Spans in 'Portugal - Law 144/99' tagged with 'Other forms of cooperation'

'Other forms of cooperation' in document 'Portugal - Law 144/99'

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The relevant provisions of implementing legislation: [1] [2] [3] [4] [5]
The Relevant Provisions of the Rome Statute

RELEVANT SECTIONS OF THE IMPLEMENTING LEGISLATION

Part I
General

CHAPTER II
General rules of procedure

Article 28
Handing over of property or money

1. Where the request for co-operation concerns, exclusively or not, the handing over of property or money, these may be handed over only if they are not required for the purpose of producing evidence in connection with a criminal offence over which the Portuguese authorities have jurisdiction.

2. Handing over may be delayed; property and money may be handed over on condition that they are returned.

3. Any rights which bona fide third parties or legitimate owners or possessors may have over the property shall be preserved; any rights of the State that might result from the property being declared lost in its favour shall also be preserved.

4. If there is opposition to the handing over, property or money shall be handed over only subsequent to a final decision of the competent authority.

5. Where extradition is requested, the handing over as mentioned in paragraph 1 above may be executed even where extradition does not take place, notable because of the escape or death of the person sought.

Part VI
Mutual legal assistance in criminal matters

CHAPTER I
Provisions common to different forms of assistance

Article 145
Principle and scope

1. Assistance shall include: the communication of information; the service of writs; communication of procedural steps or other public law acts admitted by Portuguese law if they are necessary for the purposes of criminal proceedings; as well as steps that are necessary to seize or recover proceeds from, objects of or instrumentalities of an offence.
2. Assistance shall include in particular the following:
a) the notification of deeds and the service of documents;
b) the procuring of evidence;
c) searches, seizure of property, experts examination and analysis;
d) the service of writs to and hearing of suspects, accused persons, witnesses or experts;
e) the transit of persons;
f) the communication of information on Portuguese law or the law of a foreign State, as well as the communication of information relating to the judicial record of suspect, accused or sentenced persons.
3. Where the circumstances of the case so require, subject to an agreement between Portugal and a foreign State or an international judicial entity, any hearings as mentioned in sub-paragraph d) of paragraph 2 above may take place by using telecommunication means in real time, in accordance with Portuguese criminal procedure law and without prejudice to the provisions of paragraph 10 ahead.

4. Within the framework of assistance in criminal matters, either upon authorisation of the Minister of Justice or in conformity with the provisions of any agreement, treaty or convention to which Portugal is a Party, direct communication of information relating to criminal matters may be established between Portuguese and foreign authorities that assist judicial authorities.

5. The Minister of Justice shall be empowered to authorise the participation of foreign judicial authorities and foreign criminal police authorities in criminal proceedings that take place on Portuguese territory, in particular within the framework of joint criminal investigation teams made up of both national and foreign members.

6. Unless provided for by international agreements, treaties or conventions, setting up joint criminal investigation teams requires authorisation from the Minister of Justice.

7. Participation as mentioned in paragraph 5 shall be authorised only if reciprocity applies and where its purpose is to assist a Portuguese or foreign judicial authority or a Portuguese or foreign criminal police authority; under the authority and in the presence of Portuguese authorities; the provisions of the Portuguese criminal procedure law shall apply; all must be recorded in writing.
8. The provisions of Article 29 above shall apply to any measures that come under the competence of the criminal police authorities where such measures are undertaken under the conditions and within the limits provided for in the Code of Criminal Procedure.
9. The powers mentioned in paragraph 5 above may be delegated upon the Central Authority or, where the participation sought is exclusively that of a foreign criminal police authority or body, upon the national Director of the "Polícia Judiciária" (criminal police organisation).
10. The provisions of paragraph 5 shall apply mutatis mutandis to requests for assistance submitted by Portugal.

11. The provisions of this Article shall not prejudice the application of more favourable provisions in agreements, treaties or conventions to which Portugal is a party.

