PORTUGAL Law and Practice Contributed by: Bárbara Marinho e Pinto, Amanda Bueno Almeida and Lua Mota Santos, Rogério Alves & Associados Sociedade de Advogados, SP, RL
2.7 Rules for Pleading Fraud With the enactment of Law No 83/2017, 18 August, which partially transposed Directive 2015/849/EU, “legal advice should remain subject to the obligation of professional secrecy, except where the legal pro - fessional is taking part in money laundering or ter - rorist financing, the legal advice is provided for the purposes of money laundering or terrorist financing, or the legal professional knows that the client is seeking legal advice for the purposes of money laundering or terrorist financing.” This legislation has been incorporated into the Por - tuguese Bar Association’s Regulation on the preven - tion and combating of money laundering and terrorist financing ( Regulamento da Ordem dos Advogados sobre a prevenção e combate ao branqueamento de capitais e financiamento do terrorismo ). Consequently, lawyers, whether as a law firm or in individual practice, are subject to the provisions of the law and this Regulation whenever they intervene or assist, on behalf of a client or in other circumstances, in the following activities: • barter transactions and the purchase or sale of immovable property, commercial establishments, or shareholdings; • management of funds, securities, or other assets belonging to clients; • opening and management of bank, savings, or securities; • creation, incorporation, operation, or management of companies, societies, other legal entities, or col - lective interest centres without legal personality; • the sale or acquisition of rights over professional athletes; and • other financial or real estate operations, on behalf of or in support of the client. Lawyers who have suspicions that a certain operation is likely to involve money laundering or terrorist financ - ing must strengthen their means of analysing the situ - ation to the best of their ability, taking into account the possibility of obtaining further clarification, by report - ing suspicious operations to the Bar Association, duly documenting that certain funds or other assets,
regardless of the amount or value involved, come from criminal activities or are related to terrorist financing. In addition, lawyers have a duty to co-operate with the authorities and to keep communications and suspi - cious documentation confidential. 2.8 Claims Against “Unknown” Fraudsters Article 113 et seq of the Portuguese Penal Code fore - sees the rules of the complaint and does not require the suspect of the crime to be identified. It is there - fore possible to file a complaint against unidentified persons, and it will be up to the Public Prosecutor’s Office to find the perpetrator. Article 262 of the Portu - guese Code of Criminal Procedure thus tells us that the investigation phase consists of carrying out the necessary actions to investigate whether a crime has in fact occurred, to identify who committed it and who is responsible for it, and to gather the necessary evidence to decide whether there are grounds for an indictment. Although the participant has, in this case, some elements to identify themselves, what is certain is that there is nothing to prevent a criminal report from being filed even against unknown or uncertain persons and that the identification will then result from the investigative activity of the Public Prosecu - tor’s Office. 2.9 Compelling Witnesses to Give Evidence In Portuguese criminal proceedings, witnesses are legally required to appear and testify when duly noti - fied (Article 132 of the Portuguese Code of Criminal Procedure). If a witness fails to appear without justifi - cation, the court may order their compulsory appear - ance by police ( condução coerciva ) and impose a fine (Article 116 number 2 of the Portuguese Code of Criminal Procedure)). Once present, witnesses must take an oath and testify truthfully. False declarations may lead to criminal liability under Article 360 of the Criminal Code, which penalises unjustified refusal to testify. Certain individuals have the right to refuse testimony due to privileged relationships, including spouses, direct relatives, and persons bound by professional secrecy (Articles 134 and 135 of the Portuguese Code of Criminal Procedure). Even in such cases, they must appear and formally state their reason for refusal. In
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