Part VI
Mutual legal assistance in criminal matters

CHAPTER I
Provisions common to different forms of assistance


Article 145
Principle and scope

2. Assistance shall include in particular the following:

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

Part VI
Mutual legal assistance in criminal matters

CHAPTER I
Provisions common to different forms of assistance


Article 145
Principle and scope

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.

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 :

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.

Part VI
Mutual legal assistance in criminal matters

CHAPTER I
Provisions common to different forms of assistance

Article 145
Principle and scope

2. Assistance shall include in particular the following :

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.

Part VI
Mutual legal assistance in criminal matters

CHAPTER I
Provisions common to different forms of assistance

Article 145
Principle and scope

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.