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
It should be noted that this right does not extend to matters of identity (and, where the law so requires, criminal record) and does not cover evidence obtained independently of the defendant’s will in accordance with the law. In civil proceedings, the criminal-law right to silence does not transpose wholesale; neverthe - less, party testimony is inadmissible on criminal facts for which the witness is a defendant, and targeted refusals to answer potentially incriminating questions are permitted. 6.2 Undermining the Privilege Over Communications Exempt From Discovery In Portugal, the lawyer-client relationship is safeguard - ed by professional secrecy. However, this protection is not absolute and may be lifted in exceptional circum - stances and pursuant to defined procedures. Legal professional privilege is protected, but it does not apply to communications made for the purpose of committing or furthering a crime or fraud. If docu - ments or advice are created with the intent to facili - tate fraudulent conduct, the privilege may be lifted by judicial decision, allowing their disclosure in civil or criminal proceedings. Authorisation to disclose information covered by pro - fessional secrecy is only permitted when it is une - quivocally necessary to defend the dignity, rights, and legitimate interests of the lawyer, client, or their rep - resentatives. Such disclosure requires prior approval from the president of the respective regional coun - cil of the Bar Association, as stipulated in Article 92 (4) of the Statute of the Portuguese Bar Association (Law No 145/2015, of 9 September) and Article 4 of the Regulation on the Waiver of Professional Secrecy (Regulation No 94/2006, of 12 June). However, should the Bar Association refuse to waive legal professional privilege, an appeal may be lodged with the higher courts (the “Court of Appeal” or the “Supreme Court of Justice”, as the case may be). In practice, two pathways must be distinguished: (i) Bar authorisation for waiver when disclosure is abso - lutely necessary to protect the dignity, rights and legit - imate interests of the lawyer of the client; and (ii) judi - cial “secrecy-breaking” incidents, in which the higher
court, after consulting the Bar, may order disclosure based on the prevalence of a superior interest.
7. Special Rules and Laws 7.1 Rules for Claiming Punitive or Exemplary Damages In Portugal, punitive damages are not awarded, unlike in common law jurisdictions such as the United States. Rooted in a civil law tradition, the Portuguese legal system adheres to compensatory damages aimed at restoring the victim to the pre-harm position, whether the damage is pecuniary (eg, financial loss) or non- pecuniary (eg, pain and suffering). Victims of crime may file a civil compensation claim ( pedido de indemnização civil ) within criminal proceed - ings under the adhesion regime set out in Article 71 of the Portuguese Code of Criminal Procedure. How - ever, such claims are strictly limited to actual losses. Damages intended to punish or deter the wrongdoer are not recognised, as they would conflict with the principles of proportionality and the reparative func - tion of civil liability. Contractual penalty clauses may coexist with com - pensation for additional loss, operating as coercive/ pre-liquidated remedies rather than punitive awards, and are reducible if manifestly excessive. A separate civil action may only be brought in excep - tional cases, as set out in Article 72 of the Portuguese Code of Criminal Procedure, with the compensatory nature of damages unchanged. 7.2 Laws to Protect “Banking Secrecy” In Portugal, banking secrecy is a legal safeguard that protects the confidentiality of citizens’ financial infor - mation, as stipulated in banking and tax legislation. This procedure ensures that public or private entities cannot freely access bank data without the account holder’s consent or legal authorisation expressly pro - vided by law. However, banking secrecy is not absolute and may be lifted in exceptional circumstances, particularly within criminal proceedings where access to bank
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