Article 145 - A
Joint criminal investigation teams
1. Joint investigation teams shall be set up by mutual agreement between the Portuguese State and a foreign State, in particular where:
a) in the framework of a foreign State's criminal investigation, specially complex investigations having links with Portugal or with another State are required;
b) a number of States are conducting investigations into criminal offences in which the circumstances of the case necessitate coordinated, concerted action in the States involved.
2. Requests for the setting up of joint investigation teams shall, in addition to the information referred to in the relevant provisions of Article 14 of the European Mutual Assistance Convention and Article 37 of the Benelux Treaty of 27 June 1962, as amended by Protocol of 11 May 1974, include proposals for the composition of the team.
3. Seconded members of a joint investigation team may be present when criminal investigation acts are carried out in the Portuguese territory, unless the national authority leading the team decides otherwise, giving the reasons therefor, in accordance with the Portuguese law.
4. Criminal investigation acts may be carried out in the Portuguese territory by seconded members of a joint investigation team by a decision taken by the national authority leading the team and subject to the approval of the Minister of Justice and of the competent authority of the seconding State.
5. Where a joint investigation team needs assistance from a State other than those which have set up the team, the request for assistance may be addressed by the Minister of Justice to the competent authorities of the State concerned in accordance with the relevant instruments or arrangements.
6. Members of joint investigation teams who have been seconded by the Portuguese State may provide their teams with information available in Portugal for the purpose of the criminal investigations conducted by them.
7. Information lawfully obtained by the members of joint investigation teams during the performance of their duties which is not otherwise available to the competent authorities of the seconding States concerned may be used for the following purposes:
a) for the purposes for which the team has been set up;
b) subject to the prior consent of the Minister of Justice, for detecting, investigating and prosecuting other criminal offences, provided that such use will not endanger criminal investigations being carried out in Portugal or when facts are at stake in respect of which the State concerned could refuse mutual assistance;

c) for preventing an immediate and serious threat to public security and, without prejudice to subparagraph (b), if a criminal investigation is subsequently opened;
d) for other purposes provided that an agreement thereon exists between States setting up the team.
8. Arrangements may be agreed for persons other than representatives of the States setting up a joint investigation team to take part in the activities of the team, in accordance with national laws or the provisions of any legal instrument applicable. Such persons shall not enjoy the rights conferred upon the seconded members of the team unless an agreement expressly states otherwise.

Article 145 - B
Civil liability regarding members of joint investigation teams
1. The seconding State shall be liable for any damage caused to third parties by its own officials during the exercise of their functions as seconded members of a joint investigation team, in accordance with the law of the State in whose territory such damage was caused.
2. The Portuguese State shall make good any damage caused in the national territory by seconded members of a team, and shall exercise its right to claim return of all sums it has paid.
3. The Portuguese State shall reimburse any sums paid to third parties by the seconding State for damage caused by its own members of joint investigation teams.
4. The Portuguese State shall waive all requests for reimbursement of damages it has sustained, caused by members of joint investigation teams who have been seconded by the foreign State, without prejudice to the exercise of its rights vis-à-vis third parties."

Article 146
Applicable law
1. Requests for assistance addressed to Portugal shall be carried out in conformity with the Portuguese law.

2. However, where the foreign State so requests explicitly or where it results from an international agreement, treaty or convention, the assistance sought may be given in conformity with the law of that State, if such is not incompatible with the fundamental principles of Portuguese law and if it does not carry serious prejudice to the parties involved.
3. Requests for assistance shall be refused where the assistance sought implies measures that are banned under Portuguese law or might carry penal or disciplinary sanctions.

Article 147
Coercive measures
1. Where any of the measures mentioned in Article 145 above imply the resort to coercive measures, such measures shall be carried out only if the facts mentioned in the request amount to an offence under Portuguese law and if the measures are carried out according to Portuguese law.

2. However, coercive measures shall be admitted even where the facts are not punishable under Portuguese law, if such measures aim at procuring or producing evidence to the effect of excluding the responsibility of the person against whom the criminal proceedings run.

Article 148
Prohibition to use information obtained
1. Any information obtained in order to be used within the criminal proceedings mentioned in the foreign State's request shall not be otherwise used.
2. At the request of a foreign State or an international judicial entity, the Minister of Justice, after having sought the opinion of the Attorney-General, may exceptionally authorise that information to be used in the framework of other criminal proceedings.
3. Any authorisation given to a foreign State to consult a Portuguese criminal proceedings file within the framework of which that State is an injured party, shall be made subject to the conditions mentioned in the preceding paragraphs.

Article 149
Confidentiality
1. Upon application of a foreign State or an international judicial entity, the request for assistance, its purpose, the measures taken upon the request, as well as the documents involved, shall be kept confidential.

2. If the assistance requested cannot be carried out without unveiling information thereupon, the Portuguese authority shall invite the interested authority to confirm or annul its request for assistance.

CHAPTER II

Request for assistance

Article 150
Powers

Any foreign authority or entity that has powers to take criminal proceedings under the law of the State or the International Organization involved, may request assistance.

