The impetus for "Law no. 21/2007 of 12 June" came from positive experiments with mediation in two different civil venues, the Family Mediation Office of Lisbon and the Julgados de Paz (special small claims courts). The fact that 30% of the litigation brought to the Julgados was resolved through mediation thereby avoiding trial led to a pilot study of the use of mediation in cases of minor crimes.  Other experiments with mediation included the use of mediation in response to juvenile offending under the Educational Guardianship Law (Lei Tutelar Educativa – "Law 166/99, of 14 September 1999"),

"Law no. 21/2007 of June 12" provides for the use of mediation to resolve cases where either there is enough evidence against the defendant to proceed to trial or the defendant has pled guilty. A prosecutor can refer a case to mediation at any stage of the preliminary investigation as long as there is sufficient evidence against the defendant to proceed to a trial.  Crimes eligible for mediation include: slander, robbery, fraud, and simple assault. Ineligible crimes include assault against law enforcement officers in the line of duty, sexual offences and offences against victims younger than sixteen-years of age.  Also, crimes carrying a penalty of more than five years in prison can not be referred to mediation.

In referring cases to mediation, the prosecutor must take the classification of the crime into account: private, semi-public, or public. For crimes classified as semi-public or private (requiring the victim to file a complainant) the prosecutor can send the proceedings directly to the mediation. The mediator then explains the process to the victim and offender. If both parties agree, the mediation process will move forward. If not, it moves into the judicial system. Mediation agreements are reported to the prosecutor and considered to be similar to a stay of the proceedings. If the offender does not fulfil the agreement, then the victim can re-open the proceedings.

In cases of public crime (requiring prosecution even without a complaint from the victim) the prosecutor can decide to send the case to mediation after the preliminary investigation is concluded. The process is similar to that in semi-public crimes in that the mediator explains the process and the parties choose whether or not to go to mediation.  Upon receipt of the mediation agreement, the prosecutor temporarily suspends the proceedings giving the offender the opportunity to fulfil the obligations of the agreement. If there is not an agreement, the case proceeds to trial. If the offender completes the agreed requirements, the case is filed. If the offender does not complete the agreement, then the it goes to trial.

Once a case is referred to mediation, participants have three months to complete the process. Otherwise, the case will proceed to the trial phase. Mediation agreements are to be voluntarily agreed upon by the participants and may not include incarceration, sanctions that violate the dignity of the offender, or include instalments that last more than six months. The settlements are flexible and may contain restitution, an apology, and rehabilitation services for the offender.

The legislation requires a two year pilot period to establish the mechanisms for the criminal mediation services. After this two year period, the services will be expanded by the Ministry of Justice.


The legislation is available in Portuguese from the Ministry of Justice.

February 2008