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PRESIDENCY of the COUNCIL of MINISTERS 1 Proposal of law No. 237/X explanatory memorandum to 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 framework of the execution in the European Union the decisions of seizure of goods or evidence referred to in the framework decision No. 2003/577/JHA of 22 July, constitutes a new achievement in the context of the aforementioned criminal principle of mutual recognition, reflected in the Portuguese law already, by law No. 65/2003, of 23 August , which approved the legal framework of the European arrest warrant. This framework decision aims to create a harmonized legal regime of recognition and enforcement in the Member States of the European Union of confiscation decisions taken by a judicial authority of another Member State, in the context of a criminal procedure, anchoring in confidence that the 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 emission and transmission, Portuguese judicial authorities, decisions of seizure for the purposes of gathering evidence or of subsequent confiscation of property in the context of criminal proceedings, with a view to its recognition and enforcement in another Member State of the European Union. Also sets out the legal framework of recognition and implementation in Portugal of the seizure decisions taken by a judicial authority of another Member State of the European Union in the framework of criminal proceedings.
PRESIDENCY of the COUNCIL of MINISTERS 2 dedicates a rapid and simple procedure best suited contemporary needs in criminal matters, giving thus a significant step towards the construction of the European area of freedom, security and justice. Were heard the Superior Council of the judiciary, the Attorney-General's Office and the Bar Association. So: under d) of paragraph 1 of article 197 of the Constitution, the Government presents to the Assembly of the Republic the following Bill: chapter I objective, definitions and scope of application Article 1 subject-matter 1-this law establishes the legal regime of emission and transmission, Portuguese judicial authorities, decisions of seizure for the purposes of gathering evidence or of subsequent confiscation of property in criminal proceedings with a view to its recognition and enforcement in another Member State of the European Union. 2. this law also establishes the legal regime of recognition and implementation in Portugal of the seizure decisions taken by a judicial authority of another Member State of the European Union in the framework of criminal proceedings, for the purposes of gathering evidence or of subsequent confiscation of property. 3-the execution in the European Union the decisions of seizure of goods or evidence is based on the principle of mutual recognition and carried out in accordance with the provisions of framework decision 2003/577 number/JHA of the Council of 22 July.
PRESIDENCY of the COUNCIL of MINISTERS 3 article 2 definitions for the purposes of this law,: a) ' issuing State ' means the Member State in which a judicial authority, as defined in the national law of that State, take, validate or confirm somehow an order to seize, in criminal proceedings; b) "executing State ' means the Member State in whose territory the well or the evidence; c) ' order to seize ' means any action taken by a competent judicial authority of the issuing State to prevent destruction operations temporarily, transformation, movement, transfer or disposal of assets can be subject to loss or which may constitute evidence; d) ' Goods ' means goods of any description, whether corporeal or incorporeal, movable or immovable, legal act or document certifying a title or right to property, for which the competent judicial authority of the issuing State considers that: (i)) Are 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) Constitute the instrument or the object of such an offence. e) «evidence», the object, document or data which can serve as evidence in criminal proceedings concerning the offence referred to in the following article.
PRESIDENCY of the COUNCIL of MINISTERS 4 Article 3 scope 1-shall be recognised and enforced without verification of the double criminality of the fact of seizure decisions taken within the framework of criminal proceedings which respect the following facts, since, in accordance with the law of the issuing State, these are punishable with a custodial sentence of a maximum period of at least three years : a) Participation in a criminal organisation; b) Terrorism; c) trafficking in human beings; d) sexual exploitation of children and child pornography; e) illicit traffic in narcotic drugs and psychotropic substances; f) illicit trafficking in weapons, munitions and explosives; g) Corruption; h) Fraud, including fraud affecting the financial interests of the European communities, within the meaning of the Convention of 26 July 1995 on the protection of the European Communities ' financial interests; I) laundering of proceeds of crime; j) counterfeiting, including counterfeiting of the euro; l) computer-related crime; m) environmental crime, including illicit trafficking in endangered animal species and in endangered plant species and varieties; n) facilitation and the irregular stay;
PRESIDENCY of the COUNCIL of MINISTERS the 5) voluntary manslaughter and grievous bodily harm; p) illicit trade in human organs and human tissue; q) kidnapping, illegal restraint and hostage-taking; r) racism and xenophobia; s) organised or armed robbery; t) trafficking in cultural goods, including antiques and works of art; u) Fraud; v) racketeering and extortion; x) counterfeiting and piracy of products; z) forgery of administrative documents and trafficking; AA) Forgery of means of payment; BB) illicit trafficking in hormonal substances and other growth promoters; CC) illicit trafficking in nuclear or radioactive materials; DD) trafficking in stolen vehicles; EE) Violation; FF) arson; Gg) Crimes within the jurisdiction of the International Criminal Court; HH) unlawful seizure of aircraft or vessel; II) Sabotage.
