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DRAFT LAW NO. 798 /XII

Illicit enrichment

Exhibition of reasons

The strengthening of the legal awareness of the community and its sense of security in the face of the effective effective of the standards integrated into a particular legal planning constitutes the end first of the criminal sanction. This end first of the penal sanction is necessarily called for the process of legitimation at the time of the abstract realization of the actions or omissions that the legislator chooses to typify, naturally as long as they meet the requirements of the principle of criminal legality. It is therefore our belief that the judgment of legal disvalue in the face of the circumstances in which the patrimony of someone or the continued fruition of heritage is manifestly incompatible in the face of income and declared goods or to declare, is the object of a judgment of strong social censorship. There is effectively a legal awareness of the community of repudiation of the circumstances set out.

Such behaviour is a serious disturbance to the social order and to the protection of social and economic conditions and attentive against fundamental interests of the State. It is a deviant behaviour from the legal order instituted. This judgement is so much more evident in a context in which a serious financial crisis has affected the national and international economy notably with regard to the preservation of economic resources necessary for human, social and economic development, to the confidence in the institutions, and to safeguarding the peaceful coexistence of society, transparency and probity, as well as credibility in the national market, fairness, free competition and equal opportunities, values constituting the essential core of the fundamental interests of the state and community life.

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 preventing and fighting corruption and, still, with the objective to promote integrity, the obligation to render accounts and the proper management of the affairs of public goods and given the injunctions launched by the United Nations, namely:

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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 states ' resources, and threaten political stability and sustainable development; Convinced, too, that corruption is no longer a local but transnational phenomenon that affects all societies and economies, which makes it essential to international cooperation aimed at preventing 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 " . It comes to the same Convention, extending the principle to corruption and embezziness in the private sector, in Articles 21º and 22º. Add that, Portugal ratified the referrer 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 respect 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 uncontroversial that the disparity manifested between the incomes and the heritage of its holder, without determined licit origin, represents a serious social dysfunction. 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. On the other hand, in the model of

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development in which we integrate, the economy potentially operates in the private sector, it is because this scope equally vulnerable to practices of diversion of resources essential to economic, social and human development for other purposes. It should therefore have criminal legislative policy to make matching this judgment of censorship a type of crime that is appropriate to the prevention and repression of the behaviors that are prejudicial to the values of transparency and probity, as well as deviants from the economic, social and human development, while preserving the conformational principles of the State of Democratic Law on par with the guarantee of the operationality of the legal instrument. In these terms, it imposes itself on the criminal law to safeguard the principles of the presumption of innocence and the prohibition of the reversal of the burden of proof by ascribing exclusively to the public ministry, the evidence of the elements of the crime, that is, the addition patrimonial or the fruition of continuance of heritage, the income and goods declared or to be declared from the investigated and the incompatibility between both. Considering, still, that the Constitutional court in the case law of Judgment 179/2012, has substantiated the pronunciation by unconstitutionality of the decree of the Assembly of the Republic No. 37 /XII on the basis of the following key findings:

1. The impossibility of discerning on the basis of incrimination a clearly defined legal good (with criminal dignity);

2. The impossibility of discerning concretely prohibited conduct; 3. The violation of the presumption of innocence of the accused arising from the

typical structure of the standards approved by parliament lead to the presumption of the illicit origin of the incompatibility between heritage and income;

4. Tratar of subsidiary crime. It fulfills us to address the questions of unconstitutionality appreciated in the jurisprudence cited, which is why we promote a more detailed identification of the tutelary legal goods, as well as characterize with greater precision the behavior censored and we ensure that the evidence of the elements of the crime competes exclusively with the Public Prosecutor's Office. On the other hand, and as is constitutionally required, dealing with the application of a criminal penalty, those accused by the practice of the crime that are expected will enjoy all criminal prosecution guarantees, before the courts. So, in the applicable constitutional and regimental terms, the undersigned Deputies, of the PSD and CDS/PP Parliamentary Group present the following bill:

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" Article 1 Amendment to the Criminal Code

