Answer ... (a) What confiscation mechanisms are available in your jurisdiction?
The Code of Criminal Procedure provides for the following procedural mechanisms for safeguarding assets related to criminal practices:
- seizure of assets (apreensão); and
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preventive seizure of assets (arresto 1reventive), which can be either:
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- classic seizure; or
- seizure for the purpose of extended confiscation of assets.
(b) How do these different mechanisms work in practice?
In Portugal, the safeguarding mechanisms for assets in criminal proceedings work as follows.
Seizure (apreensão): While a criminal case is pending, all instruments, products or advantages related to the crime are seized. Depending on the nature of the assets, they are held by:
- the state (eg, bank balances); or
- a trustworthy custodian (eg, real estate).
At the end of the process, if the criminal agent is convicted, the assets may be:
- declared lost for the benefit of the state (which then determines a specific destination for them); or
- used to satisfy the victims of the crime.
Seizure can be ordered by the Public Prosecutor’s Office;
Preventive seizure: If there is a fear that the defendant will dissipate assets, this asset seizure mechanism can be activated (regardless of whether the relevant assets relate to the crime committed) to guarantee the payment of any amount to which the defendant may be convicted, including:
- the costs of the legal proceeding;
- any penalties or fines imposed;
- the profits and advantages obtained by the defendant through the crime; or
- compensation for victims of the crime.
This mechanism can be sought by the Public Prosecutor’s Office or by the injured party, but can only be ordered by a judge. Depending on the nature of the assets, they are held by:
- the state (eg, bank balances); or
- a trustworthy custodian (eg, real estate);
Seizure with a view to extensive confiscation of assets (arresto 1reventive para perda alargada de bens): If there is a discrepancy between the defendant’s lawful income and its assets (ie, if the defendant has more assets than can be justified by declared income), the difference is presumed to have an illicit origin and may be declared lost for the benefit of the state if, at the end of the process, the defendant is convicted and is unable to prove the legitimate origin of the assets. The financial analysis to determine the discrepancy always refers to the five years preceding the act of constitution of the defendant (ie, the procedure through which the target of the investigation assumes the status of defendant, with all criminal procedural rights and duties).
To safeguard the effectiveness of the loss of this presumably illicit property, the seizure mechanism can be activated, which in procedural terms works in a same manner to the preventive seizure.
However, this mechanism can only be:
- triggered if the criminal activity corresponds to a certain list of crimes (ie, it is not applicable to any type of crime); and
- ordered by a judge at the request of the Public Prosecutor’s Office.
Depending on the nature of the assets, they are held by:
- the state (eg, bank balances); or
- a trustworthy custodian (eg, real estate);
(c) Are any procedural tools available in your jurisdiction that can enhance the effectiveness of the confiscation regime or capture a wider range of assets?
Any of the three mechanisms referred to in question 3.2(b) are effective, but the seizure with a view to extensive confiscation of assets has a greater reach, for the reasons outlined above.
(d) Can secondary proceeds be confiscated in your jurisdiction?
In Portugal, any assets relating to a crime committed or the corresponding value (from any type of income of the criminal agent) will be seized.
(e) Is value-based confiscation allowed in your jurisdiction? If so, how does this work in practice?
In Portugal, it is only possible to confiscate assets as part of a criminal investigation. The suspicion that a crime has been committed justifies the seizure of assets; however, the mere detention of assets (even if they are abnormally valuable) does not justify the opening of proceedings and seizure of the assets.
(f) Can the property of third parties or close relatives be confiscated in your jurisdiction? How are third-party interests addressed?
Third-party assets can be seized using any of the mechanisms referred to in question 3.2(b). This may occur if assets relating to the crime have been transferred or belong to third parties.
Third parties are afforded procedural defence mechanisms.
The party that decides whether to maintain or revoke the seizure is always a judge.
At the end of the process, any third parties involved will be left without their assets only if it is proven that they had some type of knowledge or involvement in the commission of the crime.
(g) Can confiscated assets be used to provide restitution to the victims of crime?
Yes, except in case of seizure for extensive loss of assets for the benefit of the state, since the aim of this is not to safeguard the payment of any amounts but rather to confiscate assets whose origin is presumed to be illicit.
(h) Can confiscated assets be used to satisfy civil claims for damages or compensation arising from the offence?
Yes, except in case of seizure for extensive loss of assets for the benefit of the state, since the aim of this is not to safeguard the payment of any amounts but rather to confiscate assets whose origin is presumed to be illicit.
(i) Is confiscation possible without a conviction in your jurisdiction? If so, how does this work in practice?
Under Portuguese law, products or assets related to a crime can be forfeited to the state even if it is not possible to punish the criminal responsible (eg, if the defendant dies during the process).
This possibility, however, raises some questions that are difficult to overcome, which are linked to the fact that the loss of assets (whether to the state, to satisfy the injured parties or to pay costs) must necessarily result from the conviction of a person.
In the case of other seizure mechanisms, it is not possible to have a definitive loss of assets if there is no criminal conviction.