Article 151
Contents of the request and supporting documents

Other than the documents and statements mentioned in Article 23 above, requests shall include, as applicable:
a) the name, address and capacity of the person to whom the writ or the document should be serviced, as well as specification of the nature of such document;
b) a statement to the effect of certifying that search, seizure or handing of property, as requested, are admissible under the law of the requesting State;
c) any reference to particulars of the proceedings or to requirements, including time-limits and confidentiality, that the foreign State or judicial entity wishes to be met.

Article 152
Procedure
1. Requests for assistance that take the form of letters rogatory may be transmitted directly between competent judicial authorities, without prejudice to the possibility of using the channels mentioned in Article 29.
2. In accordance with the criminal procedure law, the judge or the public prosecutor shall be empowered to take decisions to the effect of executing letters rogatory.
3. Where a letter rogatory is received that should not be executed by the public prosecutor, the public prosecutor shall be given the possibility to state his opinion.
4. The execution of letters rogatory shall be refused in the following cases:
a) where the requested authority is not empowered to execute the measures sought, without prejudice of the transmission of the letter rogatory to the competent judicial authority if such authority is a Portuguese authority;
b) where the measures sought are forbidden by law or contrary to the Portuguese "ordre public";

c) where the execution of the letter rogatory offends the sovereignty or the security of the State;

d) where the measures imply the execution of a decision of a foreign court, and that decision must have previously been reviewed and confirmed and that decision has not been reviewed and confirmed.

5. Other requests, in particular requests relating to criminal records, to the verification of the identity of a person and mere requests for information, may be directly forwarded to the competent authorities or entities and, once complied with, the result communicated back through the same channels.

6. The provisions of paragraph 4 above shall apply mutatis mutandis to requests that do not take the form of a letter rogatory.
7. The provisions of paragraph 3 above shall apply mutatis mutandis to letters rogatory addressed by any competent Portuguese judicial authority to any foreign authorities; letters rogatory shall be issued in every instance where any competent Portuguese judicial authority deems that such is necessary in order to obtain evidence of any fact that is essential either to the prosecution or to the defence.

CHAPTER III

Special forms of international assistance

Article 153
Service of documents
1. The Portuguese authorities shall service any judicial decisions, as requested by a foreign authority.

2. Service may be carried out by simple transmission of the documents to the person by post or, where the foreign authority expressly so requests, by any other manner if consistent with the Portuguese law.

3. Proof of service shall be given either by means of a document dated and signed by the person served or by means of a statement made by the Portuguese authority indicating the manner in which the documents were served and the date.
4. Documents shall be deemed to be serviced when they are accepted, as well as when they are refused in writing.
5. If documents cannot be served as requested, the foreign authority shall be informed of the reasons thereof.

6. The provisions of this Article shall not prejudice direct service to any person who is present on the territory of a foreign State, in accordance with the provisions of any agreement, treaty or convention to which Portugal is a party.

Article 154
Summons to appear
1. Suspect or accused persons, witnesses or experts who are summoned to appear for the purposes of foreign criminal proceedings, service of which has been requested, may fail to appear.

2. When the summons are served, the person concerned shall be informed of his right not to appear.

3. The Portuguese authority shall refuse to service any summons where the person concerned is threatened with sanctions or where the safety of the person concerned is not safeguarded.
4. Consent to appear, if it is given, shall be freely given by way of a written statement.
5. Requests shall indicate the allowances and remunerations, as well as the travelling and subsistence expenses, to be paid out; they ought to be transmitted reasonably in advance so that they can be received 50 days at least before the date at which the person should appear.
6. In urgent cases, the time-limits indicated in the preceding paragraph may be shortened.

7. The allowances, remunerations and expenses mentioned in paragraph 5 above shall be calculated as from the place of residence of the person concerned and shall be at the rates provided for in the law of the State where the hearing is intended to take place.

Article 154-A

Transmission and reception of denunciations and complaints

1 – Criminal police bodies and judicial authorities receive denunciations and complaints on the perpetration of criminal offences against residents in Portugal having been committed on the territory of another Member State of the European Union.

2 – The Public Prosecutor shall, without delay, send the denunciations and complaints received in accordance with paragraph 1 above to the competent authority of the Member State on whose territory the offence was committed, except where Portuguese courts are competent to try the offence.

3 – The Public Prosecutor receives from the competent authorities of Member States of the European Union any denunciations and complaints regarding criminal offences committed on Portuguese territory against residents in another Member State, for the purposes of prosecution.

