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Proposed Law No. 237 /X

Exhibition of Motives

The Council of the European Union considered the principle of mutual recognition as the

"cornerstone" of judicial cooperation in the European Union, in civil and criminal matters.

The legal regime of the implementation in the European Union of the seizure decisions of goods or of

proofing elements referred to in Council Framework Decision No 2003 /577/JAI of the Council, of

July 22, constitutes a new realization in the criminal scope of the said Principle of

mutual recognition, as reflected already, in Portuguese law, by Law No. 65/2003, 23 of

August, which approved the legal regime of the European Arrest Warrant.

The said Framework Decision aims to create a harmonized legal regime of recognition

and of implementation in the Member States of the European Union of seizure decisions

taken by a judicial authority of another Member State, within the framework of a

criminal proceedings, anchoring themselves in the trust in which decisions to recognize and apply are

always taken in accordance with the principles of legality, subsidiarity and

proportionality.

This Law establishes the legal regime of the issuance and transmission, by the authorities

Portuguese judiciary, of seizure decisions for the purpose of collecting elements of

evidence or subsequent loss of property in the context of a criminal case, with a view to the

your recognition and implementation in another member state of the European Union.

It also establishes the legal regime for the recognition and implementation in Portugal of the

apprehension decisions taken by a judicial authority of another member state of the

European Union in the framework of a criminal procedure.

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It is devotes a speedy and simple procedure, more suited to the needs

contemporary in criminal matter, thus taking a significant step in the sense

of the construction of the European space of freedom, security and justice.

The Superior Council of the Magistrature, the Attorney General of the Republic and

the Order of Lawyers.

Thus:

Under the terms of the paragraph d) of Article 197 (1) of the Constitution, the Government presents to the

Assembly of the Republic the following proposal for a law:

CHAPTER I

Object, definitions and scope of application

Article 1.

Subject

1-A This Law establishes the legal regime of the issuance and transmission, by the authorities

Portuguese judiciary, of seizure decisions for the purpose of collecting elements

of proof or subsequent loss of property in the context of a criminal case, having in

view its recognition and execution in another member state of the European Union.

2-A This Law also establishes the legal regime for recognition and enforcement

in Portugal of the seizure decisions taken by one judicial authority of another

Member state of the European Union in the context of a criminal procedure, for the purposes of

collection of evidence or subsequent loss of goods.

3-A implementation in the European Union of the seizure decisions of goods or of elements of

proof is based on the principle of mutual recognition and carried out in compliance

with the provisions of Council Decision-Table No 2003 /577/JAI of the Council of July 22.

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Article 2.

Definitions

For the purposes of this Law, it shall be deemed to be:

a) "State of issuance", the Member State in which a judicial authority, such

as defined in the national law of that State, takes, validates or confirms from

any form of a seizure decision, in the context of a criminal procedure;

b) 'State of implementation', the Member State in whose territory the good is

or the element of proof;

c) "Decision of seizure" means any measure taken by a judicial authority

competent State of the issue to prevent provisionally operations of

destruction, transformation, displacement, transfer or disposal of goods that

may be the subject of loss or which may constitute evidence;

d) "Goods", goods of any nature, tangible or intangible, movable or

real estate, legal act or document certifying a title or law on

a good, in respect of which the competent judicial authority of the State

of issuance considers that:

i) They constitute the product of an offence referred to in the following article or

correspond, in whole or in part, to the value of that product; or,

ii) They constitute the instrument or the object of such infringement.

e) "Element of proof", the object, document or data capable of serving as

means of evidence in criminal proceedings relating to the offence referred to in the following article.

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Article 3.

Scope of application

1-Are recognized and executed without control of the double jeoparding of the fact the decisions

of seizures taken in the context of criminal proceedings respecting the following

facts, provided that, in accordance with the legislation of the issuing state, these are

punishable with deprivative penalty of freedom of maximum duration not less than three years:

a) Participation in a criminal organisation;

b) Terrorism;

c) Trafficking in human beings;

d) Sexual exploitation of children and pedopornography;

e) Illicit trafficking in narcotic drugs and psychotropic substances;

f) Illicit trafficking in arms, ammunition and explosives;

g) Corruption;

h) Fraud, including the aggrieved fraud of the financial interests of the Communities

