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.

Article 18
Preliminary rulings regarding admissibility
2. Within one month of receipt of that notification, a State may inform the Court that it is investigating or has investigated its nationals or others within its jurisdiction with respect to criminal acts which may constitute crimes referred to in article 5 and which relate to the information provided in the notification to States. At the request of that State, the Prosecutor shall defer to the State's investigation of those persons unless the Pre-Trial Chamber, on the application of the Prosecutor, decides to authorize the investigation.