2-subject to the provisions of paragraph 3 of article 8, with regard to situations not provided for PRESIDENCY of the COUNCIL of MINISTERS in paragraph 6 shall be admissible only recognition and enforcement by the Portuguese judicial authorities of decisions of seizure if the facts in question constitute an offence punishable by law, regardless of their constituent elements or their qualification in the law of the issuing State. 3-Also in the case of situations not provided for in paragraph 1, shall be admissible only recognition and enforcement by the Portuguese judicial authorities of decisions of seizure for the purposes of subsequent confiscation of property if the Portuguese law allow the seizure in the process by the facts concerned, regardless of their constituent elements or their qualification in the law of the issuing State. CHAPTER II issue, content and transmission of order to seize article 4 competent Portuguese Authority for issuing jurisdiction to issue the order to seize on the goods or evidence located in another Member State the competent Portuguese judicial authority to the same decision on the assets located in Portugal. Article 5 content and form 1-the decision of seizure with a view to its recognition and enforcement, is accompanied by the certificate annexed to this law, and that this is an integral part, duly completed with the information referred to therein. 2-the birth certificate must be translated in one of the official languages of the executing State or in another official language of the institutions of the European communities accepted by this State upon declaration deposited with the General Secretariat of the Council. 3-the certificate must be signed and the accuracy of the contents attested by the PRESIDENCY of the COUNCIL of MINISTERS ordering the judicial measure 7. 4-the issuing judicial authority may indicate the following procedures and formalities by the judicial authority of the executing state that are indispensable to ensure the validity of the evidence which seeks to obtain. Article 6 Transmission 1-Being known to the competent judicial authority for execution, the issuing judicial authority transmits directly the decision of seizure, together with the certificate referred to in the previous article. 2-If the competent judicial authority for execution is unknown, the issuing judicial authority carries out all necessary inquiries, including via the contact points of the European judicial network, in order to obtain that information from the executing State. Article 7 additional Applications 1-the elements referred to in article 5 must be accompanied, when: a) Of a request for transfer of the evidence to the issuing State; or b) Of a request for execution of a confiscation order issued by the issuing State; or c) a request for the confiscation by the executing State and subsequent execution.
PRESIDENCY of the COUNCIL of MINISTERS 8
2-it is not possible to join, of course, one of the applications referred to in the preceding paragraph, shall include in the certificate a statement to which the goods are kept in the executing state pending a 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 to limit the duration of the seizure. 4-requests referred to in paragraph 1 shall be submitted by the issuing State and processed by the executing State in accordance with the rules applicable to mutual assistance in criminal matters and for international cooperation in the field of waste. 5-The Portuguese judicial authorities may refuse the requests referred to in point (a)) of paragraph 1 on the basis of the verification of the absence of dual criminality, when the offences are concerned referred to in paragraph 1 of article 3 and these are punishable in the issuing State by a custodial sentence of a maximum period of at least three years. CHAPTER III recognition and enforcement of a judgment of seizure section I article 8 Refusal Causes for refusal of recognition or enforcement 1-competent judicial authority can refuse the recognition and enforcement of a decision to arrest when: a) the certificate referred to in article 5 is not presented, is incomplete or manifestly does not correspond to the order to seize in PRESIDENCY of the COUNCIL of MINISTERS 9; b) there is immunity or privilege provided for in the law that would prohibit the execution of the decision of seizure; c) Runs clear from the information contained in the certificate that the execution of application referred to in article 7 is contrary to the principle of ne bis in idem; d) in the cases referred to in paragraph 2 of article 3, the fact that has motivated the issuing of the decision does not constitute an offence punishable by law. 2-in the situation referred to in point (a)) of the preceding paragraph, the competent judicial authority may, alternatively: a) Grant a term for which the certificate is submitted, completed or corrected; b) accept an equivalent document; c) dispense with the judicial authority of the issuing State of the presentation of the certificate if it is considered sufficiently clarified. 3-the execution may not be refused on the grounds provided for in point (d)) of paragraph 1, in respect of contributions and taxes, customs and Exchange, by the fact that the Portuguese legislation does not provide for the same kind of contributions and taxes or the same type of rules as regards taxes, duties and customs and Exchange that the law of the issuing State. 4-the decision for refusal shall be notified immediately to the judicial authority of the issuing State.