European, within the meaning of the Convention of July 26, 1995 on Protection

of the Financial Interests of the European Communities;

i) Bleaching of the proceeds of crime;

j) Falsification of currency, including the counterfeiting of the euro;

l) Cybercrime;

m) Crimes against the environment, including the illicit trafficking of endangered animal species

and of endangered plant species and varieties;

n) Aid for irregular entry and permanence;

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o) Voluntary manslaughter and serious bodily offenses;

p) Illicit trafficking of organs and human tissues;

q) Abduction, kidnapping and taking of hostages;

r) Racism and xenophobia;

s) Organized robbery or by armed hand;

t) Trafficking in cultural goods, including antiques and works of art;

u) Burla;

v) Extortion of protection and extortion;

x) Counterfeiting and piratagem of products;

z) Falsification of administrative documents and their trafficking;

aa) Falsification of means of payment;

bb) Illicit trafficking in hormonal substances and other growth factors;

cc) Illicit trafficking in nuclear and radioactive materials;

dd) Trafficking of stolen vehicles;

ee) Violation;

ff) Fire post;

gg) Crimes covered by the jurisdiction of the International Criminal Court;

hh) Deviation by plane or ship;

ii) Sabotage.

2-Thessaloniki the provisions of Article 8 (3) with regard to unforeseen situations

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in the preceding paragraph are only permissible recognition and enforcement by the authorities

Portuguese judiciary of apprehension decisions if the facts in question constitute

infringement punishable by Portuguese law, regardless of its elements

constitutive or of their qualification in the right of the issuing State.

3-Also with respect to the situations not provided for in paragraph 1, only the

recognition and implementation by the Portuguese judicial authorities of the decisions of

apprehension for the purposes of subsequent loss of goods if the Portuguese law allows for

apprehension in proceedings by the facts in question, irrespective of their elements

constitutive or of their qualification in the right of the issuing State.

CHAPTER II

Issuance, content and transmission of seizure decision

Article 4.

Portuguese competent authority for the issuance

It is competent to issue the seizure decision relating to goods or evidence

situated in another State-member the Portuguese judicial authority competent for the

same decision in respect of goods located in Portugal.

Article 5.

Content and form

1-A The seizure decision, with a view to the respective recognition and execution, is

accompanied by the certificate attached to this Act, and which of this is an integral part,

duly filled with the information referred to therein.

2-A certificate shall be translated into one of the official languages of the State of execution or

nother official language of the Institutions of the European Communities accepted by this

State upon declaration deposited with the General Secretariat of the Council.

3-A certificate shall be signed and the accuracy of the content attested by the authority

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judicial that orders the measure.

4-A The issuing judicial authority may state the procedures and formalities to

follow by the judicial authority of the executing State who must show indispensable

to ensure the validity of the evidence that is intended to obtain.

Article 6.

Transmission

1-Being known the competent judicial authority for the execution, the authority

judicial officer shall directly convey the decision of seizure, accompanied by the

certificate referred to in the previous article.

2-If the competent judicial authority for the execution is unknown, the authority

judicial issuer shall carry out all necessary enquiries, in particular through

of the contact points of the European Judicial Network, in order to obtain such information

of the executing State.

Article 7.

Supplementary requests

1-The elements referred to in Article 5 shall be accompanied by the

transmission:

a) From a request for transfer of the proof element to the issuing State;

or

b) From a request for the execution of a loss decision delivered by the State of

issue; or

c) From a request for a loss decision by the executing State and its subsequent

execution.

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2-Not being possible to join, since soon, one of the requests referred to in the preceding paragraph,

must include in the certificate a statement for the goods to be kept in the State

of execution pending one of the applications referred to.

3-In the situation referred to in the preceding paragraph, the issuing judicial authority shall

indicate the estimated date for submission of the application, without prejudice to the possibility of

the executing State shall limit the duration of the seizure.

4-The applications referred to in paragraph 1 shall be submitted by the State of Issue and

treaties by the State of implementation in accordance with the rules applicable to the aid

mutual judiciary in criminal matters and international cooperation in the matter of loss.

5-Portuguese judicial authorities may not refuse the requests to which it relates to

point ( a) of paragraph 1 on the basis of the verification of the lack of double jeoparding, when

are in question the offences referred to in Article 3 (1) and these are

punishable in the State of issuance with a custodispend of freedom of maximum duration

not less than three years.

