PORTUGAL Law and Practice Contributed by: Bárbara Marinho e Pinto, Ana Reis Mota, Lua Mota Santos and Jéssica Dinis Bento, Rogério Alves & Associados
co-operation during investigations are important fac - tors when authorities and courts decide how to apply these mitigation tools in individual cases. 2.2.6 Strict Liability The Portuguese sanctions regime does not operate based on pure strict liability for criminal offences. The offence of “violation of restrictive measures” expressly requires either intentional conduct or, in a separate provision, negligent conduct; there is no criminal liabil - ity in the absence of at least negligence. That said, the combination of criminalisation of negli - gence and the stringent organisational duties imposed on “obliged entities” under the AML/CTF framework means that entities may face liability where they ought reasonably to have known of, or prevented, a breach. Administrative enforcement by supervisors can also sanction failures in systems and controls without the need to prove individual intent, but this remains within the administrative offence regime rather than consti - tuting strict criminal liability. It is possible to obtain authorisations or derogations from certain sanctions obligations, but only to the extent that the underlying UN or EU restrictive meas - ures themselves provide for exceptions. Law No 97/2017 allocates competence for deciding such requests to the national competent authori - ties and sets procedural rules and deadlines for the authorisation of specified fund transfers and certain operations, while making clear that the substantive conditions and grounds for derogation are those laid down in the relevant EU regulations or UN measures. In practice, parties seeking to rely on derogations must therefore demonstrate that their proposed trans - action or activity falls within an exception expressly allowed in the applicable sanctions programme and submit a duly documented request to the competent authorities. 2.3.2 Provision of Legal Services Portugal does not operate a standalone national “general licence” regime specifically authorising the 2.3 Licensing 2.3.1 Derogation
provision of legal services to all designated persons. Whether legal services can be provided in each case depends primarily on the terms of the applicable EU restrictive measures, which may allow or restrict cer - tain professional services in particular regimes, and on the general prohibitions on making funds or economic resources available to designated persons. At nation - al level, Law No 97/2017 expressly exempts lawyers and solicitors from reporting obligations concerning breaches of restrictive measures when they provide legal advice or represent clients in judicial proceed - ings, thereby safeguarding the right of defence and access to legal representation, but this is not a general authorisation to ignore EU‑level service restrictions. 2.4 Reporting The entities mentioned in Law 97/2017 must co-oper - ate with the national competent authorities – namely the Directorate General for Foreign Policy of the Min - istry of Foreign Affairs and the Office for Planning, Strategy, Evaluation and International Relations of the Ministry of Finance – by providing any information that facilitates the application of restrictive measures and must immediately inform those authorities whenever they execute a measure, such as freezing funds or economic resources. When an executing entity becomes aware of, or suspects, any act or omission that may constitute a breach of a restrictive measure, it must immedi - ately report this to the Prosecutor General and to the national competent authorities (a formal criminal denunciation). Supervisory bodies, such as, for example, the Bank of Portugal, have a parallel duty whenever, in the course of supervision, they detect facts that may amount to such violations, and failure to comply with certain communication obligations that form part of a restric - tive measure can itself constitute a criminal offence. In addition, under Law 83/2017, all obliged entities (financial and specified non-financial) must immedi - ately report to the Public Prosecutor’s Office whenever they know, suspect or have reasonable grounds to suspect that funds or assets are proceeds of crime or related to terrorist financing, abstaining from execut - ing suspicious operations and following the suspen -
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