The Criminal Procedure Law imposes limits on searches and seizures in places subject to professional secrecy, such as law offices, medical offices and banks. However, these searches have become routine in too many criminal investigations and are being used as an easy means of gathering evidence.
The Council of Ministers has announced the approval of two proposals to amend both the Penal and Criminal Procedural Codes. The proposals will now be submitted to Parliament for discussion and approval. The most significant – and also most controversial – proposed change to the Penal Code relates to the duration of the suspension of the statute of limitations, which has been greatly increased.
Plans to introduce a new crime of illegitimate wealth into the Penal Code have been delayed by the Constitutional Court. Among other things, it held that the proposed amendment to the code would violate the principle of the presumption of innocence, as a discrepancy between a person's wealth and that person's legitimate income and assets would be presumed to be illicit.
A new amendment to the Penal Code may provide a crucial mechanism for preventing corruption, targeting all assets in Portugal or abroad and forcing individuals and companies to provide a full picture of their accounts to the tax authorities. However, doubts remain over whether the new provisions are constitutional.
New legislation has implemented the Convention on Cybercrime, introducing procedural rules for fighting cybercrime that further promote mechanisms for international cooperation. The legislation includes tougher penalties and new powers of data preservation and search and seizure. Moreover, its rules potentially apply to any crime perpetrated using a computer system.
The international financial crisis has led to a flurry of legislative activity as governments have sought to counteract its effects and prevent future problems. Among other things, Portugal's Law 28/2009 sets higher maximum prison terms for unlicensed taking of deposits, insider trading and market manipulation. It also imposes new anti-fraud rules on granting credit to entities in offshore jurisdictions.
In 2005 the Public Prosecutor's Office began investigating suspected tax fraud, illegal appropriation of funds and money laundering by major companies, banks and law firms. It has now sought to suspend criminal proceedings against defendants who have paid their debts, but faces public pressure to bring charges and a judicial view that, in light of the seriousness of the crimes, the process should run its course.
The Constitutional Affairs Committee is reviewing four proposals to reinforce the penalties for breaches of financial legislation. Among the ideas under discussion are an increase in the maximum criminal penalty for market abuse or insider trading, a fast-track process for minor breaches and the creation of special court divisions dedicated to financial crimes.