PORTUGAL Law and Practice Contributed by: Pedro Duro, Mariana Proença Lobo and Joana Avelino Gomes, CS’Associados
advantage committed by a public official, the penalty may be especially reduced if, until the close of the trial, the defendant actively co- operates in the discovery of the truth; • in Article 373, no 1, of the Criminal Code, where the agent has not committed the act or omission contrary to the duties of the office for which they requested or accepted the advantage and voluntarily returns or repudi - ates the advantage or, in the case of a fungi - ble thing or animal, returns its value; • in Article 372, no 1, and Article 373, no 2, of the Criminal Code, where the agent voluntar - ily returns or repudiates the advantage or, in the case of a fungible thing or animal, returns its value; • in Article 374, no 1, of the Criminal Code, where the agent has withdrawn the promise of an advantage or requested its restitution or repudiation from the official or third party before the act or omission contrary to the duties of the office is committed; and • in Article 372, no 2, and Article 374, no 2, of the Criminal Code, where the agent has withdrawn the promise of an advantage or requested its restitution or repudiation from the official or third party. A public official may not be subject to pun - ishment if, during the investigation or inquiry, provided that one of the above-mentioned provisions applicable, they have contributed decisively to the discovery of the truth. Moreover, the penalty should be waived for offences that are a consequence of the crimes foreseen in Articles 372 to 374 of the Criminal Code, or that are intended to continue or con - ceal such offences, or the advantages derived from them, provided that the agent has reported them or has decisively contributed to their dis - covery.
The proceedings may be dismissed in the fol - lowing situation: • in Article 9 of the Law No 36/94, and regard - ing the crime of active corruption or offering an undue advantage, a provisional suspen - sion of proceedings may be applied, and if the defendant contributes decisively to the discovery of the truth and complies with the remaining injunctions, the case may be dismissed. 6.3 Self-Disclosure Procedures For the defendant (natural or legal person) to benefit from a reduction or waiver of a penalty, or from a provisional suspension of proceedings, specific requirements should be fulfilled. • According to Article 374-B of the Criminal Code and Article 8 of Law No 36/94, the trial judge should (i) verify if the contribution to the discovery of the truth is decisive for the proceedings, and (ii) should present, when the decision ( sentença or acórdão ) is made, the reason for the decision to waive or reduce the penalty. • In Article 9 of Law No 36/94, a provisional suspension of proceedings could be request - ed by the Public Prosecutor’s Office. If the investigating judge ( juiz de instrução ) agrees, the proceedings will be dismissed after verification of the decisive contribution to the discovery of the truth and any remaining injunctions. 6.4 Protections Afforded to Whistle- Blowers In accordance with Law No 93/2021 of 20 December 2021, whistle-blowers benefit from protection as long as they act in good faith and have serious grounds to believe that the infor - mation is true at the time of making the report.
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