criminal Code)

Such obligation may be determined by the judge when he suspends the enforcement of a sentence or determines the conditional release, if he draws up a reintegration plan.

Instructions relating to behaviour, residence, education and training, leisure activities, or containing limitations on or modalities of carrying out a professional activity

The judge can establish the following instructions relating to behaviour. (Articles 52., n.1, a), b), n. 2, a), c), e) and 51., n. 2-4, of the Portuguese Criminal Code):
- Obligation to live in a certain place;
- Obligation to attend certain activities;
- Obligation not to carry out certain professional activities;
- Obligation not to live in certain places or regions;
- Obligation not to attend certain associations or certain meetings;

These obligations may be imposed in case of suspension of the enforcement of a sentence or conditional release but cannot be imposed if the compliance with it is more than what can reasonably be demanded of the sentenced person.

These instructions may be modified during the suspension or conditional release if the circumstances justify such change.

The judge may determine that the authorities and social services support the sentenced person and supervise the compliance with the above mentioned rules.

Certain instructions relating to behaviour may also be determined as a replacement of the imprisonment sentence.
The judge may replace the imprisonment sentence with the prohibition to carry out a professional activity, or a private or public function or activity if the crime was committed while exercising that professional activity, private or public function or activity and the imprisonment sentence does not exceed 3 years. (Article 43., n. 3 of the Portuguese Criminal Code)

Obligation to report at specified times to a specific authority

The sentenced person may have to report at a specific time to the judge or the social services when he is summoned to do so. (Articles 53. and 54., n. 3, a) of the Portuguese Criminal Code)

The judge determines this possibility but doesn't establish the time and place right away, leaving the decision to summon the sentenced person if it turns up to be necessary.

This obligation may be imposed when the judge draws up a reintegration plan.

Such obligation may be determined by the judge when he suspends the enforcement of a sentence or determines the conditional release, if he draws up a reintegration plan.

Obligation to avoid contact with specific persons

One of the behaviour rules that the judge may determine in case of suspension of the enforcement of a sentence or conditional release is the obligation not to accompany, host or receive certain persons. (Articles 52., n. 2, d) and 51., n. 2-4, of the Portuguese Criminal Code)

This obligation cannot be imposed if the compliance with it is more than what can reasonably be demanded of the sentenced person.

This behaviour rule may be modified during the suspension or conditional release if the circumstances justify such change.

The judge may determine that the social services support the sentenced person and supervise the compliance with this obligation.

Obligation to avoid contact with specific objects, which have been used or are likely to be used by the sentenced person with a view to committing a criminal offence

In case of suspension of the enforcement of a sentence or conditional release the judge may determine the obligation not to possess certain objects that facilitate the commitment of crimes. . (Articles 52., n. 2, f) and 51., n. 2-4, of the Portuguese Criminal Code)

This obligation cannot be imposed if the compliance with it is more than what can reasonably be demanded of the sentenced person.

This behaviour rule may be modified during the suspension or conditional release if the circumstances justify such change.

The judge may determine that the social services support the sentenced person and supervise the compliance with this obligation.

Obligation to compensate financially for the prejudice caused by the offence and/or an obligation to provide proof of compliance with such an obligation

The judge may impose an obligation to compensate financially for the prejudice caused by the offence when he decides to suspend the enforcement of the sentence. . (Article 51., n. 1, a) and n.os 2-4, of the Portuguese Criminal Code)

This obligation cannot be imposed if the compliance with it is more than what can reasonably be demanded of the sentenced person.

This obligation may be modified during the suspension of the enforcement of the sentence if the circumstances justify such change.

The judge may determine that the social services support the sentenced person and supervise the compliance with this obligation.

Obligation to carry out community service

Under certain circumstances the judge may replace the imprisonment sentence with a sanction according to which the sentenced person works for the community. This sanction means that the sentenced person provides free services that serve the interests of the community to the state or other public institutions. (Articles 58. and 59. of the Portuguese Criminal Code and article 496. of the Portuguese Criminal Procedure Code)

The judge may take such judgement when:
- The sentenced person gives his/her consent;
- The imprisonment sentence does not exceed 2 years;
- He considers that this sanction is adequate and enough to fulfil the finalities of the penalty.

