An extract from The Asset Tracing and Recovery Review, 8th Edition
Seizure and evidencei Securing assets and proceedsCivil proceedings
Under the Portuguese Civil Procedure Code, a claimant may request the judge to adopt any preliminary measures deemed necessary and proportionate to secure his or her rights. Although they are usually instrumental to bringing an asset recovery action, preliminary measures may also be requested after the asset recovery action has been filed.
For this purpose, the claimant will have to provide prima facie evidence of the existence of the right that the requested preliminary measure intends to secure (fumus boni juris), and a serious and concrete risk that the delay could compromise the satisfaction of the asset recovery in the main proceedings (periculum in mora).
In the context of asset recovery claims, the most common preliminary measures requested are the provisional restitution of the possession of certain assets and the attachment of assets, that is, the judicial apprehension of the debtor's assets (e.g., bank accounts, real estate, shares, credits over a third party).
As a general rule, preliminary measures are only issued ex parte if the defendant's prior knowledge could endanger the effectiveness of the measure. This is always the case when the claimant request for the attachment of the debtor's assets or the preliminary restitution of assets. In such circumstance, the defendant is entitled to subsequently challenge said order, after which the same will be confirmed, amended or revoked.Criminal proceedings
The Portuguese Criminal Procedure Code provides for two types of provisional measures with a view to securing assets and proceeds: economic security and preventive seizure (analogous with the preliminary measure of attachment provided under civil law).
Both measures are aimed at guaranteeing:
- payment of the financial penalty, the costs of the proceedings and any other debt to the state related to a crime;
- the loss of instruments, products and advantages of a crime, or the payment of the value thereof; and
- payment of damages or other civil obligations as a result of the crime.
Economic security may be provided by any form of patrimonial guarantee (e.g., deposit, pledge, mortgage or bank guarantee).
The judge can only order such provisional measures at the request of the public prosecutor or the injured party. Preventive seizures ordered in criminal proceedings are immediately revoked if the defendant posts economic security.
In addition, pursuant to the Criminal Procedure Code, all instruments, products or advantages related to the practice of a criminal act are apprehended by the Portuguese Asset Recovery Office (PARO), a specialised asset recovery agency that is part of the national judicial police that operates under orders from the Public Prosecutor's Office. The PARO's mandate is to identify, trace and seize property or proceeds related to criminal activities (both domestically and internationally) and to cooperate with asset recovery offices of other countries. The PARO may access several databases to gather intelligence, including:
- the national tax database;
- the customs database;
- the social security database;
- the insurance and pension database;
- the Securities and Exchange Commission;
- the Bank of Portugal;
- the civil aviation service; and
- the maritime authority.
The PARO also operates as the country's asset recovery office for purposes of EU Council Decision 2007/845/JHA.ii Obtaining evidenceCivil proceedings
In Portuguese civil proceedings, the taking of evidence is mostly carried out within a trial, and is conducted by the court mainly at the request of the parties, with a notable exception being the production of documents, which generally have to be provided by the parties with the pleadings.
Unlike the common law system, Portuguese law does not provide for a disclosure or discovery phase. Further, Portugal lodged a reservation to the Hague Convention with regard to the taking of evidence in civil and commercial matters, declaring that it will not execute letters of request issued for the purpose of obtaining pretrial discovery of documents as practiced in common law countries. Notwithstanding, parties may request that the court orders that certain specific categories of documents in the possession of a counterparty or third party are produced to prove facts alleged in the proceedings, which the court may do if it deems them relevant to the dispute.
With regard to interim relief for obtaining information, the Civil Procedure Code provides that, upon the request of a party, a court can order pretrial testimony and expert evidence or inspection of a place (even, under certain circumstances, prior to the filing of a lawsuit) in the event that there is a serious risk that another party's testimony, or the verification of certain facts by means of expertise or inspection during trial, will be either impossible or extremely difficult.
In addition, Portuguese law provides for an obligation to provide information, and to present things and documents whenever the holder of a right has a well-founded doubt about their existence or their content and someone else is in a position to provide the necessary information. In the circumstance where wrongdoers or third parties do not comply with such obligation, a claimant may file civil proceedings requesting that the same be ordered to provide the relevant information, things or documents. In this context and to the extent that a claimant is able to demonstrate that there is a serious risk that the production of a document subsequent to a court order within such proceedings will be extremely difficult (for instance, due to a risk of destruction), a claimant may ask the court to issue a preliminary measure ordering the obliged party to provide such a document.
The court's decision has to be based on the evidence submitted by the parties. As a general rule, the court can freely assess any evidence at its discretion, but it has to provide the reasons for the assessment made in coming to its decision. Exceptions are made with regard to authentic documents such as public deeds or extracts from the commercial or land registry offices.Criminal proceedings
As previously mentioned, the burden of proof lies with the public prosecutor in Portuguese criminal proceedings. The public prosecutor has to prove, beyond a reasonable doubt, a defendant's guilt in relation to certain criminal offences, or that specific assets are the proceeds of a criminal offence, and therefore must be confiscated.
In criminal proceedings concerning organised crime or financial and economic crime, such as influence peddling, corruption or money laundering, the public prosecutor has powers to lift bank secrecy and to issue a reasoned order to banks and other financial institutions, which must comply in sending any requested information within the allocated time frame. In these cases, video and audio surveillance are permissible when deemed necessary for an investigation of the relevant crimes.
The court shall order, ex officio or upon request, the production of all means of evidence that it deems necessary for the discovery of the truth and for a good decision in a case.
Under the Criminal Procedure Code, evidence is only valid, and can only form the court's conviction, in cases where it is produced or examined before the court at a hearing. An exception is made to evidence contained in procedural acts whose expression, reading or visualisation at a hearing are deemed admissible.