PORTUGAL Law and Practice Contributed by: Bárbara Marinho e Pinto, João Diogo Melo, Lua Mota Santos and Amanda Bueno Almeida, Rogério Alves & Associados
Rogério Alves & Associados Av Álvares Cabral No 61 4º andar 1250-017 Lisboa Portugal
Tel: +351 213 911 040 Fax: +351 213 911 041 Email: geral@raassociados.pt Web: www.raassociados.pt
1. Legal Framework and General Principles 1.1 Scope of Financial Crime and General Criminal Law Principles Portuguese legislation and policy documents more commonly refer to economic and financial crime ( criminalidade económica e financeira ), including in framework statutes such as Law 36/94 of 29 Septem - ber, which establishes measures to combat corruption and economic and financial crime. “Financial crime” in Portugal is understood to cov - er fraud, bribery and corruption, money laundering, sanctions breaches, market abuse, tax evasion, cyber‑enabled crime and related misconduct. As regards the general principles of criminal liability, financial‑crime offences are subject to the ordinary rules of Portuguese criminal law. Portuguese doctrine and case law describe an offence as comprising: • conduct that fulfils the statutory definition (typical - ity); • unlawfulness; and • culpability. Essentially only unlawful conduct committed with intent ( dolo ) is punishable. In some cases, however, the law expressly provides for punishment of negligent conduct. These principles apply across economic and financial crime.
Core financial‑crime offences (such as corruption, classic fraud and money laundering) are typically intent‑based. An attempt is generally punishable where the completed offence carries a statutory mini - mum of more than three years’ imprisonment. How - ever, in some financial‑crime‑related regimes, such as corruption by public officials, the attempt is punish - able irrespective of the underlying penalty threshold (Article 4 of Law 34/87 of 16 July). The Penal Code and sectoral legislation establish cor - porate criminal liability in a broad range of offences. Article 11 of the Penal Code provides that legal per - sons and equivalent entities (with specific exceptions, such as the state) are liable for numerous crimes, including many at the core of economic and finan - cial crime (criminal association, influence peddling, corruption, embezzlement, participation in economic business, money laundering, market abuse and oth - ers), where they are committed in the entity’s name or on its behalf and in its direct or indirect interest by per - sons in a leading position, or by persons under their authority where there has been a breach of supervi - sion or control. 1.2 Burden and Standard of Proof Under the presumption of innocence enshrined in Article 32 of the Constitution, Portuguese case law consistently holds that the burden of proof in criminal proceedings lies with the accuser: it is for the pros - ecution ( Ministério Público ) to prove all elements of the offence, and the presumption of innocence entails a prohibition on inverting the burden of proof to the detriment of the defendant – the accused does not have to prove their innocence.
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