Law n.º 45/96 of September 3 : Amending Decree-Law n.º 15/93 of January 22 : Anti-Drug Legislation

Under the terms of Article 164, sub-paragraph d), Article 168, paragraph 1, subparagraphs b), c) and q), and Article 169, paragraph 3, of the Constitution, Parliament rules as follows:

Article 1

Articles 24, 28, 35, 39, 42, 46, 59, 60 and 70 of the Decree-Law N. 15/93, of 22 January, shall read as follows:

Article 24

Aggravation

The sanctions described in Articles 21, 22 and 23 shall be aggravated by one third in both their lower and upper limits where:
a. ...............................................................................................

b. ...............................................................................................

c. ...............................................................................................

d. ...............................................................................................

e. ...............................................................................................

f. ...............................................................................................

g. ...............................................................................................

h. ...............................................................................................

i. ................................................................................................

j. ................................................................................................

l. ................................................................................................

Article 28

Criminal associations

1. Any person who promotes the creation of, creates or funds a group, an organization or an association comprising two or more persons for the purpose of concertedly committing any of the offences described in Articles 21 or 22, shall be liable to imprisonment for a term of 10 to 25 years.

2. ..............................................................................................

3. Any person who acts as head or steers any group, organization or association as mentioned in paragraph 1, shall be liable to imprisonment for a term of 12 to 25 years.

4. ..............................................................................................

Article 35

Forfeiture of property

1. Any object that has been used, or is intended to be used, as an instrumentality for any offence described in this law, or any object that has been produced as a result of such an offence, shall be confiscated.

2. ..............................................................................................

3. ..............................................................................................

Article 39

Destination of goods confiscated

1. The rewards, the property, the rights and the benefits confiscated under the terms of Articles 35 to 38 shall be apportioned as follows and revert to:
a. .......................................................................................

b. .......................................................................................

c. .......................................................................................

2. ..............................................................................................

3. ..............................................................................................

4. ..............................................................................................

Article 42

Reception and treatment of consumers

1. The Ministry of Health, through its departments, shall take whatever steps are necessary in order to ensure that drug addicts and other drug consumers are received and heard free of charge.

2. The persons subjected to treatment pursuant to the provisions of this law, whether it be in the framework of ongoing proceedings or in the framework of a suspension in the execution of the sentence, shall be given urgent access to the pertinent health services.

3. The Minister of Health shall issue an order stating the conditions under which private entities may receive and provide treatment for drug addicts, as well as the control measures to which they shall be subjected.

Article 46

Drug addicts remanded in custody
or serving a prison sentence

1. The prison services, in co-operation with the health services, shall bear the duty to ensure that ways and means are made available for the treatment of drug addicts remanded in custody or serving a prison sentence.

2. Where drug addiction is detected at a time when the person concerned is either remanded in custody or serving a prison sentence, the police or the prison services shall communicate the fact to the Public Prosecutor so that the latter can undertake adequate measures, without prejudice to any urgent measures that the situation might impose.

Article 59

Non-punishable acts

1. Where, for the purposes of crime prevention or the fight against crime, any criminal investigation officer, or any person acting under the supervision of the Polícia Judiciária , without revealing his status and identity, receives delivery of, carries, keeps, transports or, upon request of any person engaged in such activities, delivers narcotic drugs, psychotropic substances, precursors or any chemical substance capable of being used to illegally produce, directly or through a third person, drugs or precursors, such acts shall not be punishable.

2. The acts mentioned in the preceding paragraph may be committed only subject to prior authorization by the competent judicial authority; decisions on requests for authorization shall be delivered within five days of the request; authorizations may only be granted for a limited period of time.

3. If, for reasons of urgency, it is not possible to obtain the authorization mentioned in the preceding paragraph, validation of the acts must be sought in the first following working day; grounds for urgency must be produced.

4. The Polícia Judiciária shall report to the competent judicial authority on the acts the officer or person, within 48 hours, at the latest, of such acts having been committed.

Article 60

[...]

1. ..............................................................................................

2. Subject to the request being individualized and sufficiently concretized, communication of that information or surrender of those documents, either stocked manually or computer-based, may not be refused by any entities, public or private, in particular by banking or financial or similar institutions, civil law partnerships, commercial companies, or any tax or register's departments.

3. The request mentioned in the preceding paragraphs must come from the competent judicial authority; when the request is addressed to a banking, financial or similar institution, it shall be forwarded through the Banco de Portugal .

4. The requirement set out in paragraph 2, namely that the request be individualized and sufficiently concretized, may be deemed to be met if the identification of the suspect or the accused person is communicated.

Article 70

Prevention

1. The Government shall be empowered to plan, enforce and evaluate the action, measures and specific programs for the prevention of drug consumption, with due consideration for their multidisciplinary nature.

2. The Ministry of Education shall in particular be empowered to:
a. .....................................................................................

b. .....................................................................................

c. ....................................................................................."

Article 2

Decree-Law No. 15/93, of 22 January, shall be supplemented by the provisions of Articles 36-A, 49-A, 59-A, and 70-A that shall read respectively as follows:

Article 36-A

Rights of bona fide third parties

1. Any third party who claims rights over property or assets that are subject to confiscation or other legal measures applicable with respect to persons accused of any offence described in this law, upon request, shall be admitted to protect his rights in the framework of the proceedings, if he pleads bona fide and submits evidence thereof.

2. Bona fide means excusable ignorance that the object in question was a qualified object under Article 35, paragraph 1.

3. The request mentioned in paragraph 1 is appended to the file; the Public Prosecutor is notified thereof and may contest within a period of ten days.

4. Upon having taken the measures that he deems fit, the judge shall take a decision on the request.

5. However, should the determination of the rights claimed prove to be a complex matter, or should it hamper the normal development of the proceedings, the judge may decide that the matter be allocated to a civil court.

Article 49-A

Conditional release

Where a person is sentenced to a term of imprisonment of more than five years, for any offence described in Articles 21, 22, 23 or 28 above, that person may only be conditionally released after having served two thirds of the sentence and once the requirements provided for in Article 61, paragraph 2, sub-paragraphs a) and b) of the Criminal Code have been met.

Article 59-A

Protection of undercover agents

1. The judicial authority shall not order that the report mentioned in paragraph 4 of the preceding Article be joined to the file unless it deems that that is absolutely indispensable for purposes of evidence.

2. The judicial authority may stay its decision on the determination of the nature of the need to join the report to the file, until the end of the inquiry or the investigation; in the meantime, the report shall be registered with and kept by the Polícia Judiciária.

3. Where the judge decides that an undercover agent, be it an officer or another person, must appear at the hearing of the court trial, the provisions of the second part of paragraph 1 of Article 87 of the Code of Criminal Procedure shall be observed.

Article 70-A

Annual report

1. Every year, not later than 31 March, the Government shall submit to Parliament a report on the state of the nation with respect to drug addiction.

2. The purpose of the report is to provide Parliament with detailed information on the state of the nation with respect to drug addiction and drug trafficking, as well as information on the activities of the public services involved in primary prevention, treatment, social rehabilitation of drug addicts, prevention of drug trafficking and fight against drug trafficking."

Article 3

[Introduces amendments to Article 156
of Decree-Law No. 295-A/90, of 21 September]

Article 4

The provisions of Article 49-A of Decree-Law No. 15/93, of 22 January, with the wording provided for in Article 2 above, shall not apply to persons other than persons sentenced for offences committed after the date of entry into force of this law.