PORTUGAL Law and Practice Contributed by: Bárbara Marinho e Pinto, João Diogo Melo, Lua Mota Santos and Amanda Bueno Almeida, Rogério Alves & Associados
2.6 Right to Not Co-Operate or Self- Incriminate
2.7 Pre-Charge Powers Several pre-charge mechanisms exist to freeze or restrain assets belonging to individual or corporate suspects. The Code of Criminal Procedure allows for the seizure of instrumentalities, proceeds or benefits of crime, as well as any assets relevant for eviden - tiary purposes, based on strong indications of a crimi - nal offence. This includes immediate action by law enforcement in cases where there is a risk of dissipa - tion or disappearance of assets, subject to judicial validation within 72 hours. Asset-preservation measures (preventive attachment) may also be ordered by a judge, at the request of the Public Prosecutor or the injured party, to secure fines, costs and compensation, requiring the suspect to have been formally constituted as a defendant and subject to principles of necessity and proportionality, and generally a substantiated risk of loss of patrimo - nial guarantees. In the context of organised and eco - nomic-financial crime, Law No 5/2002 establishes a “special” attachment regime linked to extended con - fiscation, allowing assets to be frozen up to the value of illicit advantages, based on disproportionate wealth and strong indications of criminal activity, without the need to demonstrate risk as required under civil law. In parallel, financial-sector mechanisms provide addi - tional means of restraint. Under the AML framework (Law No 83/2017), obliged entities must refrain from executing suspicious transactions and report them to the competent authorities, while the Public Prosecutor may order the temporary suspension of transactions linked to specific accounts or business relationships. Such measures may be converted by an investigating judge into a freezing of funds or assets where there are indications of criminal origin and a risk of integration into the legitimate economy. Law No 5/2002 also allows for judicial control of bank accounts, including the suspension of specific transactions where necessary to prevent money laun - dering. In the context of UN and EU sanctions, Law No 97/2017 provides for the direct freezing of funds and economic resources under restrictive measures, implemented immediately by relevant entities without the need for additional acts, with breaches constitut - ing a criminal offence punishable by imprisonment.
Investigations into economic and financial crime in Portugal may involve the detention and questioning of suspects under the general framework of the Code of Criminal Procedure. Detention may occur in flagrante delito (caught in the act) or where there are strong indications of an intentional offence punishable by more than three years’ imprisonment, with the suspect being brought before an investigating judge within 48 hours for an initial hearing. The accused has the right to remain silent and not to self-incriminate, meaning they may refuse to answer questions concerning the alleged facts without such silence being held against them, as enshrined in the Constitution and the Code of Criminal Procedure. This right is not absolute, as the accused is required to appear, to truthfully provide identification details (and, in certain circumstances, information on prior convic - tions) and to comply with legally prescribed investiga - tive measures and coercive actions; refusal or false statements may constitute a criminal offence. Third parties – such as witnesses, holders of documents or system administrators – may be compelled to co- operate by appearing, testifying or providing access to documents or technical information necessary for searches and seizures, including access credentials, subject to criminal liability in case of non-compliance, while preserving the privilege against self-incrimina - tion. In parallel, at the regulatory level, the right to silence does not operate in the same manner. Supervised entities are subject to extensive duties of information and co-operation with authorities such as the Bank of Portugal, Portuguese Securities Market Commis - sion ( Comissão do Mercado de Valores Mobiliários – CMVM) and Insurance Supervisory Authority ( Autori- dade de Supervisão de Seguros e Fundos de Pensões – ASF), including inspections, document requests and the summoning of individuals. Failure to co-operate or the provision of false information typically constitutes a serious administrative offence, punishable by sub - stantial fines and ancillary sanctions, such as restric - tions on activities, disqualification of managers and the public disclosure of decisions.
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