Unjustified Enrichment (Thirty-Seventh Amendment To The Criminal Code, The Seventh Amendment To Law No. 34/87, Of July 16, Third Amendment To Law No. 93/99, Of 14 July, Twenty-Fourth Amendment To The Criminal Procedure Code, Fifth Amendment To Law No

Original Language Title: Enriquecimento injustificado (Trigésima sétima alteração ao Código Penal, sétima alteração à Lei n.º 34/87, de 16 de julho, terceira alteração à Lei n.º 93/99, de 14 de julho, vigésima quarta alteração ao Código de Processo Penal, quinta alteração à Lei n

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1 DRAFT law No. 798/XII illicit enrichment explanatory memorandum strengthening the legal consciousness of the community and your sense of security given the effective duration of the integrated standards in a given legal system constitutes the end first of criminal sanction. This first of the criminal sanction is necessarily called for the probate process at the time of implementation of the actions or omissions abstract that the legislature chooses to criminalize, of course provided that they meet the requirements of the principle of legality. It is therefore our belief that the judgment of worthlessness of the legal circumstances in which the heritage of someone or the continued enjoyment of heritage is manifestly incompatible to the income and property declared or declared, is the subject of a judgment of social censorship. There is effectively a legal awareness in the community of repudiation of the circumstances set out.
Such behavior constitutes a serious disturbance to social order and the protection of social and economic conditions and infringe fundamental interests of the State.
It is a deviance of the established legal order. This judgment is so more evident against the background of a serious financial crisis affected the national and international economy, particularly with regard to the preservation of the economic resources necessary for human, social and economic development, confidence in the institutions, and to safeguard the peaceful coexistence of society, transparency and probity as well as credibility in the national market, the equity , to free competition and equal opportunities, values that constitute the essential core of the fundamental interests of the State and community life.
With the aim to promote and strengthen measures to prevent and combat corruption more effectively and efficiently, as well as to facilitate and support international cooperation in the prevention and the fight against corruption and to promote the integrity, the obligation to render accounts and proper management of affairs of public goods and taking into account the orders released by the United Nations including: 2 Considering the severity of the problems and threats that corruption poses to the stability and security of societies, to the extent that undermines the institutions and values of democracy, ethical values and justice and, to the extent that undermines the sustainable development and the rule of law; Considering that there are links between corruption and other forms of crime, in particular organized crime and economic crime, including money laundering; Whereas the cases of corruption involve considerable quantities of assets, which may represent a substantial proportion of the resources of States and threaten the political stability and sustainable development; Convinced that corruption is no longer a local phenomenon but transnational affects all societies and economies, making international cooperation essential designed to prevent it and control it, Convinced also of the need for a global and multidisciplinary approach to prevent and combat corruption effectively; The United Nations formulate in article 20 of the Convention against corruption, under the title "illicit enrichment": "With subjection to your Constitution and the fundamental principles of your legal system, each State party shall consider the possibility of adopting the legislative measures and other nature necessary to qualify as a criminal offence, when committed intentionally, illicit enrichment, that is, the significant increase in the assets of a public official concerning his legitimate income that cannot be reasonably justified for him ". Comes the same Convention, extending the principle to corruption and embezzlement in the private sector, in articles 21 and 22. Moreover, Portugal ratified the Convention referenced the September 21, 2007 (cfr. AIR resolution No. 45/2007, of 21/09 and Decree No. 97 of PR/2007, of 21/09), so linking internationally established principles and goals in it, which in this form an integral part of Portuguese Law, without prejudice to the respective prior and materialization in the Constitution of the Portuguese Republic upon implementation of the democratic constitutional State. In this framework, reaffirming that the fight against corruption is a civic and citizenship combat, which mobilizes the defense of the democratic constitutional State, the primacy of ethics in public life and politics, health and transparency of economic life and the struggle for the attainment of high levels of human and global development. It is incontrovertible that today manifest disparity between the income and the assets of your holder, without origin bids determined, represents a serious social dysfunction.
Nothing more mine the foundations of the rule of law and free economic development than the ostensible and unjustified enrichment of holders of political office or who in the exercise of functions, which carry special obligations of transparency and social responsibility. On the other hand, the model of development in which we integrate 3, potentially economy operates in the private sector, is because this framework also vulnerable to diversion of resources practices essential to economic, social and human development for other purposes. Should the criminal legislative policy making correspond to this judgment of censorship a crime type suitable for the prevention and repression of behaviour contrary to the values of transparency and probity as well as deviants of the economic, social and human development, at the same time preserving the conformadores principles of the democratic rule of law together with the assurance of operability of the legal instrument. In these terms, the criminal law to safeguard the principles of presumption of innocence and the prohibition of reversal of the burden of proof, the Prosecutor, the proof of the elements of the crime, that is, the addition of assets or the enjoyment of continued income and heritage goods declared or to declare the investigated and the incompatibility between the two. Whereas, moreover, the Constitutional Court in the case-law of the scholarly Judgment 179/2012, substantiate the indictment unconstitutional Decree of the Assembly of the Republic n° 37/XII, based on the following key conclusions: 1. The impossibility to discriminate on the basis of criminality a legal