1-Is added to Section II of Chapter I of Title V of Book II of the Criminal Code, approved

by Decree-Law No. 400/82 of September 23 and amended by Law No. 6/84 of May 11 by the Decrees-Leis n. 101-A/88 of March 26, 132/93, April 23, and 48/95, of March 15, by the Laws 90/97, July 30, 65/98, 2 of september, 7/2000, May 27, 77/2001, July 13, 97/2001, 98/2001, 99/2001 and 100/2001, of November 28, and 108/2001, of December 17, by December 17, and 38/2003, of March 8, by the Laws 52/2003, of 22, by the Laws of 22 of August, and 100/2003, of November 15, by the Decree-Law No. 53/2004 of March 18 and by the Laws n. 11/2004 of March 27, 31/2004, of July 22, 5/2006, February 23, 16/2007, April 17, 61/2008, October 31, 32/2010, September 2, 40/2010, February 16, 56/2011, November 15, 19/2013, November 15, 19/2013, November 15, 19/2013, of November 15, 19/2013, of November 15, 19/2013, of November 15, 19/2013, of November 15, 19/2013, November 15, 19/2013, November 15, 19/2013, November 15, 19/2013, November 15 February 21, 60/2013, of August 23, by the Organic Law No. 2/2014 of August 6, and by the Laws 59/2014, of August 26, 69/2014, of August 29, and 82/2014, of December 30, Article 335, with the following essay:

" Article 335º-Aº Illicit Enrichment

1-Who per se or for interposed person, singular or collective, obtains an equity addition or fruitfully fruity from an inheritance incompatible with their income and declared assets or which should be declared is punished with imprisonment until three years. 2-A The conduct provided for in the preceding paragraph constitutes a serious disturbance to the social order and to the protection of social and economic conditions and attentive against fundamental interests of the State, in particular with regard to the preservation of economic resources necessary for human, social and economic development, trust and credibility in the institutions, and aims to safeguard the peaceful coexistence of society, transparency of sources of income and probity, credibility in the market national, equity, free competition and equality of opportunity, values that constitute the essential core of the fundamental interests of the state and of community life. 3-For the purposes of the provisions of paragraph 1, it is understood by heritage all the net asset existing in the country or abroad, including the 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, bank accounts, equivalent financial applications and credit rights, as well as expenses carried out with the acquisition of goods or services or relating to liberalities effectuated in the country or abroad. 4-For the purposes of the provisions of paragraph 1, they shall be understood by income and declared goods, or to declare, all gross income set out in the statements made for tax purposes, or that they should appear, as well as income and goods object of any statements or communications required by law or any others of lawful provenance.

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5-For the purposes of paragraph 1, a patrimonial addition shall be deemed to be incompatible with the income and goods declared or to be declared, the difference verified between successive years of the net worth of the agent, when this value exceeds the justifiable through its income and declared goods or to declare. 6-For the purposes of the provisions of paragraph 1, it is understood by fruition of heritage the advantage obtained with expenses of consumer goods or with liberalities carried out in the country or abroad. 7-If the value of the mismatch referred to in paragraph 1 does not exceed 350 monthly minimum wages the conduct is not punishable. 8-If the value of the incompatibility referred to in paragraph 1 exceeds 500 monthly minimum wages the agent is punished with a prison sentence of 1 a to 5 years. " 2-It is amended Article 11º of the Criminal Code, passed by the Decree-Law No. 400/82 of September 23 and amended by Law No. 6/84 of May 11 by the Decrees-Leis n. 101-A/88, of March 26, 132/93, of April 23, and 48/95, of March 15, by the Laws No. 90/97, July 30, 65/98, September 2, 7/2000, May 27, 77/2001, July 13, 97/2001, 99/2001, 99/2001 and 100/2001, November 28, and 108/2001, of November 28, by the Decrees-Laws No. 323/2001, of December 17, and 38/2003 of March 8 by the Laws No 52/2003 of August 22, and 100/2003, of November 15, by the Decree-Law No. 53/2004, of March 18, and by the Leis n. ºs 11/2004 of March 27, 31/2004, July 22, 5/2006, February 23, 59/2007, September 4, 61/2008, October 31, 32/2010, September 2, 40/2010, September 3, 4/2011, 4/2011, 4/2011, 4/2011, 4/2011 of February, 56/2011, of November 15, 19/2013, February 21, 60/2013, August 23, by the Organic Law No. 2/2014 of August 6, and by the Laws No 59/2014 of August 26, 69/2014, August 29, and 82/2014, of December 30 passing the have the following essay:

