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 .
Complementarity
Referral by State
EDIT.