Section II Delay and impossibility of execution PRESIDENCY of the COUNCIL of MINISTERS 10 article 9 deferment of execution 1-the competent judicial authority may postpone the execution of a decision of arrest when: a) the execution might damage an ongoing criminal investigation, in which case you can postpone that until such time as it deems reasonable; b) The property or evidence concerned have already been the subject of a decision on seizure in criminal proceedings, and until that decision ceases to have effect; c) in the case of a decision of seizure of goods with a view to its subsequent confiscation, those goods have been subject, in Portugal, of a decision in the context of another process and until that decision ceases to have effect. 2-the provisions of paragraph (c)) of the preceding paragraph applies only if the decision at issue prevail over national decisions later seizure in criminal proceedings under national law. 3-Must be submitted to the judicial authority of the issuing State, as soon as possible, a report on the postponement of execution of a decision on seizure in which they mention the reasons for the postponement and, if possible, the expected duration of the same. 4-Ceasing the reason for the postponement, the competent judicial authority here, as soon as possible, the measures necessary for the implementation, being the judicial authority of the issuing State informed. 5-the competent judicial authority reports on the judicial authority of the issuing State about any other restraint measure to which the goods may be subject.
PRESIDENCY of the COUNCIL of MINISTERS 11 article 10 Impossibility of execution the competent judicial authority shall notify the judicial authority of the issuing State of the impossibility to execute the decision of seizure by the goods or evidence have disappeared, have been destroyed or could not be found in the location indicated in the certificate or the location of the goods or of the evidence has not been shown sufficiently needs even after consultation with the issuing State. Section III article 11 execution process responsible for running 1-is competent for execution in Portugal the Court with jurisdiction for the area where the criminal fine or evidence in respect of which the order to seize on the date of the decision. 2-When the decision of seizure involves more than a fine or piece of evidence the Court of the area where the greatest number of assets or evidence. 3-When it is not possible to determine the Court in whose area the greater number of assets or evidence shall have jurisdiction which first takes note of the decision of seizure. Article 12 recognition and enforcement 1-Received the decision, the judicial authority checks whether it's jurisdiction and to deal with.
PRESIDENCY of the COUNCIL of MINISTERS 12 2-When is not competent, the judicial authority that received the decision is transmitted to the competent judicial authority and that reports on the judicial authority of the issuing State concerned. 3-Checked the completeness of the application to the rules and subject to the application of the provisions of sections I and II of this chapter, the competent judicial authority recognizes the decision without requiring any other formality and orders without delay the measures necessary for the immediate execution of the seizure, 4-execution of decision procedures follow the procedures provided for in the criminal procedure law. 5-Notwithstanding the previous paragraph, the judicial authority shall respect, on execution, the formalities and procedures expressly indicated by the judicial authority of the issuing State, where this is necessary to ensure the validity of the evidence which seeks to obtain, provided that such formalities and procedures are not contrary to the fundamental principles of Portuguese law. 6-the Portuguese judicial authority shall communicate immediately to its resolution on the order to seize the judicial authority of the issuing State, whenever possible within 24 hours of receipt of the decision. 7-the judicial authority shall communicate immediately to the judicial authority of the issuing State to execute the order to seize.
Article 13 temporal Duration of seizure 1-the property or evidence seized are kept in this situation until there is a final decision about any of the claims referred to in paragraph 1 of the article PRESIDENCY of the COUNCIL of MINISTERS 13 7 2-the competent judicial authority may, after consultation with the issuing State and in accordance with national law and practice , determine conditions suitable to the circumstances of the case, in order to limit the duration of the seizure. 3-which, in accordance with such conditions, the judicial authority provides for the lifting of the measure, it shall inform the issuing State accordingly, giving you the opportunity to submit its observations. 4-the judicial authorities of the issuing State shall inform the competent judicial authority immediately of the revocation of seizure. 5-the judicial authorities which receive information from the issuing State realizing the revocation of an order to seize raise the measure immediately. CHAPTER IV article 14 Communications Communication between judicial authorities 1-communication between judicial authorities are carried out by means a written record of those and, in the case of transmission of the order to seize, accompanied by the certificate, verification of its authenticity. 2-communications are translated in one of the official languages of the executing State or in another 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 ways to challenge article 15 resources and COUNCIL of MINISTERS PRESIDENCY requirements 14
1-the appeal against a decision of seizure of goods or evidence located in another Member State by Portuguese judicial authority, as well as the application for modification or repeal of the measure, shall be laid down in the code of criminal procedure. 2-the appeal against a decision of seizure of goods or evidence recognised and enforced in Portugal under the provisions of this law may be lodged before the courts in accordance with Portuguese code of criminal procedure. 3-the appeal in Portugal and the explanatory memorandum are notified to the judicial authority of the issuing State so that it can respond within 10 days. 4-the case is referred to the competent court immediately after the junction of the response of the judicial authority of the issuing State or expiry of the time limit for their submission. 5-the judicial authority of the issuing State shall be informed of the outcome of the appeal. 6-the resource for fundamentals underlying the issuance of an order to seize is only admitted in the Portuguese courts in cases where Portugal is the issuing State. 7-the resources referred to in this article shall not have suspensory effect.
CHAPTER VI article 16 Emergency urgent Nature of implementation 1-procedure-related acts covered by this law practice right PRESIDENCY of the COUNCIL of MINISTERS 15 outside the working days and hours of services of Justice, and the Court vacation. 2-time limits relating to the procedure referred to in this law run on vacation. CHAPTER VII liability article 17 liability for execution without prejudice to the provisions of paragraph 6 of article 15, where the executing State under its national law, is held responsible civilly for damage caused by the enforcement of a judgment of seizure that was transmitted, the issuing State shall reimburse the State of implementation by the value of the compensation paid except if and to the extent that the damage, or part of them, are due exclusively to the conduct of the executing State. CHAPTER VIII transitional and final provisions article 18 special cases of transmission If the United Kingdom or Ireland the declares, in accordance with and for the purposes referred to in paragraph 2 of article 4 of the framework decision No. 2003/577/JHA of 22 July, the transmissions referred to in article 6 of this law are made through the central authorities specified in such statements. Article 19 supplementary law shall apply subsidiarily to the procedure referred to in this law, the code of criminal procedure. Article 20 PRESIDENCY of the COUNCIL of MINISTERS 16 entry into force this law shall enter into force thirty days after their publication.
Seen and approved by the Council of Ministers of 13 November 2008 the Prime Minister, the Minister of Parliamentary Affairs Minister Presidency, PRESIDENCY of the COUNCIL of MINISTERS 17 ANNEX a certificate referred to in article 5 PRESIDENCY of the COUNCIL of MINISTERS of the COUNCIL of MINISTERS PRESIDENCY 18 19 20 PRESIDENCY of the COUNCIL of MINISTERS PRESIDENCY of the COUNCIL of MINISTERS of the COUNCIL of MINISTERS PRESIDENCY 21 22 23 COUNCIL of MINISTERS PRESIDENCY PRESIDENCY of the COUNCIL of MINISTERS
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