" Article 11º

(...) 1-(...). 2-Collective persons and equipared entities, with the exception of the State, other public collective persons and international public law organizations, are responsible for the crimes provided for in Articles 152º-A and 152º-B in Articles 159º and 160º, in Articles 163º to 166º being the minor victim, and in articles 168º, 169º, 171º to 176º, 217º to 222º, 240º, 256º, 262º, 262º to 283º, 285º, 335º, 335º, 335º, 335º 335º-A , 348º, 353º, 363º, 367º, 368º-A and 372º to 374º, when committed:

a) (...); or (b) (...).

3-(...). 4-(...) 5-(...). 6-(...). 7-(...). 8-(...). 9-(...). 10-(...).

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11-(...). "

Article 2º Addition to Law No. 34/87 of July 16

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, 4/2011, February 16, and 4/2013, of February 14, with the following essay:

" Article 27º-A

Illicit enrichment

1-The holder of political office or public high office who during the period of the exercise of public functions or in the three years following the cessation of these functions, by himself or by interposed person, singular or collective obtains an equity addition or fruity continuum of an inheritance incompatible with their income and declared goods or to declare, is punished with imprisonment of one to five years. 2-A The conduct provided for in the preceding paragraph constitutes a serious disturbance to the social order and to the protection of social and economic conditions and attentive against fundamental interests of the State, in particular with regard to the preservation of economic resources necessary for human, social and economic development, trust in the institutions, and aims to safeguard the peaceful coexistence of society, transparency and probity, credibility in the national market, fairness, free competition and equality of opportunity, values that constitute the essential core of interests fundamental State and community life 3-For the purposes of the provisions of paragraph 1, the entire net asset existing in the country or abroad, including the real estate, shares, shares or social parts of the capital of civil or commercial corporations, of rights on boats, aircraft or motor vehicles, portfolios of securities, bank accounts, equivalent financial applications and credit rights, as well as the expenses carried out with the acquisition of goods or services or relating to liberalities effected in the country or abroad. 4-For the purposes of the provisions of paragraph 1, they shall be understood by income and declared goods, or to declare, all gross income set out in the statements made for tax purposes, or that they should appear, as well as income and goods object of any statements or communications required by law or any others of lawful provenance. 5-For the purposes of paragraph 1, a patrimonial addition shall be deemed to be incompatible with the income and goods declared or to be declared, the difference verified between successive years of the net worth of the agent, when this value exceeds the justifiable through its income and declared goods or to declare. 6-For the purposes of the provisions of paragraph 1, it is understood by fruition of heritage the advantage obtained with expenses of consumer goods or with liberalities carried out in the country or abroad.

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7-If the value of the mismatch referred to in paragraph 1 does not exceed 100 monthly minimum wages the conduct is not punishable. 8-If the value of the incompatibility referred to in paragraph 1 exceeds 350 monthly minimum wages the agent is punished with a prison sentence of 1 a to 8 years. "

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

Article 26º of Law No. 93/99 of July 14 (regulates the application of measures for the protection of witnesses in criminal proceedings), as amended by the Laws 29/2008, of July 4, and 42/2010, of September 3, passes the following essay:

" Article 26º

( ... )

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

depose about crimes of Chapter IV of Title V of the Criminal Code, the crime of Article 335º-A of the Criminal Code, the crimes of Articles 16º to 18º, 19º, 20º to 27º-A of the Act 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, 4/2011, of February 16, and 4/2013 of February 14, and the crimes of Articles 7º, 8º and 9º of Law No. 20/2008, of April 21. "

