PORTUGAL Law and Practice Contributed by: Bárbara Marinho e Pinto, João Diogo Melo, Lua Mota Santos and Amanda Bueno Almeida, Rogério Alves & Associados
In parallel, a wide range of environmental infringe - ments are treated as administrative offences, includ - ing breaches of environmental licences, emissions limits and waste management rules, as provided for in the Framework Law on Environmental Administra - tive Offences (Law No 50/2006). In addition, the Legal Framework on Liability for Envi - ronmental Damage (established by Decree-Law No 147/2008, which transposes Directive 2004/35/EC) provides for both civil and administrative liability, under which the polluter is required to compensate individuals affected by environmental damage, and to bear the costs of preventing and remedying such damage, as a collective good. Although greenwashing is not provided for under Por - tuguese law, and therefore is not defined as a specific criminal offence, misleading environmental claims fit within the unfair commercial practices’ regime, con - sumer protection laws (both provided for by Decree- Law No 57/2008) and advertising law (Decree-Law No 330/90), leading to administrative offences subject to fines and orders to cease or prohibit the practice. In addition, companies may also be held liable for unfair competition among themselves for including false descriptions or indications regarding the nature, quality or utility of the products or services marketed, pursuant to the Industrial Property Code. 4. Prosecution and Trial Process 4.1 Initiating a Prosecution Financial crime prosecutions are governed by the general procedural framework applicable to all crimi - nal offences. Investigations are conducted under the direction of the Public Prosecution Service, which retains exclusive authority over the investigative phase and is responsible for determining whether charges should be brought. In practice, proceedings relating to financial crime are often triggered by reports or referrals from super - visory authorities, particularly the Bank of Portugal, the Portuguese Securities Market Commission, and the Portuguese Tax and Customs Authority. These entities are vested with powers to detect irregulari -
ties within the banking, financial and tax sectors, and may conduct their own administrative investigations, including the imposition of sanctions for regulatory infringements. Where the underlying conduct may constitute a criminal offence – such as fraud, tax eva - sion, market manipulation or insider dealing – such matters are referred to the Public Prosecution Service. The initiation of criminal proceedings is not contin - gent upon the arrest of a suspect. Individuals may be formally designated as defendants ( arguidos ) and summoned to participate in the proceedings without prior detention. The decision to bring charges is governed by the prin - ciple of legality, pursuant to which the Public Prosecu - tion Service is required to prosecute whenever suf - ficient evidence has been obtained. 4.2 Due Process and Bail Financial crime proceedings in Portugal tend to be more protracted than other types of criminal cases, largely owing to their inherent complexity. This com - plexity typically arises from the significant volume of documentary evidence involved, the frequent need for expert analysis and, in many instances, the existence of cross-border elements requiring cooperation with foreign authorities. As a rule, pre-trial detention is regarded as a measure of last resort (pursuant to Article 202 of the Code of Criminal Procedure). In practice, the default measure applied is the identity and residence form ( termo de identidade e residência ), which essentially entails the formal identification of the defendant and the indica - tion of their residence, together with an obligation to remain available to the authorities. Notwithstanding this, additional coercive measures are often imposed depending on the circumstances of the case, such as periodic reporting obligations before the police, restrictions on travel (including a prohibi - tion on leaving the country) or the provision of bail. Where pre-trial detention is ordered, it is subject to strict statutory time limits. These limits vary according to both the stage of the proceedings and the seri -
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