PORTUGAL Law and Practice Contributed by: Armando Martins Ferreira, Inês Sequeira Mendes and Margarida Calixto Kolmer, Abreu Advogados
courts, potentially leading to fines or other pen - alties. The PCA may also attempt to use other methods of investigation, such as obtaining doc - uments or testimony from other sources. Once PCA has seized material, the company has the right to request copies of the material that has been taken. However, there may be restric - tions if the material is sensitive or contains con - fidential information. Companies can challenge the seizure or request access to seized docu - ments through the legal process, but this often requires demonstrating that the documents are not relevant to the investigation or that their sei - zure was unlawful. There are legal restrictions on what can be searched and seized. The search must be tar - geted and proportionate to the investigation. The authorities cannot conduct overly broad searches of personal spaces or seize unrelated materials. Accessing personal devices is sub - ject to additional scrutiny, and any data seized that is not relevant to the investigation must be excluded from the process. Furthermore, the company has the right to request a review of the legality of the search and seizure, especially if they believe that their rights have been infringed upon. If any materials are found to be outside the scope of the investi - gation, they can be excluded, and any damage caused by the search may be subject to com - pensation. 2.3 Spoliation of Evidence The PCA also has the power to seal off any premises, books or records where there is, or may be, relevant accounting data or other docu - mentation, including the devices on which it is stored or saved, such as computers and other electronic data storage equipment, during the
period and to the extent that it is strictly neces - sary for carrying out the inspections. Searches of premises, property and means of transport of the undertakings concerned (access to emails included), as well as the sealing of rooms or other premises, require the PCA offi - cials to present credentials from the PCA and the judicial search order issued by the competent judicial authority/judge, according to law. 2.4 Role of Counsel All companies and individuals have the right to be assisted by a counsel of their choice, in any act or diligence promoted by a public entity, including investigations, inquiries and dawn raids. Counsels have their prerogatives expressly defined by law and their statute is constitution - ally protected. The violation of the defence rights or restriction on the effective exercise of the counsel’s mandate by any entity or agent may constitute a serious crime. Counsels should support the companies in co- ordinating the entire inspection procedure and serve as a control representative to verify the legality of the actions taken by the PCA’s inves - tigators. In particular, counsels should attend the inspections and safeguard the interests of the
company, officers and employees. The following initial steps are crucial:
• verify the judicial search order, including the investigators’ identities, and identify the pur - pose of the inspection; • accompany the investigators during the inspection and attend any interviews, noting the questions and answers given;
267 CHAMBERS.COM
Powered by FlippingBook