Fiches Belges

Portuguese criminal law provides for three types of confiscation: a) confiscation of instruments or objects used or intended to be used, in any manner, wholly or partially, to commit a criminal offence b) confiscation of products, that is, objects that have been produced by the commission of the crime c) confiscation of proceeds: The proceeds are considered by Portuguese law to be any economic advantage derived directly or indirectly from a criminal offence, consisting of any form of property and including any subsequent reinvestment or transformation of direct proceeds and any valuable benefits Confiscation may be ordered on the offender, participant or person on whose behalf, or to whose advantage the offence was committed, as well as on a mala fide third party. If confiscation of assets is not possible (e.g.it was hidden, destroyed, consumed or not found), confiscation of the value of the property may be ordered. Confiscation may take place even where no identifiable person can be prosecuted with a criminal offence or convicted. A special extended confiscation is possible in cases of drug trafficking, terrorism and terrorist organization, arms trafficking, corruption, embezzlement, money laundering, criminal association, smuggling, trafficking in stolen vehicles, promotion and instigation of the prostitution of minors, trafficking in minors, counterfeiting of money (Law no. 5/2002 of 11 January). In these cases, for extended confiscation to occur, it is necessary that the defendant is convicted of committing a catalogue crime, and the difference between the value of the defendant's property and his or her lawful income is presumed to be the advantage of criminal activity.

The applicable law on confiscation of assets is the Criminal Code (articles 109-112), which refers to this measure for national cases. Extended confiscation in Portuguese law is regulated in Law 5/2002 of 11 January (article 7) In cases of mutual recognition the Portuguese applicable law is Law 88/2009 of 31 August, on mutual recognition of judicial decisions in criminal matters in the European Union, which regulates confiscation orders Confiscation under international judicial cooperation should be ordered or requested under the framework of: - Regulation (EU) 2018/1805 of the European Parliament and the Council of 14 November on the mutual recognition of freezing orders and confiscation orders issued in respect of participant Member States; - Council Framework Decision 2006/783/JHA of 6 October on the application of the principle of mutual recognition to confiscation orders.; - in other cases; - Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism (2005) (articles 23 e 24)

For the purposes of the mutual recognition of a confiscation order, the competent national authorities are as follows: • As the issuing State: The court which issued the confiscation order (Article 7 of Law No 88/2009 of 31August). • As the executing State: The court in whose jurisdiction the property, or the greatest number of properties, is located, or, if the number of properties cannot be determined, the court which first took cognizance of the confiscation order, as the case may be; it is the responsibility of the public prosecutor’s office (Ministério Público) to pursue proceedings in accordance with the provisions for confiscation orders issued by a Portuguese court (Article 11 of Law 88/2009 of 31 August).

Portuguese

No specific deadlines.

Outside of the main applicable instrument is the 1990 Convention of the Council of Europe as well as the Warsaw Convention; other than these instruments sepcific rules from bilateral or multilateral instruments apply. Domestic Law 144/99 from august 31st can be applied on basis of reciprocity.