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DRAFT LAW NO. 72 /XII

ILLICIT ENRICHMENT

Exhibition of reasons

With the aim of promoting and strengthening measures to prevent and combat more effectively and efficiently corruption, as well as with the aim of facilitating and supporting international cooperation in the prevention and fight against corruption and, still, with the objective to promote integrity, the obligation to render accounts and the proper management of the affairs of public goods; Considering the seriousness of the problems and threats that corruption poses to the stability and security of societies, to the extent that it undermines the institutions and values of democracy, ethical values and justice and, to the extent that it compromises the sustainable development and the rule of law; Whereas there are links between corruption and other forms of crime in particular organized crime and economic crime, including money laundering; Considering that cases of corruption involve considerable amounts of assets, and may represent a substantial part of the resources of States, and threaten the political stability and sustainable development of those states; Convinced, too, that corruption is no longer a local but transnational phenomenon that affects all societies and savings, which makes it essential to international cooperation aimed at preventing it and controlling it, Convinced, yet, that a comprehensive and multidisciplinary approach is needed to prevent and combat corruption effectively; The United Nations formulates in Article 20º of the Convention Against Corruption, under the epiggrafe " Illicit enrichment ":" With subjection to its Constitution and the fundamental principles of its legal planning, each State Party shall consider the possibility of adopting the legislative and other intimate measures that are necessary to qualify as an offence, when committed intentionally, the illicit enrichment, that is, the significant increment of a civil servant's heritage concerning his or her legitimate incomes that cannot reasonably be justified by him " . Come the same

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Convention, extend the principle to corruption and the embezziness in the private sector, in Articles 21º and 22º. Portugal ratified the referenced Convention to September 21, 2007, (cfr. Resolution of the AR paragraph 45/2007, 21/09 and Decree of PR paragraph 97/2007, 21/09), thus binding internationally to the principles and objectives set forth therein, which by this way form an integral part of Portuguese Law, without prejudice to the respective and prior materialization in the Constitution of the Portuguese Republic upon the realization of the State of Democratic Law. In this framework, reaffirming that combating corruption is a civic and citizenship fight, which mobilizes the defense of the State of Democratic Law, the primacy of ethics in public and political life, the sanity and transparency of economic life and the struggle for the achievement of high levels of human and global development. It is today a given that the disparity manifested between an employee's incomes and their heritage or way of life, resulting from non-lawful means of acquisition, represents a focus of serious social dangerousness. Nothing further undermines the foundations of the rule of law and free economic development than the ostensible and unwarranted enrichment of political officeholders or those in the exercise of duties, on which they impair special duties of transparency and social responsibility. This judgement is so much more evident in adverse context to economic and social development, not least considering that corruption conforms a damaging factor to the promotion of economic and social development. It must, therefore, the criminal legislative policy make corresponding to this dangerousness judgment a kind of crime of abstract danger, simultaneously preserving the conformational principles of the State of Democratic Law to be aware of the guarantee of the operationality of the legal instrument. In these terms, it imposes itself on the criminal law to safeguard the principle of the presumption of innocence and reversal of the burden of proof by ascribing to the prosecution, the evidence of the elements of the crime, that is, the manifest disproportion between the income of the researcher, and his / her heritage and standard of living, as well as the nexus of contemporaneity between enrichment and the exercise of public functions and, well thus, that that manifest enrichment does not originate from any means of proven licit acquisition. Hence, it has been chosen by the express inscription of a rule on the evidence of the elements of crime in the articles concerning criminal types. As a rule, that, which cannot be more clear: " Incumbent on the Public Prosecutor's Office proof that the

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significant increment of the heritage, or the expenditure incurred by a political office holder or high public office, relating to their legitimate incomes, does not come from proven lawful acquisition, in the general terms of article 283º of the Code of Criminal Procedure. " Thus, and specifically, beyond proof of enrichment manifestly disproportionate to the declared income, it will be up to the Public Prosecutor's Office to demonstrate that such a situation has not come from a means of proven lawful acquisition. Means of lawful acquisition will typically be, for example, the acquisition by inheritance or donation, the rents and interest, other income from the work, the product of the disposal of goods from which it is proprietary, the realization of more-valuable furnished or real estate, the income from the intellectual property or the product of gambling of fortune and gambling. On the other hand, and as it is constitutionally required, dealing with the application of a criminal penalty, those accused by the practice of the crime that are now expected to enjoy all criminal prosecution guarantees, before the courts. In particular, it has chosen to, in the respect of the Constitution, decidedly reject any penalties by administrative or fiscal, which would attest against the fundamental principles of the rule of law. Finally, to protect the witnesses of these crimes, it must provide for the extension of the special protection regime of its witnesses. It is about providing the competent judicial authority with the possibility of using a fundamental instrument to ensure the freedom of testimony of these witnesses. This special protection is also provided for in Article 32 of the United Nations Convention on Corruption. Thus, in the applicable constitutional and regimental terms, the undersigned Deputies, of the PSD and CDS-PP Parliamentarians, present the following bill:,