Article 155
Temporary surrender of persons in custody
1. A person arrested or imprisoned in Portugal may be temporarily surrendered to an authority of a foreign State for the purposes mentioned in the preceding Article, provided that that person consents, that his remaining in custody is guaranteed and that he shall be returned within the period stipulated by the Portuguese authorities or when his presence in that State is no longer necessary.

2. Without prejudice to the provisions of the preceding paragraph, surrender shall be refused if:
a) the presence of the person concerned is necessary at criminal proceedings pending in Portugal;
b) it is liable to prolong the provisional arrest of the person concerned;
c) regarding the circumstances of the case, the Portuguese judicial authority does not deem surrender to be convenient.
3. The provisions of sub-paragraphs 1 and 2 of Article 21 shall apply to the requests mentioned in this Article.

4. The time during which the person remains out of Portugal shall be taken into consideration for the purposes of provisional arrest or sentence imposed in Portugal.

5. If the sentence imposed on the person surrendered expires while that person is on the territory of a foreign State, that person shall be set free and shall as from that moment enjoy such rights as enjoy the persons who are not under custody.

6. The Minister of Justice may grant the assistance requested subject to specified requirements.

Article 156
Temporary transfer of persons in custody for purposes of investigation
1. The provisions of Article 155 shall apply to cases in which, upon agreement, a person arrested or imprisoned in Portugal may be temporarily transferred to the territory of another State for purposes of investigation in the framework of Portuguese criminal proceedings.
2. The agreement mentioned in paragraph 1 above shall not be required where the transfer is made under an international agreement, treaty or convention that does not impose it.
3. The provisions of the preceding paragraph shall apply mutatis mutandis to requests of assistance submitted to Portugal.

Article 157
Safe conduct
1. Any person appearing on the territory of a foreign State under the terms and for the purposes of the provisions of Articles 154, 155 or 156 above:
a) shall not be arrested, prosecuted, punished or subjected to any other restriction of his personal liberty in respect of any act anterior to his departure from the Portuguese territory other than those mentioned in the request for co-operation;
b) shall not be under an obligation to accept to be heard or make a statement at proceedings other than those mentioned in the request.
2. The immunity provided for in paragraph 1 above shall cease when the person voluntarily remains in the territory of the foreign State for more than 45 days from the date when his presence is no longer required or, having left that territory, voluntarily returned to it.
3. The provisions of the preceding paragraphs shall apply mutatis mutandis to any person habitually resident in a foreign State who comes to Portugal as a result of a summons to appear for purposes of criminal proceedings.

Article 158
Transit
1. The provisions of Article 43 shall apply mutatis mutandis to the transit of any person who is under custody in a foreign State and who must appear in the territory of a third State in order to take part at criminal proceedings.
2. Custody of a person in transit shall not remain if the State that authorised the transfer requests the person to be set free.

Article 159
Handing over of property, valuables, documents or files
1. At the request of the competent foreign authorities, any property, in particular documents or valuables, the seizure of which is consistent with the Portuguese law, may be put at the disposal of those authorities if they are relevant to the criminal proceedings.
2. Any proceeds from an offence may be returned to their owners regardless of criminal proceedings having been instituted in the requesting State.
3. Criminal files or other records which are of importance to criminal proceedings pending in a foreign State may be handed over to the competent authorities of that State, provided that they shall be returned within the time-limit fixed by the competent Portuguese authorities.
4. The handing over of any property, valuables, documents or criminal files may be delayed if they are required in connection with pending criminal proceedings.
5. Authenticated copies of the documents or files requested may be handed over instead of the originals; however, should the foreign authority expressly request the transmission of originals, the request shall as far as possible be complied with if the condition for their restitution provided in paragraph 3 above is met.

Article 160
Proceeds, objects and instrumentalities
1. At the request of a competent foreign authority, steps may be taken in order to trace the proceedings of an allegedly committed offence; the results thereof shall be communicated to the requesting authority.