Article 4º Amendment to the Code of Criminal Procedure

Article 1º of the Code of Criminal Procedure, approved by the Decree-Law No. 78/87 of February 17, amended by the Decrees-Laws 387-E/87 of December 29, 212/89, of June 30, and 17/91, of January 10, by Law No. 57/91 of August 13, by the Decrees-Laws No 423/91 of October 30, 343/93, October 1, and 317/95, of November 28, by the Laws No 59/98 of August 25, 3/99, January 13, and 7/2000, of May 27, by the Decree-Law No. 320-C/2000 of December 15 by the Laws n. 30-E/2000, of December 20, and 52/2003, of August 22, by the Decree-Law No. 324/2003 of December 27 and by the Law No. 48/2007 of August 29 by the Decree-Law No. 34/2008 of February 26 by the Law No 52/2008 of August 28, 115/2009, October 12, 26/2010, August 30, and 20/2013, of February 21, and by the Organic Law No. 2/2014 of 6 of august, goes on to have the following essay:

" Article 1º

(...) (...):

a) (...); b) (...); (c) (...);

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d) (...); e) (...); f) (...); g) (...); (...); (...); (...); (...); (...); (...); (...); (...); (...); (...);); "Highly organized criminality" of the pipelines that integrate crimes of

criminal association, trafficking in persons, trafficking in arms, trafficking in narcotic drugs or psychotropic substances, corruption, trafficking in influence, economic participation in business, illicit enrichment or bleaching. "

Article 5º Amendment to Law No. 36/94 of September 29

Article 1º of Law No. 36/94 of September 29 (Measures to combat corruption and economic-financial crime), as amended by the Laws 90/99, of July 10, 101/2001, August 25, 5/2002, January 11, and 32/2010, of September 2, passes to have the following essay:

" Article 1º

(...) 1-(...):

a) (...); b) (...), c) (...); d) (...); and) (...); f) Illicit enrichment.

2-(...). 3-(...). "

Article 6º Amendment to Law No. 5/2002 of January 11

Article 1º of Law No. 5/2002 of January 11 (Establishing measures to combat organized and economic-financial crime), as amended by Law No. 19/2008, of April 21, and by Decree-Law No. 317/2009 of October 30, it shall have the following essay:

" Article 1º

(...) 1-(...).

a) (...);

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b) (...); (c); (...); (...); (...); (...); (...); (...); (...); (...); (...); (...); (...); (...); (...); (...); (...); (...); (...); (...); Illicit enrichment.

2-(...). 3-(...). "

Article 7º Amendment to Law No. 101/2001 of August 25

Article 2º of Law No. 101/2001 of August 25 (Legal Regime for covert actions for the purpose of prevention and criminal investigation), goes on to have the following essay:

" Article 2º (...)

(...): a) (...); (b); (...); (...); (...); (...); (...); (...); (...); (...); (...); (...); (...); (...); (...); (...); (...); (...); (...); (...); (...); (...); (...); (...); (...); (...); (...); (...); (...); (...); (...); (...); (...); (...); (...); (...); (...); (...); (...); Illicit enrichment.

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Article 8º Amendment to Law 49/2008 of August 27

Article 7º of the Criminal Investigation Organization Act, adopted by Law No. 49/2008 of August 27, amended by Law No. 34/2013 of May 16, passes the following essay:

" Article 2º

(...) 1-(...). 2-(...):

a) (...); (b); (...); (...); (...); (...); (...); (...); (...); (...); (...); (...); (...); (...); (...); (...); (...); (...); (...); (...); (...); (...); (...); (...); (...); (...); (...); (...); (...); Illicit enrichment.

3-(...). 4-(...). 5-(...). 6-(...). "

Article 9º Amendment to Law No. 4/83 of April 2

Article 2º of Law No. 4/83 of April 2 (Public Control of the Wealth of the Titular of Political Charges), with the amendments introduced by the Laws 38/83, of October 25, 25/95, of August 18, 19/2008, April 21, 30/2008, and 38/2010, of September 2, goes on to have the following essay:

" Article 2º (...)

1-(...). 2-(...): 3-(...): 4-(...).

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5-Under the terms of paragraph 1, the obligation to submit the declaration of income and heritage extinguishes three years after the date of the termination of the function that gave rise to it upon submission of a final declaration . " Palace of Saint Benedict, February 27, 2015

The Deputies,