Law of 21 December 2021 No. 94/2021 “On Adopting the Measures Provided for by the National Anti-Corruption Strategy and Amending the Criminal Code, the Code of Criminal Procedure and Related Laws” (Aprova medidas previstas na Estratégia Nacional Anticorrupção, alterando o Código Penal, o Código de Processo Penal e leis conexas, hereinafter referred to as the Law) that entered into force on 21 March 2022 makes the following amendments to the legislation.
1. The definition of an “official”
As per the new version of article 386 of the Criminal Code – for the purposes of the criminal law – the list of officials includes, in particular, judges, prosecutors and the Prosecutor General (Procurador-Geral), the Ombudsperson (Provedor de Justiça), members of the Supreme Judicial Council (Conselho Superior da Magistratura), the Superior Council of the Administrative and Tax Courts (Conselho Superior dos Tribunais Administrativos e Fiscais) and the Superior Council for the Public Prosecution (Conselho Superior do Ministério Público), and notaries.
2. Corpus delicti and penalties
Law of 16 July 1987 No. 34/87 “Crimes Committed by Persons Holding Political Positions”, previously applicable also to the persons holding public office, with the adoption of the Law will be applicable only to the persons holding political positions.
With respect to the persons holding political positions, it introduces:
1) A new corpus delicti providing for special liability of such persons for giving or promising, directly or through an intermediary, with his/her consent or approval, undue material or immaterial advantage to a person holding a public or the highest public office, an official or a third person with the knowledge of the aforementioned persons;
2) New types of sanctions: if convicted of a crime punishable with an imprisonment of over three years or a corruption crime, in addition to other sanctions these persons can be prohibited from holding a public office for a period between two and ten years in the event that:
- the crime was a result of the abuse of functions or important misconduct;
- the circumstances limiting the possibilities for the person to hold the political office have been detected;
- the person was dismissed due to the loss of confidence.
As regards the other persons, including the officials found guilty of corruption crimes, the upper limit for holding a certain position, undertaking certain activities or performing certain functions is increased from a period between two and five years up to eight years.
Liability of the persons holding the highest public office for corruption crimes is enshrined in the Criminal Code and provides for:
- an imprisonment for a period between one and five years for getting or offering an undue advantage;
- an imprisonment for a period between two and eight years for passive corruption, and between two and five years if the acts or omissions promised are not against their duties.
The liability for corruption crimes is introduced in the Criminal Code also for:
- public managers;
- members of management bodies of:
1) public companies with limited responsibility performing executive functions;
2) organisations whose shares are owned by the State if they are appointed by the State;
3) companies operating in the business sector at the regional or local level;
4) public institutions;
5) independent administrative units (the authorities established by the Constitution or another legal act and empowered to exercise administrative functions but not subordinate to any public body and having no commercial interest – editor’s note);
- persons holding the highest managerial positions of the first and second level and persons equivalent to them, as well as senior managers of municipal councils and services.
From now on, they can be punished by:
- an imprisonment from one to five years for getting an undue advantage;
- an imprisonment from two to eight years for getting an advantage for any act or omission against their duties or for providing or promising an undue advantage to an official, including those holding the highest public or political office;
- an imprisonment from two to five years for any act or omission which is not against their duties and does not create any advantage, or provision or promise of an undue advantage to an official;
- an imprisonment for a period of up to five years or a fine of 600 days (the amount of payment per day is defined by the court and varies between €5 and €500 – editor’s note) for offering an undue advantage.
In addition, the amendments criminalising an attempt to commit the crime of trading in influence are introduced to the Criminal Code.
3. Mitigating circumstances
The list of mitigating circumstances taken into account in determining the penalty for the persons holding political positions has been expanded: the person that reports a crime before the prosecution starts can now count on the exemption from liability, provided that he/she:
- has not committed the acts (omissions) against his/her duties;
- has provided assistance to the investigation and has made a decisive contribution to solving the crime;
- has voluntarily agreed to compensate the advantage he/she has acquired; or
- has refused to provide an undue advantage or has demanded to return the advantage already provided before the person receiving it commits an act or omission against his/her duties; or
- has refused to provide an undue advantage or has demanded to return the advantage already provided for an act or omission which are not against the duties of the person who received or agreed to get the advantage.
4. Liability of legal persons
The Law introduces liability of legal persons and similar entities, except for public companies, organisations exercising public functions and international organisations, for providing or promising to provide an undue material or immaterial advantage to an official or a third person acting by his/her order or with his/her knowledge, undue receipt of an advantage, trading in influence, embezzlement and irregular engagement in economic activities.
Corporate liability arises in the event that an offence is committed:
- on behalf or instructions of the legal person, in its direct or indirect interest, by persons exercising managerial functions in it; or
- any other person acting on its behalf or instructions, in its direct or indirect interest, supervised by persons exercising managerial functions in the legal person, if the commission of the crime was possible due to the violation by the latter of his/her supervisory or control duties.
In addition to fines, other liability measures for legal persons are introduced:
- issuance of a warning;
- exemption from liability under the condition of appropriate conduct;
- judicial oversight of the activities of the legal persons in the exercise of which the person committed a crime, and/or of the implementation of a compliance programme.
Additionally, under the amendments made to Law of 29 September 1994 No. 36/94 “Measures for Countering Corruption and Economic and Financial Crimes”, a legal person can be obliged to implement the measures for preventing active bribery and offering of undue advantage in the future if it has been convicted of these crimes.
The adoption of the measures to prevent an offence before it is committed by a legal person is considered as a mitigating circumstance which must be taken into consideration in determining the penalty.