2. The foreign authority must state the grounds on which it deems that such proceedings might be located in Portugal.
3. The Portuguese authority shall take such steps as are necessary in order to enforce any decision of a foreign court imposing the confiscation of proceeds from an offence; the provisions of Part IV shall apply mutatis mutandis.
4. When the foreign authority communicates its intention to request the enforcement of any decision as mentioned in the preceding paragraph, the Portuguese authority may take such steps as are consistent with the Portuguese law in order to prevent any dealing in, transfer or disposal of property which at a later stage shall be, or may be, the subject of that decision.
5. The provisions of this Article also apply to objects and instrumentalities of an offence.
Article 160 - A
Controlled and surveyed deliveries
1. For the purposes of obtaining the identification of largest possible number of offenders and establishing their criminal liability, in co-operation with one or more foreign States, the Public Prosecution shall be empowered to authorise on a case by case basis, upon request from one or more foreign States, in particular where such is provided for in a conventional instrument, that criminal police bodies abstain from acting within the framework of trans-border criminal investigations concerning extraditable offences.
2. The Portuguese authorities shall have the legal powers to act as well as the supervision and control of the criminal investigation operations conducted within the framework of the provisions of the preceding paragraph, without prejudice to the necessary co-operation with the competent foreign authorities.

3. Authorisations given under paragraph 1 above shall be without prejudice to the exercise of criminal proceedings for the facts in respect of which the Portuguese law is applicable; they shall be given only where :
a) the competent foreign authorities have ensured that both their legislation provides adequate criminal sanctions for the offence at stake and criminal proceedings shall be exercised; and

b) the competent foreign authorities have ensured the security of the substances and goods at stake against the risks of flight and loss; and
c) the competent foreign authorities have undertaken urgently to communicate detailed information about the results of the operation as well as the acts performed by each of the offenders, in particular those who acted in Portugal.
4. Even where the above-mentioned authorisation has been granted, the criminal police bodies shall act if safety margins noticeably decrease or if any circumstance arise that renders the arrest of the culprits, or the seizure of the substances or goods, more difficult; where such action by the police bodies was not previously communicated to the authority that granted the authorisation, such shall be done in writing within the next 24 hours.
5. Subject to the existence of an agreement with the country of destination, where prohibited or dangerous substances are in transit, they may be partially replaced by innocuous; a written record shall be filed.
6. Non-compliance of obligations undertaken by foreign authorities may constitute grounds for refusal of authorisation in case of future requests.
7. International agreements are made by the National Bureau of INTERPOL, through the "Polícia Judiciária" (criminal police organisation).
8. Any other entity that receives requests for controlled deliveries, in particular the "Direcção-Geral de Alfândegas" (Directorate General of Customs), either through the Customs Co-operation Council or through its foreign counterparts, without prejudice of processing of custom-specific data, shall address such a request to the "Polícia Judiciária" (criminal police organisation) for action.
9. The Public Prosecution magistrate of the judicial circle of Lisbon shall be empowered to decide upon requests for controlled deliveries.

Article 160 - B
Undercover action

1. Criminal investigation officials of other States may develop undercover action in Portugal, in accordance with the applicable law; in such cases, their status shall be similar to that of Portuguese criminal investigation officials.
2. Action as mentioned in paragraph 1 above is subject both to a request based on an international agreement, treaty or convention, and reciprocity.
3. The judge of the "Tribunal Central de Instrução Criminal" (Central Court of Criminal Investigation) shall be empowered to authorise such action, upon a proposal of the Public Prosecution magistrate at the "Departamento Central de Investigação e Acção Penal - DCIAP" (Central Department for Criminal Investigation and Action)

Article 160 - C
Interception of telecommunications
1. Upon request of the competent authorities of a foreign State, the interception of telecommunications effected in Portugal may be authorised, if such is provided for in an international agreement, treaty or convention and provided that, in similar national circumstances, interception would be admissible under the Portuguese criminal procedural law.
2. The "Polícia Judiciária" (criminal police) shall be empowered to receive requests for interception; it shall thereupon submit the requests to the Criminal Investigations' judge of Lisbon for authorisation.

3. The decision concerning the authorisation mentioned in the preceding paragraph shall include an authorisation for the immediate transmission of the communication to the requesting State, should such transmission be provided for in the international agreement, treaty or convention under which the request was made.

Article 161
Information on the law applicable
1. Any information requested by a foreign judicial authority and relating to the provisions of Portuguese law that are applicable in the framework of criminal proceedings shall be given by the Bureau for Documentation and Comparative Law of the Attorney-General's Office.
2. Any Portuguese judicial authority requiring information on foreign law shall request such collaboration as is necessary from the Bureau mentioned in the preceding paragraph.

Article 162
Information from criminal records

Direct communication of requests relating to criminal records, as mentioned in paragraph 5 of Article 152, shall be addresses to the criminal identification services.

Article 163
Information about criminal judgements
1. Information about or copies of criminal judgements, as well as information about measures taken after criminal judgements or any other relevant information relating to any of those may be requested in respect of nationals of the requesting State.
2. Any requests submitted under the provisions of the preceding paragraph must be channelled through the Central Authority.

Article 164
End of the procedure
1. The authority in charge of executing a request shall forward the file and other documents to the requesting foreign authority as soon as it deems that the request has been fully complied with.

2. If, however, the foreign authority does not deem that the request has been fully complied with, it may return the file, provided that it states its reasons.
3. Should the Portuguese authority deem that such reasons are valid, it shall comply with the request.

Part II
Extradition

CHAPTER I
Extradition from Portugal

Section II
Extradition procedure

Article 53
Appearance of the person claimed

1. The authority that proceeds to the arrest of the person claimed shall, through the most expedite means that afford evidence in writing, immediately inform the public prosecutor attached to the ""Tribunal da Relação"l" that has jurisdiction over the request.

2. Within 48 hours of his arrest, the person claimed must appear before the public prosecutor for the purpose of being heard; any property seized shall accompany the person.

3. The judge rapporteur shall hear the person after having appointed a legal counsel for that person if the latter has not done it himself.

4. The person shall be personally summoned to the hearing and informed of his right to be assisted by both a legal counsel and an interpreter.

5. Where for one reason or another the arrest cannot be examined by the ""Tribunal da Relação"l", the person must appear before public prosecutor attached to the court of first instance that has jurisdiction over the area of the seat of the ""Tribunal da Relação"l" that has jurisdiction over the request.

6. In the case mentioned in the preceding paragraph, the hearing shall have as its sole purpose for the judge of the court of first instance to examine whether the arrest was legal and whether it may continue; the public prosecutor shall take whatever measures are necessary in order to ensure that the person appears in the first working day that follows.

Article 54
Hearing of the person claimed

1. In the presence of the public prosecutor and the legal counsel of the person claimed, and if necessary with the assistance of an interpreter, the judge rapporteur shall proceed to the identification of the person and shall inform him of his right to object to his extradition, of his right to consent to his extradition, of the possibility opened to him to relinquish the benefits of the rule of speciality in accordance with the applicable treaty law.

2. If the person claimed declares that he consents to being surrendered to the requesting State, the provisions of paragraphs 2 to 5 of Article 40 shall apply mutatis mutandis. If the person claimed declares that he objects to his extradition, the judge shall assess the reasons for the objection, should the person wish to state such reasons, and produce a written record of the hearing.

3. If the possibility is opened to the person claimed to relinquish the benefits of the rule of speciality, as mentioned in paragraph 1 above, a verbatim account of the information provided on the rule of speciality shall be written into the record of the hearing, along with the statements of the person; the provisions of paragraphs 2 to 5 of Article 40 shall apply mutatis mutandis.

4. The information mentioned in the preceding paragraph shall also be written into the record of the hearing, if under the applicable treaty law it is still possible for the person, after his surrender, to relinquish the benefits of the rule of speciality before the authorities of the requesting State.

5. Both the public prosecutor and the legal counsel may suggest questions for the judge, if he deems the questions appropriate, to put to the person.

6. The provisions of paragraphs 3 and 4 shall also apply to re-extradition.

Part VI
Mutual legal assistance in criminal matters

CHAPTER III
Special forms of international assistance

Article 160 A
Controlled and surveyed deliveries

1. For the purposes of obtaining the identification of largest possible number of offenders and establishing their criminal liability, in co-operation with one or more foreign States, the Public Prosecution shall be empowered to authorise on a case by case basis, upon request from one or more foreign States, in particular where such is provided for in a conventional instrument, that criminal police bodies abstain from acting within the framework of trans-border criminal investigations concerning extraditable offences.

2. The Portuguese authorities shall have the legal powers to act as well as the supervision and control of the criminal investigation operations conducted within the framework of the provisions of the preceding paragraph, without prejudice to the necessary co-operation with the competent foreign authorities.

3. Authorisations given under paragraph 1 above shall be without prejudice to the exercise of criminal proceedings for the facts in respect of which the Portuguese law is applicable ; they shall be given only where : the competent foreign authorities have ensured that both their legislation provides adequate criminal sanctions for the offence at stake and criminal proceedings shall be exercised ; andthe competent foreign authorities have ensured the security of the substances and goods at stake against the risks of flight and loss ; and the competent foreign authorities have undertaken urgently to communicate detailed information about the results of the operation as well as the acts performed by each of the offenders, in particular those who acted in Portugal.

4. Even where the above-mentioned authorisation has been granted, the criminal police bodies shall act if safety margins noticeably decrease or if any circumstance arise that renders the arrest of the culprits, or the seizure of the substances or goods, more difficult ; where such action by the police bodies was not previously communicated to the authority that granted the authorisation, such shall be done in writing within the next 24 hours.

5. Subject to the existence of an agreement with the country of destination, where prohibited or dangerous substances are in transit, they may be partially replaced by innocuous; a written record shall be filed.

6. Non-compliance of obligations undertaken by foreign authorities may constitute grounds for refusal of authorisation in case of future requests.

7. International agreements are made by the National Bureau of INTERPOL, through the "Polícia Judiciária" (criminal police organisation).

8. Any other entity that receives requests for controlled deliveries, in particular the "Direcção-Geral de Alfândegas" (Directorate General of Customs), either through the Customs Co-operation Council or through its foreign counterparts, without prejudice of processing of custom-specific data, shall address such a request to the "Polícia Judiciária" (criminal police organisation) for action.

9. The Public Prosecution magistrate of the judicial circle of Lisbon shall be empowered to decide upon requests for controlled deliveries.

Article 160 B
Undercover action

1. Criminal investigation officials of other States may develop undercover action in Portugal, in accordance with the applicable law; in such cases, their status shall be similar to that of Portuguese criminal investigation officials.

2. Action as mentioned in paragraph 1 above is subject both to a request based on an international agreement, treaty or convention, and reciprocity.

3. The judge of the "Tribunal Central de Instrução Criminal" (Central Court of Criminal Investigation) shall be empowered to authorise such action, upon a proposal of the Public Prosecution magistrate at the "Departamento Central de Investigação e Acção Penal - DCIAP" (Central Department for Criminal Investigation and Action)

Article 160 C
Interception of telecommunications

1. Upon request of the competent authorities of a foreign State, the interception of telecommunications effected in Portugal may be authorised, if such is provided for in an international agreement, treaty or convention and provided that, in similar national circumstances, interception would be admissible under the Portuguese criminal procedural law.

2. The "Polícia Judiciária" (criminal police organisation) shall be empowered to receive requests for interception; it shall thereupon submit the requests to the Criminal Investigations' judge of Lisbon for authorisation.

3. The decision concerning the authorisation mentioned in the preceding paragraph shall include an authorisation for the immediate transmission of the communication to the requesting State, should such transmission be provided for in the international agreement, treaty or convention under which the request was made.

Article 161
Information on the law applicable

1. Any information requested by a foreign judicial authority and relating to the provisions of Portuguese law that are applicable in the framework of criminal proceedings shall be given by the Bureau for Documentation and Comparative Law of the Attorney-General's Office.

2. Any Portuguese judicial authority requiring information on foreign law shall request such collaboration as is necessary from the Bureau mentioned in the preceding paragraph.

