Part I
General

CHAPTER I
Subject-matter, scope and general principles of international judicial co-operation in criminal matters


Article 15
Concurrent requests

1. If, for the same or for different facts, international co-operation is requested by two or more States, co-operation shall be afforded to the State that, in view of the circumstances of the case, might better safeguard both the interests of justice and the interests of the social rehabilitation of the suspect, the accused or the sentenced person.

2. The provisions of the preceding paragraph:

a) in the cases covered by Article 1.2, shall cede against the rule according to which international jurisdiction shall have primacy over national jurisdiction;

Part I
General

CHAPTER I
Subject-matter, scope and general principles of international judicial co-operation in criminal matters


Article 18
Optional refusal of international co-operation

1. International co-operation may be refused if the facts that substantiate the request are the subject of criminal proceedings, or if they should or may be the subject of criminal proceedings for which a Portuguese judicial authority has jurisdiction.

Part I
General

CHAPTER I
Subject-matter, scope and general principles of international judicial co-operation in criminal matters

Article 15
Concurrent requests

1. If, for the same or for different facts, international co-operation is requested by two or more States, co-operation shall be afforded to the State that, in view of the circumstances of the case, might better safeguard both the interests of justice and the interests of the social rehabilitation of the suspect, the accused or the sentenced person.

2. The provisions of the preceding paragraph:in the cases covered by Article 1.2, shall cede against the rule according to which international jurisdiction shall have primacy over national jurisdiction ;
shall not apply to the form of co-operation mentioned in Article 1. 1.f).

Part I
General

CHAPTER I
Subject-matter, scope and general principles of international judicial co-operation in criminal matters

Article 18
Optional refusal of international co-operation

1. International co-operation may be refused if the facts that substantiate the request are the subject of criminal proceedings, or if they should or may be the subject of criminal proceedings for which a Portuguese judicial authority has jurisdiction.

Part I
General

CHAPTER I
Subject-matter, scope and general principles of international judicial co-operation in criminal matters

Article 19
Non his in idem

Where a request for international co-operation is granted that carries delegation of competence over criminal proceedings to a foreign judicial authority, criminal proceedings shall neither be initiated nor continued in Portugal for the same facts that substantiated the request ; neither shall a sentence, the enforcement of which has been delegated to a foreign judicial authority, be enforced m Portugal.

Part III
Transfer of criminal proceedings

CHAPTER I
Delegation of competence in criminal proceedings in favour of the Portuguese judicial authorities

Article 79
Principle

At the request of a foreign State, under the conditions and with the effects set out in the following Articles, proceedings may be taken or continued in Portugal for an offence committed outside the Portuguese territory.

Article 80
Specific requirements

1. Criminal proceedings may be taken or continued in Portugal for an act committed outside the Portuguese territory, subject to the general requirements provided for in this law, as well as the specific requirements that follow :

a) recourse to extradition is excluded ;
b) the foreign State must have provided guarantees that it shall not take proceedings against the person concerned, for the same facts, if a final judgement is rendered by a Portuguese court in respect of the same person and for the same facts ;
c) the facts for which criminal proceedings are requested must amount to an offence under both the law of the foreign State and under Portuguese law ;
d) the maximum period of the punishment, or the measure, involving deprivation of liberty that is applicable with respect to the facts must be at least one year, or the maximum level of the pecuniary sanction involved must be at least the equivalent of 30 units of account in criminal procedure ;
e) the person concerned must be a Portuguese national, or otherwise must have his habitual residence in Portugal ;
f) acceptance of the request must be justified in terms of either the interest of good administration of justice or a better chance of rehabilitation of the person concerned should that person be sentenced.

2. Should the requirements laid down in the preceding paragraph be met, criminal proceedings may also be taken or continued in Portugal if :

a) criminal proceedings have already been instituted in Portugal against the same person for other facts, the latter being punishable with deprivation of liberty of at least one year, and the presence of the person before the court is guaranteed ;
b) the person concerned is an alien or a stateless person habitually resident in Portugal and his extradition has been refused ;
c) the requesting State deems that the presence in court of the person concerned cannot be ensured in that State but can be ensured in Portugal ;
d) the requesting State deems that circumstances do not allow for the execution of an eventual sentence in that State, even through extradition, and circumstances allow for the execution of an eventual sentence in Portugal.

3. The provisions of the preceding paragraphs shall have no effect if the criminal reaction on the grounds of which the request was made already falls under the jurisdiction of the Portuguese courts by virtue of any other legal provision concerning the territorial jurisdiction of Portuguese courts.

