PORTUGAL Law and Practice Contributed by: Bárbara Marinho e Pinto, João Diogo Melo, Lua Mota Santos and Amanda Bueno Almeida, Rogério Alves & Associados
This framework is supplemented by a rigorous asset forfeiture regime covering the instruments and pro - ceeds of crime. It further allows for extended confisca - tion where an unjustified discrepancy exists between an offender’s assets and declared income. In deter - mining sanctions, courts weigh the financial scale and complexity of the offence; however, significant miti - gation – or even the waiver of penalties – is possible through decisive co-operation with authorities or the implementation of effective compliance programmes. 6.3 Proceeds of Crime Recovery In Portuguese law, there are judicial mechanisms, both during proceedings and after conviction, aimed at depriving offenders of the proceeds and economic advantages derived from criminal activity. The relevant legal framework includes: • the Penal Code, which sets out the general rules on confiscation and the possible allocation of assets to victims; • the Code of Criminal Procedure, which governs seizure and asset-freezing measures and allows civil compensation claims to be brought within criminal proceedings; • Law No 5/2002, which introduces an extended confiscation regime applicable to organised and economic-financial crime; and • Law No 30/2017, which implements EU legislation and provides for post-conviction financial investi - gations. Under the general regime, confiscation is based on the existence of an unlawful act and does not necessarily depend on a criminal conviction of a specific indi - vidual. It may cover instruments used in the offence, proceeds directly obtained from it and any economic advantages arising from it, including indirect benefits. Although third-party property is generally protected, this does not apply where the third party acted in bad faith or was otherwise involved in or benefited from the offence. Where recovery in kind is not possible, confiscation is replaced by an obligation to pay an equivalent monetary value. From a procedural standpoint, assets may be seized or frozen at an early stage in order to secure confis -
cation or compensation. Third parties are entitled to challenge such measures and benefit from procedural safeguards. After conviction, enforcement may take the form of forfeiture of seized assets or the payment of a corre - sponding sum. Victims may seek compensation either within the criminal process or, in certain cases, through separate civil actions. Precautionary civil measures, such as asset freezing, may also be employed. 6.4 Victim Compensation and Asset Recovery The victim (injured party) may lodge a civil claim for damages within the criminal proceedings themselves, in accordance with the principle of joinder, as set out in Articles 71 et seq of the Code of Criminal Proce - dure. This constitutes the fundamental basis: the court determines the amount of compensation, which may subsequently be enforced against any assets of the convicted person, including those that have been recovered. The Penal Code expressly provides that assets and sums forfeited to the state may be allocated towards compensating the victim. Specific legislation may establish that the state ensures compensation where the offender is unable to pay. Outside such cases, the court may award the injured party the seized objects or the proceeds from their sale, as well as the price or equivalent value of advantages derived from the offence that have been paid to or transferred in favour of the state under Articles 109 to 111 of the Penal Code. The restitution of assets to the rightful owner must take place as soon as the seizure is no longer neces - sary, and, in any event, after the judgment becomes final, unless the assets are declared forfeited in favour of the state, in accordance with Article 186 of the Code of Criminal Procedure. Confiscation or forfeiture does not prejudice the rights of the injured party, and assets belonging to bona fide third parties are, as a rule, not subject to forfeiture, under Articles 110 and 111 of the Penal Code. Fur - thermore, transformed or reinvested assets, as well as
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