CHAPTER III

Recognition and enforcement of a seizure decision

Section I

Refusal

Article 8.

Causes of refusal of recognition or enforcement

1-A The competent judicial authority may refuse the recognition and enforcement of

an apprehension decision when:

a) The certificate referred to in Article 5 is not presented, please find

incomplete or does not manifestly correspond to the decision of seizure in

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cause;

b) There is immunity or privilege provided for in the law that makes it impossible to carry out the

apprehension decision;

c) Clearly decorates the information constant from the certificate that the execution of

application referred to in Article 7 is contrary to the principle ne bis in idem ;

d) In the cases referred to in Article 3 (2), the fact that has motivated the

issuance of the decision does not constitute infringement punishable by Portuguese law.

2-In the situation referred to in point a) of the previous number, the judicial authority

competent may, in the alternative:

a) Grant a deadline for the certificate to be presented, completed or

fixed;

b) Accept equivalent document;

c) Dispense with the judicial authority of the State of issuance of the presentation of the

certificate, should you consider yourself sufficiently enlightened.

3-A The execution may not be refused on the grounds provided for in the paragraph d) of paragraph 1, in

matter of contributions and taxes, of customs and foreign exchange, by the circumstance of

Portuguese legislation not to predict the same type of contributions and taxes or the

same type of regulation in respect of contributions and taxes, of customs and

of foreign exchange that the legislation of the State of issuance.

4-A The decision to refuse is notified immediately to the judicial authority of the State of

issuance.

Section II

Postponement and impossibility of execution

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Article 9.

Postponement of the implementation

1-A The competent judicial authority may delay the execution of a seizure decision

when:

a) The execution could jeopardizor an ongoing criminal investigation, in which case

may postpone the one during a time period that it considers reasonable;

b) The goods or elements of evidence in question have already been the subject of a decision of

apprehension in a criminal case, and until such a decision cees to produce effects;

c) In the case of a seizure decision for goods with a view to their subsequent

statement of loss, these goods have already been the subject, in Portugal, of a

decision in the framework of another process and until such a decision cede to produce

effects.

2-The provisions of the c) of the preceding paragraph applies only if the decision in question

prevail over subsequent national apprehension decisions in a criminal case to the

shelter from national law.

3-Must be submitted to the judicial authority of the issuing State in the shortest term

possible, a report on the postponement of the execution of the seizure decision in which

to be mentioned the reasons for the postponement and, being possible, the expected duration of the

same.

4-Cessaying the reason for the postponement, the competent judicial authority takes, in the most

short term as possible, the necessary measures to be implemented, being the judicial authority of the

State of issue informed of the fact.

5-A The competent judicial authority informs the judicial authority of the State of

issue about any other restrictive measure that the goods in issue may be

object.

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Article 10.

Impossibility of execution

The competent judicial authority shall notify the judicial authority of the State immediately

of issuance of the practical impossibility of carrying out the seizure decision by the goods or

elements of proof have disappeared, have been destroyed or they cannot be

found in the place indicated on the certificate or by the location of the goods or of the elements

of proof not to have been stated sufficiently precisely, even after consultation with the

State of issue.

Section III

Process of execution

Article 11.

Competence for the implementation

1-It is competent for the execution in Portugal the court with jurisdiction to proceed

to the criminal instruction of the area where the good or element of evidence subject to the decision of

apprehension finds itself at the date of the decision.

2-When the seizure decision covers more than one good or element of proof is

competent the court of the area where the largest number of goods or elements is found

of proof.

3-When it is not possible to determine the court in whose area the largest

number of goods or elements of proof is competent what you first take

knowledge of the seizure decision.

Article 12.

Recognition and execution

1-Received the decision, the judicial authority checks whether it is competent to know from the

same and to follow it up.

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2-When it is not competent, the judicial authority that received the decision transmits it

to the competent judicial authority and of this informs the judicial authority of the State of

interested issue.

3-Verified the compliance of the application to the applicable standards and re-salvaged the application of the

provisions of sections I and II of this Chapter, the competent judicial authority

acknowledges the decision without any other formality being required and orders without

delay the necessary measures to the immediate implementation of the seizure,

4-The procedures for implementing the decision follow the trames provided for in the law

criminal procedural.

