Key Benefits:
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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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