RELEVANT ROME STATUTE PROVISIONS

Article 93
Other forms of cooperation
1. States Parties shall, in accordance with the provisions of this Part and under procedures of national law, comply with requests by the Court to provide the following assistance in relation to investigations or prosecutions:
(a) The identification and whereabouts of persons or the location of items;
(b) The taking of evidence, including testimony under oath, and the production of evidence, including expert opinions and reports necessary to the Court;
(c) The questioning of any person being investigated or prosecuted;
(d) The service of documents, including judicial documents;
(e) Facilitating the voluntary appearance of persons as witnesses or experts before the Court;
(f) The temporary transfer of persons as provided in paragraph 7;
(g) The examination of places or sites, including the exhumation and examination of grave sites;
(h) The execution of searches and seizures;
(i) The provision of records and documents, including official records and documents;
(j) The protection of victims and witnesses and the preservation of evidence;
(k) The identification, tracing and freezing or seizure of proceeds, property and assets and instrumentalities of crimes for the purpose of eventual forfeiture, without prejudice to the rights of bona fide third parties; and
(l) Any other type of assistance which is not prohibited by the law of the requested State, with a view to facilitating the investigation and prosecution of crimes within the jurisdiction of the Court.
2. The Court shall have the authority to provide an assurance to a witness or an expert appearing before the Court that he or she will not be prosecuted, detained or subjected to any restriction of personal freedom by the Court in respect of any act or omission that preceded the departure of that person from the requested State.
3. Where execution of a particular measure of assistance detailed in a request presented under paragraph 1, is prohibited in the requested State on the basis of an existing fundamental legal principle of general application, the requested State shall promptly consult with the Court to try to resolve the matter. In the consultations, consideration should be given to whether the assistance can be rendered in another manner or subject to conditions. If after consultations the matter cannot be resolved, the Court shall modify the request as necessary.
4. In accordance with article 72, a State Party may deny a request for assistance, in whole or in part, only if the request concerns the production of any documents or disclosure of evidence which relates to its national security.
5. Before denying a request for assistance under paragraph 1 (l), the requested State shall consider whether the assistance can be provided subject to specified conditions, or whether the assistance can be provided at a later date or in an alternative manner, provided that if the Court or the Prosecutor accepts the assistance subject to conditions, the Court or the Prosecutor shall abide by them.
6. If a request for assistance is denied, the requested State Party shall promptly inform the Court or the Prosecutor of the reasons for such denial.
7. (a) The Court may request the temporary transfer of a person in custody for purposes of identification or for obtaining testimony or other assistance. The person may be transferred if the following conditions are fulfilled:
(i) The person freely gives his or her informed consent to the transfer; and
(ii) The requested State agrees to the transfer, subject to such conditions as that State and the Court may agree.
(b) The person being transferred shall remain in custody. When the purposes of the transfer have been fulfilled, the Court shall return the person without delay to the requested State.
8. (a) The Court shall ensure the confidentiality of documents and information, except as required for the investigation and proceedings described in the request.
(b) The requested State may, when necessary, transmit documents or information to the Prosecutor on a confidential basis. The Prosecutor may then use them solely for the purpose of generating new evidence.
(c) The requested State may, on its own motion or at the request of the Prosecutor, subsequently consent to the disclosure of such documents or information. They may then be used as evidence pursuant to the provisions of Parts 5 and 6 and in accordance with the Rules of Procedure and Evidence.
9. (a) (i) In the event that a State Party receives competing requests, other than for surrender or extradition, from the Court and from another State pursuant to an international obligation, the State Party shall endeavour, in consultation with the Court and the other State, to meet both requests, if necessary by postponing or attaching conditions to one or the other request.
(ii) Failing that, competing requests shall be resolved in accordance with the principles established in article 90.
(b) Where, however, the request from the Court concerns information, property or persons which are subject to the control of a third State or an international organization by virtue of an international agreement, the requested States shall so inform the Court and the Court shall direct its request to the third State or international organization.
10. (a) The Court may, upon request, cooperate with and provide assistance to a State Party conducting an investigation into or trial in respect of conduct which constitutes a crime within the jurisdiction of the Court or which constitutes a serious crime under the national law of the requesting State.
(b) (i) The assistance provided under subparagraph (a) shall include, inter alia:
a. The transmission of statements, documents or other types of evidence obtained in the course of an investigation or a trial conducted by the Court; and
b. The questioning of any person detained by order of the Court;
(ii) In the case of assistance under subparagraph (b) (i) a:
a. If the documents or other types of evidence have been obtained with the assistance of a State, such transmission shall require the consent of that State;
b. If the statements, documents or other types of evidence have been provided by a witness or expert, such transmission shall be subject to the provisions of article 68.
(c) The Court may, under the conditions set out in this paragraph, grant a request for
assistance under this paragraph from a State which is not a Party to this Statute.

Article 96
Contents of request for other forms of assistance under article 93
1. A request for other forms of assistance referred to in article 93 shall be made in writing. In urgent cases, a request may be made by any medium capable of delivering a written record, provided that the request shall be confirmed through the channel provided for in article 87, paragraph 1 (a).
2. The request shall, as applicable, contain or be supported by the following:
(a) A concise statement of the purpose of the request and the assistance sought, including the legal basis and the grounds for the request;
(b) As much detailed information as possible about the location or identification of any person or place that must be found or identified in order for the assistance sought to be provided;
(c) A concise statement of the essential facts underlying the request;
(d) The reasons for and details of any procedure or requirement to be followed;
(e) Such information as may be required under the law of the requested State in order to execute the request; and
(f) Any other information relevant in order for the assistance sought to be provided.
3. Upon the request of the Court, a State Party shall consult with the Court, either generally or with respect to a specific matter, regarding any requirements under its national law that may apply under paragraph 2 (e). During the consultations, the State Party shall advise the Court of the specific requirements of its national law.
4. The provisions of this article shall, where applicable, also apply in respect of a request for assistance made to the Court.