4. The requirement of sub-paragraph e) of paragraph 1 may be dispensed with in the cases described in paragraph 4 of Article 32, if the circumstances of the case so require, in particular in order to avoid a situation where the trial cannot be held neither in Portugal nor abroad.

Article 81
Applicable law

The criminal reaction provided in the Portuguese law shall be applicable to the act for which criminal proceedings are taken or are continued in Portugal under the conditions mentioned in the preceding Article, save if the law of the requesting State is more favourable.

Article 82
Effects in the requesting State

1. The acceptance by Portugal of a request made by a foreign State implies that the latter relinquishes the proceedings for the same facts.

2. Once criminal proceedings are taken or continued in Portugal, the requesting State, after having been duly notified that the person left the Portuguese territory, regains the right to prosecute that person for the same facts.

Article 83
Procedure

1. The request made by the foreign State shall include the original or an authenticated copy of the criminal file, if it exists; it shall be submitted by the Attorney-General to the Minister of Justice.

2. Should the Minister of Justice decide that the request is admissible, he shall forward the file to the competent court ; the latter shall summon the person concerned to appear in court and, if applicable, shall notify his counsel.

3. If the person does not appear in court, the court shall make sure that the summons were legally carried out and, if the person is not represented by a counsel or, if represented, the counsel did not appear either, shall appoint a counsel ; every such step shall be recorded in writing.

4. The judge may, ex officio or at the request of the public prosecutor, the person concerned or that person's counsel, order that the summons and notifications mentioned in paragraph 2 above shall be repeated.

5. The person concerned, or his counsel, shall be invited to state reasons for or against the acceptance of the request; the public prosecutor shall enjoy the same right.

6. If necessary, the judge, at his own initiative or at the request of the public prosecutor, the person concerned or his counsel, shall take such steps as he deems indispensable with a view to the producing of evidence; for this purpose he will fix a time-limit not in excess of 30 days.

7. Once such steps have been taken or once that time-limit has expired, the file shall be handed for examination, first to the public prosecutor, then to the person concerned ; each shall be given ten days to produce submissions in writing.

8. The judge shall then give his decision within the eight following days; the decision may be appealed against.

9. Whilst the procedure provided for in this Article runs, the judge may decide to adopt any provisional coercive measures, including financial guarantees, provided for in the Code of Criminal Procedure.

Article 84
Effects of the decision with respect to the request

Where the decision is in favour of the request, the judge, as appropriate, either :

a) forwards the file to the judicial authority that is competent to take or continue proceedings, or

b) takes steps to continue the proceedings if it is within his powers to do so.

Article 85
Validation of the procedural steps taken abroad

The judicial decision to the effect of continuing the foreign criminal proceedings automatically gives the same validity to the procedural steps taken abroad, as those taken before a Portuguese judicial authority, save where such steps would be considered inadmissible under the terms of the Portuguese criminal procedure law.

Article 86
Revocation of the decision

1. At the request of the public prosecutor, the person concerned or his counsel, the judicial authority may revoke the decision if, while the proceedings are pending :

a) any of the grounds justifying inadmissibility that are provided for in this law come to the knowledge of the parties ;
b) the presence of the person concerned at his trial cannot be ensured, or the presence of that person for the purpose of carrying out a sentence involving deprivation of liberty in the cases mentioned in paragraph 2 of Article 82 in which the person left the Portuguese territory, cannot be ensured.

2. Such a decision shall be open to an appeal.

3. Once such a decision becomes enforceable, it puts an end to the jurisdiction of the Portuguese judicial authority and implies the return of the criminal file to the requesting State.

Article 87
Notification

1. The following shall be communicated to the Central Authority for the purpose of being notified to the requesting State :
a) the decision on the admissibility of the request ;
b) the decision to quash the former ;
c) the judgement passed ;
d) any other decision that terminates the proceedings.

2. Notification shall be accompanied by a certificate or an authenticated copy of the decision that is notified.

Article 88
Territorial jurisdiction

The provisions of Article 22 of the Code of Criminal Procedure shall apply to the acts of international co-operation provided for in this Chapter, save the cases in which the question of territorial jurisdiction is already settled.

Part III
Transfer of criminal proceedings

CHAPTER II
Delegation of competence in criminal proceedings in favour of a foreign State

Article 89
Principle

The power to take criminal proceedings, or to continue criminal proceedings pending in Portugal, for an act that constitutes an offence under Portuguese law may be delegated to a foreign State that accepts it, subject to the requirements laid down in the following Articles.