clearly defined (with criminal dignity); 2. The inability to discern the conduct specifically prohibited;
3. The violation of the presumption of innocence of the accused due to the typical structure of the rules adopted by Parliament lead to the presumption of the illicit origin of the mismatch between the assets and the income; 4. Is supplementary crime. We must respond to issues of unconstitutionality enjoyed in the jurisprudence cited, which is why we promote a more detailed identification of goods subject to legal as well as featured with greater precision the behavior censored and guarantee that the elements of crime purely to the public prosecutor. On the other hand, and as is constitutionally required, in the case of applying a criminal penalty, the accused for committing that crime will enjoy all the guarantees of criminal proceedings before the courts.
Thus, in accordance with the rules applicable and constitutional, the undersigned, Members of the Parliamentary Group of the PSD and the CDS/PP feature the following Bill: 4 "article 1 amendment to the Penal Code 1-is added to section II of chapter I of title V of book II of the Penal Code, approved by Decree-Law No. 400/82, of 23 September , and amended by law No. 6/84, of 11 may, by decree-laws Nos. 101-A/88, of 26 March, 132/93, 23 April, and 48/95, of 15 March, by laws Nos. 90/97 of 30 July, 65/98, of 2 September, 7/2000, may 27, 77/2001 of 13 July , 97/98, 2001/2001, 99/2001 and 100/2001 of 25 August, and 108/2001, of 28 November, by decree-laws Nos. 323/2001, of 17 December, and 38/2003, 8 March, by laws Nos. 52/2003, of 22 August, and 100/2003, of November 15, by Decree-Law No. 53/2004, of March 18 , and by laws Nos. 11/2004 of 27 March, 31/2004, of 22 July, 5/2006, of 23 February 16/17 April, 2007, 59/2007, of 4 September, 61/2008, of 31 of October, 32/2010 of 2 September, 40/2010, September 3, 4/2011, February 16, 56/2011 , of 15 November 19/2013, of 21 February, 60/2013, of 23 August, by organic law No. 2/2014, of 6 August, and by laws Nos. 59/2014, of 26 August, 69/2014, of 29 August, and 82/2014, of 30 December, the 335.º-the article, as follows: "Article 335º-the No. 1 illicit enrichment-Who by themselves or through an intermediary , singular or collective, get an extra sheet or enjoy a heritage continuously incompatible with their incomes and assets declared or which must be declared is punished with imprisonment up to three years.
2-the conduct referred to in the preceding paragraph constitutes a serious disturbance to social order and the protection of social and economic conditions and infringe fundamental interests of the State, particularly with regard to the preservation of the economic resources necessary for human, social and economic development, confidence and credibility in the institutions, and aims to safeguard the peaceful coexistence of society, transparency of sources of income and probity , the national market credibility, fairness, free competition and equal opportunities, values that constitute the essential core of the fundamental interests of the State and community life.
3-for the purposes of paragraph 1, all active assets liquid assets in the country or abroad, including capital property, quotas, or shares of capital stock of civil or commercial companies, rights to boats, aircraft or motor vehicles, portfolios of securities, bank accounts, investments and credit equivalents, as well as expenses incurred with the acquisition of goods or services or otherwise relating to donations made to the country or in foreigner.
4-for the purposes of paragraph 1, income and property declared, or to declare, all gross income in the statements submitted for tax purposes, or who should be included, as well as income and durable object of any representations or communications required by law or any other lawful provenance.

5 5-for the purposes of paragraph 1, it is incompatible with the assets increase income and goods declared or to declare the difference between successive years in net worth of the agent, when this value exceeds the justifiable through its income and property declared or declared.
6-for the purposes of paragraph 1, ' enjoyment of the heritage benefit obtained with costs of consumer goods or with donations made in the country or abroad.
7-If the value of the incompatibilities referred to in paragraph 1 do not exceed 350 monthly minimum wages the conduct is not punishable.
8-If the value of the incompatibilities referred to in paragraph 1 exceed 500 monthly minimum wages the agent is punished with imprisonment from 1 to 5 years.»
2-changes in article 11 of the Penal Code, approved by Decree-Law No. 400/82, of 23 September and amended by law No. 6/84, of 11 may, by decree-laws Nos. 101-A/88, of 26 March, 132/93, 23 April, and 48/95, of 15 March, by laws Nos. 90/97 of 30 July , 65/98, of 2 September, 7/2000, may 27, 77/2001 of 13 July 2001, 97/98/2001, 99/2001 and 100/2001 of 25 August, and 108/2001, of 28 November, by decree-laws Nos. 323/2001, of 17 December, and 38/2003, 8 March, by laws Nos. 52/2003 , of 22 August, and 100/2003, of November 15, by Decree-Law No. 53/2004, 18 March, and by laws Nos. 11/2004 of 27 March, 31/2004, of 22 July, 5/2006, of 23 February 16/17 April, 2007, 59/2007, of 4 September, 61/2008, of 31 of October , 32/2010 of 2 September, 40/2010, September 3, 4/2011, February 16, 2011, 56/15 November, 19/2013, of 21 February, 60/2013, of 23 August, by organic law No. 2/2014, of 6 August, and by laws Nos. 59/2014, of 26 August, 69/2014, August 29 , and 82/30 December 2014, which shall be replaced by the following: ' article 11 (...)
1 – (…).
2-people collective and similar entities, with the exception of the State, of other people public and international organisations conferences, are responsible for the crimes provided for in articles 152-A and 152-B, in articles 159 and 160, articles 163 to 166 being the minor victim, and in articles 168, 169, 171 to 176, 217 to 222, 240° 256º, 258º, 262nd, the 283º, 285, 299, 335º, 335º-A, 348º, 353, 363, 367º, 368º-372º and the 374º, when committed: a) (...); or (b)) (...). 3 – (…).
4 – (…)
5 – (…).
6 – (…).
7 – (…).

8 – (…).
9 – (…).
10-(...).

6 11 – (...).»

Article 2 Amendment to law No. 34/87, of July 16 article 27 shall be added to the law No. 34/87, of July 16, as amended by laws Nos. 108/2001, of 28 November, 30/2008 of 10 July, 41/2010, September 3, 4/February 16, 2011, and 4/2013, February 14 , as follows: "article 27-the illicit enrichment 1-the holder of political office or high public office that during the period of exercise of public functions or in the three years following the cessation of these functions by themselves or through an intermediary, singular or collective gets an extra sheet or enjoy a heritage continuously incompatible with their incomes and assets declared or declared , is punished with imprisonment of one to five years.
2-the conduct referred to in the preceding paragraph constitutes a serious disturbance to social order and the protection of social and economic conditions and infringe fundamental interests of the State, particularly with regard to the preservation of the economic resources necessary for human, social and economic development, confidence in institutions, and aims to safeguard the peaceful coexistence of society, transparency and probity , the national market credibility, fairness, free competition and equal opportunities, values that constitute the essential core of the fundamental interests of the State and community life 3-for the purposes of paragraph 1, all active assets liquid assets in the country or abroad, including capital property, quotas, or shares of capital stock of civil or commercial companies rights on boats, aircraft or motor vehicles, portfolios of securities, bank accounts, investments and credit equivalents, as well as expenses incurred with the acquisition of goods or services or otherwise relating to donations made in the country or abroad.
4-for the purposes of paragraph 1, income and property declared, or to declare, all gross income in the statements submitted for tax purposes, or who should be included, as well as income and durable object of any representations or communications required by law or any other lawful provenance.
5-for the purposes of paragraph 1, it is incompatible with the assets increase income and goods declared or to declare the difference between successive years in net worth of the agent, when this value exceeds the justifiable through its income and property declared or declared.
6-for the purposes of paragraph 1, ' enjoyment of the heritage benefit obtained with costs of consumer goods or with donations made in the country or abroad.

