PORTUGAL Law and Practice Contributed by: Bárbara Marinho e Pinto, João Diogo Melo, Lua Mota Santos and Amanda Bueno Almeida, Rogério Alves & Associados
In the field of organised and economic‑financial crime, however, Law 5/2002 of 11 January introduces a regime of “extended loss” ( perda alargada ). In short, once a person has been constituted as a defendant ( arguido ) in respect of one of the catalogue offenc - es covered by that statute, their overall assets are assessed. The total value of those assets is then com - pared with the income of proven lawful origin earned by the defendant over the legally defined reference period. If this comparison reveals an “inconsistent amount” – ie, a discrepancy that is unjustified and incompatible with lawful income – that amount may be declared forfeited to the state as an advantage of criminal activity. In practice, once the prosecution has proved a relevant predicate offence and established a significant incon - gruity between assets and declared lawful income, a strong statutory presumption operates, shifting to the defendant the evidential burden of providing a cred - ible lawful explanation for that wealth. The Constitutional Court (through Constitutional Court Judgment No 392/2015) has upheld the constitution - ality of this mechanism, treating extended loss as an autonomous confiscation measure built on prior proof of a serious predicate offence and asset incongruity, even though it continues to spark controversy within the legal community. 1.3 Aiding and Abetting A person can be held secondarily liable in Portugal if they conspire to, or assist the principal offender in, committing an offence. Under the Penal Code, the basic distinction is between: • authors ( autores ) – including direct perpetrators, co‑authors, mediating authors and instigators; and • accomplices ( cúmplices ) – those who assist a prin - cipal offender. The Penal Code adopts an “extended” concept of authorship in Article 26: a person is punishable as an author if they execute the act themselves, execute it through another, take a direct part in its execution together with others (co‑authorship) or, acting with
intent, encourage another person to commit the act (instigation). Article 27 of the Penal Code defines an accomplice as anyone who, intentionally and by any means, provides material or moral assistance to the commission by another of a crime. 1.4 Limitation Periods In economic and financial crimes, limitation periods follow the general regime of the Penal Code: as a rule, proceedings are time-barred after two, five, ten or 15 years, depending on the maximum statutory penalty applicable. Many offences involving corrup - tion, embezzlement and other qualified economic and financial crimes are currently subject to an extended limitation period of 15 years, irrespective of the appli - cable penalty range. As a general rule, the limitation period runs from the completion of the offence; in the case of continuing offences, it runs from the cessation of the unlawful situation, and in the case of continued or habitual offences, from the last act, which is particularly rel - evant for schemes of fraud or money laundering car - ried out over an extended period. In civil recovery actions (compensation, restitution, unjust enrichment), the ordinary limitation period is 20 years; however, the right to compensation based on civil liability is, as a rule, subject to a limitation period of three years from the moment the injured party becomes aware of the infringement and of the person responsible. 1.5 Extraterritorial Reach and Cross-Border Co-Operation Portuguese criminal law applies, as a rule, to acts committed within national territory, but it also pro - vides for broad extraterritorial jurisdiction, particularly in relation to various economic and financial crimes and corruption offences. The Penal Code extends the application of Portuguese law to acts committed abroad whenever there is a qualified territorial nexus; for example, where: • the offender is found in Portugal and extradition is not possible;
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