Article 1º

Amendment to the Criminal Code

A-Section VI of Chapter IV of Title V of the Criminal Code, passed by Decree-Law No. 400/82 of September 23 and amended by Law No. 6/84 of May 11 by the Decrees-Leis paragraphs 101-A/88 of March 26, 132/93, of April 23, and 48/95, of 15 of March, by the Laws 90/97, July 30, 65/98, September 2, 7/2000, May 27, July 13, 97/2001, 98/2001, 99/2001, 99/2001 and 100/2001, November 28, and 108/2001, of November 28, by the Decrees-Leis n. 323/2001 of 17 of December, and 38/2003, of March 8, by the Laws n. ºs 52/2003, August 22, and 100/2003, of 15 of

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November, by the Decree-Law No. 53/2004, of March 18, and by the Laws 11/2004, of March 27, 31/2004, July 22, 5/2006, February 23, 59/2007, September 4, 61/2008, October 31, 32/2010, 2, 2, 2 September, and 40/2010, of September 3, becomes the "Illicit Enrichment", being composed of Article 386º, which is replaced by the following:

" Article 386º

Illicit enrichment

1-Where a significant increment of the heritage occurs, or

of the expenses incurred by an employee, who cannot reasonably be justified, in manifold disproportion to his or her legitimate incomes, with manifest danger from that heritage come from advantages obtained in a way illegitimate in the exercise of duties, it is punishable with imprisonment up to 5 years.

2-For the purposes of the preceding paragraph shall mean by heritage all of the assets existing in the country or abroad, including real estate, quota, shares or social parts of the capital of civil or commercial corporations, of rights on boats, aircraft or motor vehicles, portfolios of securities, term bank accounts, equivalent financial applications and credit rights.

3-For the purposes of paragraph 1 it is understood by expenses incurred, all expenditures on the acquisition of goods or services or relating to liberalities carried out in the country or abroad.

4-For the purposes of paragraph 1, it is understood by legitimate income all gross income set out in the declaration filed for the purposes of settling the income tax of natural persons and, or that of the same devout, when dispensed.

5-Incumbent to the Public Prosecutor's Office proof that the significant increment of the heritage, or the expenditure incurred by an employee, in manifold disproportion to its legitimate incomes, do not stem from proven lawful acquisition, in the general terms of article 283º of the Code of Criminal Procedure. "

2-A current Section VI of Chapter IV of Title V of the Criminal Code becomes Section VII, being composed of the current Article 386º, which becomes Article 387º.

Article 2º

Addition to Law No. 34/87 of July 16

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The Article 27º-A is added to Law No. 34/87 of July 16, amended by the Laws No 108/2001 of November 28, 30/2008, July 10, 41/2010, September 3, and 4/2011, of February 16, with the following wording:

" Article 27º-A Illicit Enrichment

1-Where a significant increment of the heritage occurs, or of the expenditures incurred by a political office holder or public high office, who cannot reasonably be justified by it, in manifest disproportion to the their legitimate incomes, with manifest danger of that heritage come from advantages obtained in an illegitimate manner in the performance of duties, is punishable with imprisonment up to 5 years.

2-For the purposes of the preceding paragraph shall mean by heritage all of the assets existing in the country or abroad, including real estate, quota, shares or social parts of the capital of civil or commercial corporations, of rights on boats, aircraft or motor vehicles, portfolios of securities, term bank accounts, equivalent financial applications and credit rights.

3-For the purposes of paragraph 1 it is understood by expenses incurred, all expenditures on the acquisition of goods or services or relating to liberalities carried out in the country or abroad.

4-For the purposes of paragraph 1, it is understood by legitimate income all gross income set out in the declaration submitted for the purposes of settling the income tax of natural persons and the declaration of heritage and income delivered at the Constitutional Court, or that of the same devout, when dispensed.

5-Incumbent to the Public Prosecutor's Office proof that the significant increment of the heritage, or the expenditures incurred by a political office holder or high public office, in manifest disproportion to their legitimate incomes, not stem from proven lawful acquisition, in the general terms of article 283º of the Code of Criminal Procedure. "

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Article 3º Amendment to Law No. 93/99 of July 14

Article 26º of Law No. 93/99 of July 14, amended by Laws No 29/2008 of July 4, and 42/2010 of September 3 is replaced by the following:

" Article 26º ( ... )

1-(...) 2-(...) 3-A The special vulnerability of the witness may still result from it having

of depose on crimes of Chapter IV of Title V of the Criminal Code, the crime of Article 368º-A of the Criminal Code, the crimes of Articles 16º to 18º, 19º, 20º to 27º-A of Law No 34/87 of July 16, amended by Law No 108/2001 of November 28, 30/2008, of July 10, 41/2010, of September 3, and 4/2011, of February 16, and the crimes of Articles 7º, 8º and 9º of Law No 20/2008 of April 21. "

Palace of S. Bento, September 15, 2011

The Deputies,