This judgement may be combined with the following measures:
- Obligation to live in a certain place;
- Obligation to attend certain activities;
- Obligation not to carry out certain professional activities;
- Obligation not to enter certain localities, places or defined areas;
- Obligation not to live in certain places or regions;
- Obligation not to accompany, host or attend certain persons;
- Obligation not to attend certain associations or certain meetings;
- Obligation not to possess certain objects that facilitate the commitment of crimes.

With the prior consent of the sentenced person, the judge may also determine the simultaneous obligation to undergo therapeutic treatment or treatment for addiction.

Also, during the suspension of the enforcement of the sentence, the judge may impose as an obligation to provide something "of the equivalent value" (article 51., n. 1, c) of the Criminal Code), which is commonly understood as community service.

Obligation to cooperate with a probation officer or with a representative of a social service having responsibilities in respect of sentenced persons

According to article 54., n. 3, a) and b) of the Portuguese Criminal Code, the sentenced person may have to:
- Answer to summons by the social services;
- Accept visits from the social services;
- Provide information and documents on his/her means of support;

These obligations may be imposed when the judge draws up a reintegration plan. (Article 53. of the Portuguese Criminal Code)

He may draw up a reintegration plan, and therefore impose these obligations, when he suspends the enforcement of the sentence or determines a conditional release.

Obligation to undergo therapeutic treatment or treatment for addiction

The judge may determine the obligation to undergo therapeutic treatment or treatment for addiction, but it depends on the prior consent of the sentenced person. (Articles 52., n. 3 and 51., n. 2-4, of the Portuguese Criminal Code)

This obligation cannot be imposed if the compliance with it is more than what can reasonably be demanded of the sentenced person.

This obligation may be modified during the suspension of the enforcement of the sentence if the circumstances justify such change.

The judge may determine that the social services support the sentenced person and supervise the compliance with this obligation.

b) In your domestic law are there any probation measures and alternative sanctions which are not covered by Article 4.1?

- If yes, please define them and provide a description for each of them.

Other probation measures/alternative sanctions existing in your domestic law

Explanation

To provide moral satisfaction to the offended

When the judge suspends the enforcement of the sentence he can determine that the sentenced person should provide moral satisfaction to the offended. (Article 51., n. 1, b) and n.os 2-4, of the Portuguese Criminal Code)

This obligation cannot be imposed if the compliance with it is more than what can reasonably be demanded of the sentenced person.

This obligation may be modified during the suspension of the enforcement of the sentence if the circumstances justify such change.

The judge may determine that the social services support the sentenced person and supervise the compliance with this obligation.

To deliver to public or private welfare institutions or the State a monetary contribution

When the judge suspends the enforcement of the sentence he can determine that the sentenced person should deliver a monetary contribution to public or private welfare institutions or the State. (Article 51., n. 1, c) and n.os 2-4, of the Portuguese Criminal Code)

This obligation cannot be imposed if the compliance with it is more than what can reasonably be demanded of the sentenced person.

This obligation may be modified during the suspension of the enforcement of the sentence if the circumstances justify such change.

The judge may determine that the social services support the sentenced person and supervise the compliance with this obligation.

c) Does your domestic law provide for a specific treatment regarding any category of offences (e.g. sexual offences, domestic violence)?

No, in the context of the measures included in the framework decision under analysis, there is only the general regime above mentioned, set out in article 52., n. 3 of the Portuguese Criminal Code, concerning therapeutic treatment or treatment for addiction, which can only be applied with the consent of the convicted person.