7 7-If the value of the incompatibilities referred to in paragraph 1 do not exceed 100 minimum monthly wages to conduct is not punishable.
8-If the value of the incompatibilities referred to in paragraph 1 exceed 350 monthly minimum wages the agent is punished with imprisonment from 1 to 8 years.»
Article 3 amendment to law No. 93/99, of 14 July article 26 of law No. 93/99, of 14 July (regulates the application of measures for the protection of witnesses in criminal procedure), as amended by laws Nos. 29/2008, of 4 July, and 42/2010 of 3 September, shall be replaced by the following:% quot% article 26 (...) 1-(...) 2-(.) 3-the special vulnerability of the witness may still result in her having to testify about crimes of Chapter IV of title V of the Penal Code, the crime of the article 335º-the Penal Code, crimes of articles 16 to 18, 19, 20 to 27 of law No. 34/87, of July 16, as amended by law No. 108/2001 s , 28 November 30/2008 of 10 July, 41/2010, September 3, 4/February 16, 2011, and 4/2013 of 14 February, and the crimes of articles 7, 8 and 9 of law No. 20/2008, of April 21.»
Article 4 amendment to the code of criminal procedure article 1 of the code of criminal procedure, approved by Decree-Law No. 78/87, of 17 February, amended by decree-laws Nos 387/87, and December 29, 212/89, of 30 June, and 17/91, of 10 January, by law No. 57/91 of 13 August, by Decree-Law No. 423/91 s , of 30 October, 343/93, of October 1, and 317/95 of 28 November, by laws Nos. 59/98, of 25 August, 3/99, of 13 January, and 7/2000, of 27 May, by Decree-Law No. 320-C/2000, of 15 December, by laws Nos 30-E/2000, of 20 December , and 52/2003, of 22 August, by Decree-Law No. 324/2003, of 27 December, and by law No. 48/2007, of 29 August, by Decree-Law No. 34/2008, of 26 February, by law No. s 52/2008 of 28 August, 115/2009 of 12 October, 26/2010 of 30 August, and 20/2013 , of 21 February, and by Law No. 2/2014, August 6, shall be replaced by the following: ' article 1 (...)
(…): a) (…);
b) (…);
c) (…);

8

d) (…);
e) (…);
f) (…);
g) (…);
h) (…);
i) (…);
j) (…);
l) (…);
m) "highly organized Crime" the ducts that integrate racketeering crimes, human trafficking, arms trafficking, trafficking in narcotic drugs or psychotropic substances, corruption, trafficking in influence, economic participation in business, illicit enrichment or bleaching.»
Article 5 amendment to law No. 36/94, of 29 September article 1 of law No. 36/94, of 29 September (measures to fight corruption and financial crime), as amended by laws Nos. 90/99, of July 10, 101/2001 of 25 August, 5/2002, of 11 January, and 32/2010 of 2 September , shall be replaced by the following: ' article 1 (...)
1 - (…): a) (…);
b) (…),
c) (…);
d) (…);
e) (…);
f) illicit enrichment. 2 – (…).
3 – (…).»
Article 6 amendment to law No. 5/2002, of 11 January, the article 1 of law No. 5/2002, of 11 January (Establishes measures to fight organized crime and financial), as amended by law No. 19/2008, of April 21, and by Decree-Law No. 317/2009, of 30 October, shall be replaced by the following: ' article 1 (...)
1 - (…). a) (…);

9

b) (…);
c) (…);
d) (…);
e) (…);
f) (…);
g) (…);
h) (…);
i) (…);
j) (…);
l) (…);
m) (…);
n) (…);
o) illicit enrichment. 2 – (…).
3 – (…).»

Article 7 amendment to law No. 101/2001, of August 25 article 2 of law No. 101/2001 of 25 August (Legal Regime of covert actions for purposes of prevention and criminal investigation), shall be replaced by the following: ' article 2 (...) (…):
a) (…);
b) (…);
c) (…);
d) (…);
e) (…);
f) (…);
g) (…);
h) (…);
i) (…);
j) (…);
l) (…);
m) (…);
n) (…);

o) (…);
p) (…);
q) (…);
r) (…);
s) illicit enrichment.

10 article 8 amendment of law 49/2008, August 27 Article 7 of the law of Organization of Criminal investigation, approved by law No. 49/2008, of 27 August, amended by law No. 34/may 16, 2013, shall be replaced by the following: ' article 2 (...)
1 - (…).
2 – (…): a) (…);
b) (…);
c) (…);
d) (…);
e) (…);
f) (…);
g) (…);
h) (…);
i) (…);
j) (…);
l) (…);
m) (…);
n) (…);
o) (…);
p) (…);
q) (…);
r) illicit enrichment. 3 – (…).
4 – (…).
5 – (…).
6 – (…).»

Article 9 amendment to law No. 4/83, of April 2 article 2 of law No. 4/83 of 2 April (public control of the wealth of holders of political office), as amended by laws Nos. 38/83, of 25 October, 25/95, of 18 August, 19/2008, of April 21, 30/2008 , 10 July, and 38/2010 of 2 September, shall be replaced by the following: ' article 2 (...) 1 – (…).
2 – (…):
3 – (…):
4 – (…).

11 5-pursuant to paragraph 1, the obligation to submit the Declaration of income and assets expires three years after the date of cessation of function that gave rise through the presentation of a final statement.»
São Bento Palace, 27 February 2015 members

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