5-Without prejudice to the provisions of the preceding paragraph, the judicial authority shall comply, in the

execution, the formalities and procedures expressly indicated by the authority

judicial rule of the State of issuance, where this proves necessary to ensure the

validity of the evidence that is intended to obtain, provided that such formalities and

procedures do not contravenes the fundamental principles of Portuguese law.

6-A Portuguese judicial authority immediately communicates its resolution on the

seizure decision to the judicial authority of the issuing State, whenever

possible within a maximum of 24 hours from the reception of the decision.

7-A The judicial authority immediately communicates to the judicial authority of the State of

issue the execution of the seizure decision.

Article 13.

Temporal duration of the seizure

1-The seized proof goods or elements are kept in that situation until it exists

a definitive decision about any of the applications referred to in paragraph 1 of the article

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7.

2-A competent judicial authority may, after consultation with the State of Issue and

in accordance with national law and practice, determine appropriate conditions

to the circumstances of the case, in order to limit the duration of the seizure.

3-Checking that, in accordance with such conditions, the judicial authority provides for the

lifting of the measure, shall inform the State of issuance of this fact by giving it the

possibility to present his observations.

4-The judicial authorities of the State of issuance immediately inform the authority

competent judicial officer of the revocation of the seizure decision.

5-The judicial authorities receiving an information from the issuing State giving

account of the revocation of an apprehension decision raise the measure immediately.

CHAPTER IV

Communications

Article 14.

Communications between judicial authorities

1-Communications between judicial authorities are carried out by means of allowing the

obtaining a written record from those and, in the case of the transmission of the decision of

apprehension, accompanied with the certificate, the verification of its authenticity.

2-Communications are translated into one of the official languages of the State of execution or

nother official language of the Institutions of the European Communities accepted by this

State upon declaration deposited with the General Secretariat of the Council.

CHAPTER V

Modes of impugning

Article 15.

Resources and requirements

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1-The appeal of a decision to seizure of goods or evidence located in

another member state handed down by Portuguese judicial authority, as well as the

application for modification or revocation of the measure, carry out on the terms

provided for in the Code of Criminal Procedure.

2-The appeal of a decision to seizure of goods or evidence recognized and

performed in Portugal under the provisions of this Law may be submitted

before the Portuguese courts in the terms provided for in the Code of Criminal Procedure.

3-The appeal filed in Portugal and the respective motivation are notified to the

judicial authority of the State of issuance so that it can respond within 10

days.

4-The case is referred to the competent court immediately after the junction of the

response from the judicial authority of the issuing State or finth the deadline for its

presentation.

5-A The judicial authority of the issuing State shall be informed of the result of the appeal.

6-The appeal concerning the fundamentals underlying the issuance of a decision of

apprehension is only admitted before the Portuguese courts in cases where Portugal is

the State of issue.

7-The resources referred to in this article shall have no suspensive effect.

CHAPTER VI

Urgency

Article 16.

Urgent nature of the implementation

1-Acts relating to the procedure referred to in this Law shall be practiced even

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out of the working days and the hours of expediency of the services of justice, and in the period of

judicial vacations.

2-The time limits for the procedure referred to in this Law run on holiday.

CHAPTER VII

Civil liability

Article 17.

Civil liability for implementation

Without prejudice to the provisions of Article 15 (6), when the executing State by force

of its national law, is to be held civilly responsible for the damage caused by the

execution of a seizure decision that has been transmitted to it, the issuing State

must reimburse the State of implementation for the value of the compensation paid, except if, and in the

measure in which, the damage, or part of them, should be in exclusive to the conduct of the State of

execution.

CHAPTER VIII

Final and transitional provisions

Article 18.

Special cases of transmission

In case the United Kingdom or Ireland declares it, in the terms and for the purposes referred to in

n Article 4 (2) of the Council Framework Decision-Table 2003 /577/JAI of July 22, the

transmissions referred to in Article 6 of this Law are carried out through or

central authorities specified in such statements.

Article 19.

Subsidiary law

It shall apply in a subsidiary to the procedure referred to in this Law Code of

Criminal Procedure.

Article 20.

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Entry into force

This Law shall come into force thirty days after its publication.

Seen and approved in Council of Ministers of November 13, 2008

The Prime Minister

The Minister of the Presidency

The Minister of Parliamentary Affairs

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ANNEX

Certificate referred to in Article 5.

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