Fiches Belges: Portugal

Is this measure possible in your Member State under International Judicial Cooperation?

Police agents of the requested State acting under undisclosed capacity and identity, may carry out undercover criminal investigations for the purpose of preventing or punishing catalog offences, as long as they are proportional to the purpose of the investigation and the gravity of the crime. The offences where this measure is admissible are as follows: (a) murder, provided that the offender is unknown;(b) offences against freedom and against sexual self-determination punishable with imprisonment for a term of five years or more in abstracto, in so far as the offender is unknown, or where a person aged 16 or under or other incapable persons are expressly referred to as being aggrieved by the offence; (c) offences relating to stolen-vehicle forgery and trafficking; (d) slavery, unlawful detention and kidnapping or hostage-taking; (e) terrorist organizations and terrorism; (f) unlawful seizure of aircraft, vessel, train or any means of transport by road, or endangering the safety of air, sea or railway goods or passengers, punishable with imprisonment for a term of eight years or more in abstracto;(g) involving bombs, grenades, explosive substances or devices, firearms and booby-trapped objects, nuclear, chemical or radioactive weapons;(h) robbery at credit institutions, treasury offices and post offices; (i) criminal conspiracy; (j) concerning trafficking in narcotic drugs and psychotropic substances; (l) laundering of money, other assets or products; (m) corruption, embezzlement, undue pecuniary advantage in business transactions and trading in influence; (n) fraudulently obtaining of or wrongfully misappropriating grants or subsidies; (o) economic and financial offences committed in an organized manner or by computer-related means; (p) economic and financial offences committed at international or trans-national levels; (q) counterfeiting currency, securities, revenue stamps, postage stamps and the like securities or passing them off; (r) relating to securities market (Law 101/2001 of 25 August).The Law on Cibercrime (L109/2009 15/09) also admits covert actions, in the terms of Law 101/2001, for the crimes a) computer related forgery, computer related fraud, illegal access, illegal interception, data interference, infringement of copyrights b) commited through a computer system, punishable with imprisonenment higher than 5 years,or sexual crimes when the offended persons are underage or incapacitaded people, agravated fraud, computer fraud, racial, gender or religious discrimination, financial infractions, as well as crimes against Author's Rights.

International legal framework applicable for this measure in your Member State

Second Additional Protocol to the European Convention on Mutual Assistance in Criminal Matters (CoE), Convention on Mutual Assistance in Criminal Matters between Member States of the European Union.

* receive the request/decision for judicial cooperation

Within the scope of the investigation, undercover action depends on the prior authorization of the Public Prosecution, with mandatory communication to the examining judge. Regarding criminal prevention, the measure can only take place following a proposal made by the Public Prosecution to the Central Department for Criminal Investigation and Prosecution to the Central Court for Criminal Investigation, since the examining judge is the judicial authority competent to authorize the operation.

* execute/recognise the measure (if other than the receiving authority)

N/A

Accepted languages for the request/decision

Portuguese and French.

Deadlines for the execution of the request/decision (where applicable)

N/A

a. Special requirements

Nobody can be forced to participate in covert actions. The criminal investigation activities of these agents are subject to prior authorization given by the competent judicial authority. The Portuguese Criminal Police will report the intervention of the official to the competent judicial authority within 48 hours from the end of this intervention. The competent authority will only order this report to be attached to the investigation file if it is a case of essential evidence. The judge can also determine, as an essential means of evidence, the appearance of the undercover official or third party at the court hearing. This cooperation depends on the existence of treaty and of the observance of reciprocity.

b. Other useful information

The request for mutual legal assistance addressed to Portugal is processed in accordance with the fundamental principles of Portuguese law. However where the foreign State expressly requests it, or if there is an agreement, treaty or international convention to that effect, assistance may be granted in accordance with the law of that State where this is not incompatible with the fundamental principles of Portuguese law and does not seriously endanger those involved in the procedure. See this link: http://www.gddc.pt/legislacao-lingua-estrangeira/english/law-101-2001.html - contains english translation of Law 101/2001.