In addition to the legal provisions mentioned above and in accordance with Article 38. of the Law No. 112/2009 of 16 September, which establishes the legal regime applicable to domestic violence prevention, protection and assistance of victims and repeals Law No. 107/99, of 3 August, and Decree-Law No. 323/2000 of 19 December, it is also provided for:

Measures to support the reintegration of the agent

1 - The State should provide the necessary conditions for the psychological and psychiatric support of the agents convicted for crimes of domestic violence, and of those whose procedure has been temporarily suspended, with their consent.

2 - There are defined and implemented programs for perpetrators of crimes in the context of domestic violence, particularly concerning the suspension of the imprisonment.

3) Electronic monitoring

Does your national law provide for the possibility to use Electronic Monitoring?

Yes, for adults (over 16 years old).

Is Electronic Monitoring part of the classification provided for in Article 2 of this Framework Decision (suspended sentence, conditional sentence, conditional release or alternative sanction)?

Electronic monitoring is used to (a) control pre-trial house arrest as a possible alternative to pre-trial custody; (b) to supervise house arrest as a sanction; (c) to supervise pre-parole (which can be anticipated up to a year before the date due for parole); (d) and it can also be used to enforce a ban on contact between the offender and victim of domestic violence (reverse tagging pilot).

Is Electronic Monitoring considered as an execution modality of imprisonment, if other than conditional release?

Yes for (a), (b) and (c)

Is Electronic Monitoring considered a way of applying a probation measure or as a probation measure in itself?

It is a way of applying a probation measure for (a) and a probation measure in it self for (b) and (c).

What are the technical means provided for in your Member State that enables the use of the Electronic Monitoring (e.g. GPS)?

Portugal uses radio frequency technology.

Is Electronic Monitoring dependant on particular conditions?

Yes.
For (a): In the case of pre-trial house arrest:
- The defendant must give his/her consent, as well as anyone with whom he/she cohabits
- The crimes in question are punishable with three or more years in prison
For (b): In the case of house arrest the court can determine Electronic Monitoring as long as:
- The offender gives his/her consent, as well as anyone with whom he/she cohabits
- The court considers this sanction as adequate and sufficient to fulfil the objectives of the penalty;
- The imprisonment sentence does not exceed one year, or two if the circumstances of the case advise against imprisonment, namely due to the offender being pregnant, under the age of 21 or over 65, ill or disabled, with a dependant minor or a relative exclusively dependant on him/her.
For (c): In cases of pre-parole:
- The offender must give his/her consent, as well as anyone with whom he/she cohabits;
- The court is certain that the offender is able to lead his/her life in a responsible way without committing crimes;
- Early release must be compatible with peace and order.

4) Formalities

Member States are invited to sum up the documents that the national competent authorities need in order to take at national level a judgement and, where applicable, a probation decision (e.g. criminal record, social inquiries, medical expertise).

For the determination of the conditional release following documents are necessary:
- A report from the prison services containing an evaluation of the prisoner's personality evolution during the period of imprisonment, of the skills acquired during that period, of his behaviour and of his relation to the committed crime.
- A report from the social services containing an evaluation of the need for social reintegration, perspectives as to the family, social and professional environment and the conditions on which the conditional release should be dependent, bearing in mind the need to protect the victim.

Law No. 122/99 of August 20, which governs electronic monitoring, provided for in Article 201 of the Criminal Procedure Code, provides for the need to always have updated information, prepared by the Directorate-General for Social Reintegration, in cases of execution of a sentence or measure which requires the use of technical means of remote control to verify the compliance therewith, e.g. the house arrest provided for in Article 201. of the Criminal Procedure Code.

"Article 5
Implementing authority
1 - It is up to the Social Reintegration Institute to proceed with the implementation of the electronic monitoring.
2 - For the purposes of the preceding paragraph, the Social Reintegration Institute provides updated information to the judicial authorities on the existence of the necessary means.
3 - The Social Reintegration Institute may use the services of private entities to install, operate and maintain the technical means used in electronic monitoring.
4 - If, during the enforcement, circumstances occur which may justify the intervention of the judge, the Social Reintegration Institute prepares information and notifies it to the judge. "

The other judgements mentioned in question one do not require any special documents.

 

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