Article 90
Specific requirements

1. Delegation in favour of a foreign State of the powers to take or to continue criminal proceedings shall be subject to the general requirements provided for in this law, as well as the specific requirements as follows :

a) the facts must be an offence under both the Portuguese law and the law of the other State ;
b) the maximum period of the punishment, or the measure, involving deprivation of liberty that is applicable must be at least one year, or the maximum level of the pecuniary penalty involved must be at least the equivalent of 30 units of account in criminal procedure ;
c) the person concerned must either be a national of the foreign State involved or, if he is either a national of a third State or a stateless person, must have his habitual residence in that former State ;
d) the delegation of powers must be justified in terms of either the interests of good administration of justice or a better chance of rehabilitation of the person- concerned should that person be sentenced.

2. Should the requirements laid down in the preceding paragraph apply, delegation of powers may also take place if :

a) the person concerned is serving a sentence in the foreign State, for an offence which is more serious than the offence committed in Portugal ;
b) the person concerned has his habitual residence in a foreign State and the extradition of that person, either cannot be obtained for reasons pertaining to the national law of that State, or was requested and refused by that State ;
c) the person concerned has been extradited to the foreign State for an offence other than the offence under consideration and it is deemed that the delegation of powers allows for a better chance of rehabilitation of that person.

3. The delegation of powers may also take place, regardless of the nationality of the person concerned, if the Portuguese authorities deem that the presence of that person in court for his trial in Portugal cannot be ensured, whilst his presence in court for his trial in the foreign State can be ensured.

4. Exceptionally, the delegation of powers may also take place regardless of the requirement relating to habitual residence, if the circumstances of the case so require, in particular in order to avoid a situation where the trial cannot be held neither in Portugal nor abroad.

Article 91
Procedure for the delegation of powers
1. At the request of either the public prosecutor or the person concerned, and after adversarial proceedings during which reasons for and against the use of this form of international co-operation may be given, the court which has jurisdiction over the facts involved shall assess the need for the delegation of powers.
2. The public prosecutor or the person concerned, as appropriate, shall each be given a period of ten days within which they may react to the request mentioned in paragraph 1.
3. After such reaction or after the period of ten days, the judge shall take a decision within eight days, granting or refusing the request.
4. If the person concerned is on the territory of a foreign State, he may request the transfer of proceedings, either before an authority of that State, or before the Portuguese consular authority; the request may be made by the person concerned, by a person who legally represents him or by his counsel.

5. The judicial decision shall be open to an appeal.
6. Any final decision to grant the request shall have the effects of suspending the time-limitation period and discontinuing the proceedings, without prejudice of any urgent measures eventually required; that decision shall be forwarded by the Attorney-General to the Minister of Justice, along with a certified copy of the file, for the purpose of being examined by the latter.



Article 92
Communication of requests
The request from the Minister of Justice to the foreign State shall be transmitted through the channels provided for in this law.

Article 93
Effects of the delegation of powers
1. Once the delegation of powers to take or to continue criminal proceedings has been accepted by a foreign State, no new proceedings shall be taken in Portugal for the same facts.
2. The time-limitation period under Portuguese law shall be suspended until termination of the proceedings in the foreign State, including the enforcement of the sentence, if any.
3. Portugal shall, however, re-acquire the right to take proceedings for the same facts if, either:
a) the foreign State involved sends notification that it cannot conclude the proceedings transferred to it, or

b) any reason is disclosed that, according to this law, would have prevented the request for delegation from being granted.
4. Any judgement involving a sanction or a measure, rendered in a foreign State upon proceedings that were transferred to that State, shall be recorded in the Portuguese criminal records and have the same effects as if it had been rendered by a Portuguese court.

5. The provision of the preceding paragraph shall apply to any decision that terminates the criminal proceedings in the foreign State .

Article 17
Issues of admissibility
1. Having regard to paragraph 10 of the Preamble and article 1, the Court shall determine that a case is inadmissible where:
(a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution;
(b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute;
(c) The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3;
(d) The case is not of sufficient gravity to justify further action by the Court.
2. In order to determine unwillingness in a particular case, the Court shall consider, having regard to the principles of due process recognized by international law, whether one or more of the following exist, as applicable:
(a) The proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court referred to in article 5;
(b) There has been an unjustified delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice;
(c) The proceedings were not or are not being conducted independently or impartially, and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice.
3. In order to determine inability in a particular case, the Court shall consider whether, due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings.