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Decree-Law n.º 325/95 of December 2 : Preventive
and repressive measures against the laundering of money and other property that
proceed from criminal offences
Fighting against laundering of money and other goods proceeding
from criminal activities, in particular from trafficking in
narcotic drugs and psychotropic substances and precursors,
became a specific feature of the fight against crime since
the United Nations Convention against Illicit Traffic in Narcotic
Drugs and Psychotropic Substances was signed in 1988.
In due course, Portugal ratified that
Convention and adapted its domestic legislation accordingly
(cf. Decree-Law Nº 15/93, of 22 January).
With the same aim, the Council of Europe
prepared and adopted the Convention on Laundering, Search,
Seizure and Confiscation of the Proceeds from Crime, signed
by Portugal on 8 November 1990. It encourages Member States
to enlarge the scope of their struggle against laundering
to include, not only trafficking in drugs and precursors,
but also other forms of criminality, such as arms-trafficking,
terrorism, trafficking in children and young women, and other
serious forms of criminality originating important benefits.
Within the framework of the European Community,
Council Directive 91/308/EEC of 10 June 1991 - transposed
into the domestic legal system by means of Decree-Law Nº
313/93, of 15 September - reveals the same trend.
An analysis of the first Commission's
report on the implementation of the above-mentioned Directive
shows that most Member States of the European Union have enlarged
the scope of criminalisation of laundering beyond drug-related
offences. The same can be said with respect to preventive
measures.
Discrepancies still existing between the
different legal systems give rise to the ill-functioning of
preventive and repressive systems of Member States and thus
makes international co-operation more difficult.
Because the adoption of new machinery
must be gradual, the translation of the Directive into domestic
law was limited to the financial system's support to the laundering
of money proceeding from illicit drug affairs. Other forms
of criminality were not included. Similarly, prevention was
not extended beyond operations and flows that transit through
credit institutions, financial companies, insurance companies,
and companies that manage pension funds.
It is however clear that the fight against
laundering of money and products that proceed from crime implies
both the criminalisation of certain behaviours and measures
of a more preventive nature. The latter include the detection
of laundering activities by the financial system, but also
by certain activities and professions, through which money
and goods circulate.
Activities linked to games (mainly in
casinos, but also lottery winners) and trade in goods of a
high value (immovable property, in particular in certain touristic
areas, precious stones and metals, antiques, objects of art,
automobiles, boats and aircraft), have all been identified
as particularly apt to be used for laundering purposes.
The special vulnerability of casinos justifies
the application of measures comparable to those that are provided
for financial institutions, in particular: a) the identification
of clients, especially occasional clients who use cash beyond
a certain amount; b) keeping for a certain period of time
documents relating to transactions; c) the duty to exercise
accrued diligence; and d) the duty to provide information
about suspicious transactions.
As to activities relating to the sale
of goods of high value - that may be used for purposes of
placing or integrating money -practical difficulties should
be taken into consideration, especially in view of the fact
that traditionally such activities are neither subjected to
specific rules nor to the control of a supervising authority.
However, the possibility has been considered
of establishing in this area some rules a) providing that
information about suspicious transactions should be laid,
b) providing for the identification of clients who buy against
cash beyond a certain amount, and c) even providing for a
requirement to pay by way of non-cash means in cases of acquisitions
against amounts that go beyond a given level.
The Spanish law establishes that the duties
relating to the prevention of money laundering imposed on
the financial system shall apply to non-financial enterprises,
such as casinos, real estate agents and any other activities
identified in the law. The German law on money laundering
provides similarly.
It is certain that the mobility of launderers
and their activities suggests that the legal system should
integrate the possibility of extending the supervision to
new laundering activities. However, it appears to be premature
at this point to extend supervision to certain activities;
conversely, it appears to be prudent to await the conclusions
of the "Contact Committee" (cf. Article 13 of Directive
91/308/EEC).
The opportunity was used to introduce
small improvements both in the field of fighting against laundering
of proceeds from drug trafficking and in matters pertaining
to the powers to investigate.
Thus:
Giving effect to the authorization given
by Parliament to the Government in the Law No. 32/95, of 18
August, to legislate in the following matters, and under the
terms of Article 201, paragraph 1, sub-paragraphs a) and b),
of the Constitution, the Government decides as follows:
I
Purpose and scope
Article 1
Purpose
This act provides for preventive and repressive
measures against the laundering of money and other goods proceeding
from such criminal offences as are indicated herein, other
than those already provided for with respect of the proceeds
of trafficking in drugs and precursors.
Article 2
Conversion, transfer
and dissimulation of goods and products
1. Any person who, knowing that certain
goods and products proceed from criminal offences amounting
to terrorism, arms trafficking, extortion, kidnapping, qualified
procuring, corruption or any other offence mentioned in paragraph
1 of Article 1 of Law Nº 36/94, of 29 September:
a) directly or indirectly converts,
transfers, assists in or facilitates any conversion or transfer
of all or part of such goods or products, in order, either
to conceal or dissimulate its illegal origin, or to assist
any person involved in committing any such offences in eluding
the legal consequences of his or her behaviour, shall be
liable to imprisonment for a term of 4 to 12 years;
b) conceals or dissimulates the true
nature, origin, whereabouts, layout, movement or ownership
of such goods or products, or rights pertaining thereto,
shall be liable to imprisonment for a term of 2 to 10 years;
c) acquires or receives such goods or
products, whichever the legal title, and uses, holds or
keeps them, shall be liable to imprisonment for a term of
1 to 5 years.
2. Sanctions applied to persons found
guilty of having committed any of the offences punishable
under the terms of paragraph 1 shall comply with such maximum
and minimum levels of sanctions as are provided in respect
of the respective predicate offence.
3. Any acts and omissions as typified
under paragraph 1 shall also be punishable where the respective
predicate offence will have been committed outside the national
territory.
II
Financial institutions
Article 3
Prevention by financial
institutions
The provisions of Chapter II of this act
shall apply to financial institutions, as defined under Article
2 of Decree-Law Nº 313/93, of 15 September, with respect
to any operation that involves, or may involve, committing
any act or omission criminalised under Article 2 above. However,
liability of financial institutions shall be excluded, under
the terms of Article 13 of Decree-Law Nº 313/93, of 15
September.
III
Non-financial institutions
Article 4
Casinos
1. Companies acting under a concession
granted in order to operate games in casinos shall be under
the duty:
a) in premises for traditional games,
to identify customers with reference to amounts in excess
of PTE2 500 000 involved in operations that they conduct
whereby they acquire against cash any token or any tokens,
or any other conventional object or objects usable for playing
games;
b) in premises for traditional games,
not to issue any cheque against tokens, unless the payee
is a customer who has acquired tokens by means of a bank
card or a non-endorsed cheque; the value of the cheque may
not be in excess of the amount spent by the payee in thus
acquiring tokens;
c) in premises for slot-machines, not
to issue any cheque unless the payee is a customer who has
won a prize as a result of the machines' payments' plan;
d) to identify customers to whom cheques
are made out to; such cheques must bear the name of the
payee and must be crossed;
e) to keep a copy or the references
of the evidence required for identification for a period
of at least ten years;
f) as soon as they have knowledge thereof,
to inform the competent judicial authorities of any operation
that, because of the sums involved or because of their being
repeated, arise suspicion that activities are being carried
out that amount to the laundering of money or other goods
or products.
2. Identification as mentioned in sub-paragraphs
a) and d) of paragraph 1 shall be possible only on the basis
of any document containing the photograph of the bearer, as
well as his name, place of birth and age.
3. Information as mentioned in sub-paragraph
f) of paragraph 1 shall be incumbent on the managing director
or directors of the company involved.
Article 5
Real estate agents
1. Any physical or legal person acting
as real estate agent, as provided for in Decree-Law Nº
285/92, of 19 December, shall be under the duty:
a) to identify any contracting party
and any property involved in any transaction, where the
amount paid equals or exceeds PTE 25 000 000;
b) to keep, for a period of at least
ten years, a copy, or the references, of the evidence required
for identification;
c) to inform the competent judicial
authorities, as soon as they have knowledge of any operation
or operations that, inter alia, because of the amounts involved,
the repetitiveness of the operations, or the financial and
economic situation of any person involved therein, or the
means of payment used, raise grounds for suspicion that
laundering of money or other goods or products is being
carried out.
2. The provisions of paragraph 2 of Article
4 above shall apply to the identification of contracting parties.
Article 6
Buying and re-selling
real estate
1. Any entity who buys real estate with
a view to re-selling it shall be under the duty:
a) to inform the authority empowered
to supervise its activity that its activity has started;
b) to forward every half-year, to the
authority empowered to supervise its activity, forms, as
adequate, containing the following information with respect
to each transaction carried out:
i) the identification of any person
involved;
ii) the amounts involved;
iii) the references of the title thereof;
iv) the means of payment used;
c) to keep, for a period of at least
ten years, the documents concerning each transaction;
d) to inform the competent judicial
authorities, as soon as they have knowledge of any operation
or operations that, inter alia, because of the amounts involved,
the repetitiveness of the operations, or the financial and
economic situation of any person involved therein, or the
means of payment used, raise grounds for suspicion that
laundering of money or other goods or products is being
carried out.
2. The provisions of paragraph 2 of Article
4 above shall apply to the identification of contracting parties.
Article 7
Bearer coupons and securities
Any entity who pays out to winners of
bets or lotteries prizes of an amount equal or exceeding PTE
1 000 000, must identify the bearer, in compliance with the
provisions of paragraph 2 of Article 4 above, and keep the
relevant data for a period of at least ten years.
Article 8
Goods of high individual
value
1. Any entity who trades in precious stones
or metals, antiques, objects of art, aircraft, boats or automobiles
shall be under the duty:
a) to identify any client and any operation
carried out, where the amount paid in cash equals or exceeds
PTE 500 000;
b) to keep, for a period of at least
ten years, a copy, or the references of, the evidence required
for identification ;
c) to inform the competent judicial
authorities, as soon as they have knowledge of any operation
or operations that, inter alia, because of the amounts involved,
the repetitiveness of the operations, or the financial and
economic situation of any person involved therein, or the
means of payment used, raise grounds for suspicion that
laundering of money or other goods or products is being
carried out.
2. The provisions of paragraph 2 of Article
4 above shall apply to the identification of contracting parties.
Article 9
Scope of duties
1. Duties resulting from the provisions
of Articles 4 to 8 above shall apply to the laundering of
goods and products that proceed from any offences, as listed
in Article 2 above; they shall also apply to the laundering
of goods and products that proceed from trafficking in drugs
and precursors.
2. The provisions of paragraphs 3 and
4 of Article 10, and Article 13 of Decree-Law Nº 313/93,
of 15 September, shall apply to any information laid in compliance
with the duties provided for in the preceding Articles.
Article 10
Authority empowered to supervise
1. The Inspecção-Geral de
Jogos3 shall be empowered to supervise compliance with the
duties provided for in Articles 4 and 7 above; the Inspecção-Geral
das Actividades Económicas4 shall be empowered to supervise
compliance with the duties provided for in Articles 5, 6 and
8 above.
2. Where, in the course of inspections
or otherwise, any authority mentioned in the preceding paragraph
discovers any fact that might constitute evidence of any offence
qualifying as laundering of money or other goods or products,
that authority shall inform the competent judicial authority.
IV
Regulatory offences
Article 11
Financial institutions
Any breach of any duty provided for in
Article 3 shall constitute a regulatory offence punishable
under the terms of Chapter III of Decree-Law Nº 313/93,
of 15 September.
Article 12
Non-financial institutions
1. Any breach of any duty provided for
in sub-paragraphs a) to e) of paragraph 1 of Article 4 above,
in sub-paragraphs a) and b) of paragraph 1 of Article 5 above,
in sub-paragraphs a) to c) of paragraph 1 of Article 6 above,
in Article 7 above, or in sub-paragraphs a) and b) of paragraph
1 of Article 8 above, shall constitute a regulatory offence
punishable with a coima 5 from PTE 500 000 to PTE 50 000 000.
2. Negligence may be punished.
Article 13
Serious regulatory offences
1. Any breach of any duty provided for
in sub-paragraph f) of paragraph 1 of Article 4 above, in
sub-paragraph c) of paragraph 1 of Article 5 above, in sub-paragraph
d) of paragraph 1 of Article 6 above, or in sub-paragraph
c) of paragraph 1 of Article 8 above, shall constitute a regulatory
offence punishable with a coima from PTE 1 000 000 to PTE
100 000 000.
2. Negligence may be punished.
Article 14
Subsidiary law
The provisions of Chapter III of Decree-Law
Nº 313/93, of 15 September, shall subsidiarily apply,
mutatis mutandis, to individual and collective liability for
any offence provided for in this Chapter.
Article 15
Powers
1. The supervising authorities mentioned
in paragraph 1 of Article 10 above shall be competent to investigate
any regulatory offence provided for in Articles 12 and 13
above and organise and institute proceedings with respect
to such offences, depending on their respective nature.
2. The Minister for Trade and Tourism
shall be empowered to impose coimas and ancillary sanctions.
Article 16
Allocation of revenue
from coimas
The revenue from coimas shall be allocated
as follows:
a) 60% to the State;
b) 40% to the Fundo de Turismo6 or the Inspecção-Geral
das Actividades Económicas, depending on whether
the investigations were led by the Inspecção-Geral
de Jogos or the Inspecção-Geral das Actividades
Económicas, respectively.
CHAPTER V
Final provisions
Article 17
Safeguard of rights
of bona fide third parties
1. Where property seized within the framework
of criminal proceedings for an offence relating to laundering
of money or other goods or products, is registered in a public
register in the name of third parties, the latter shall be
notified to argue the case of their rights and produce summary
evidence of their bona fide; the property may be immediately
returned to them.
2. Where a register is not available,
third parties who claim bona fide ownership with respect to
seized property may argue the case of their rights within
the framework of the proceedings.
3. The case for the rights of third parties
who claim bona fide ownership may be argued only until the
property in question is declared to be confiscated; it must
be submitted by way of a request addressed to the judge; submissions
must indicate the evidence which will be produced.
4. Submissions shall be joined to the
file of the proceedings; the Public Prosecutor shall be notified
and may argue otherwise; the Court may order any measures
as it deems fit and shall decide.
5. In view of the complexity of the case
or because of envisaged undue delays in the criminal proceedings,
the judge may refer the case to a civil court.
Article 18
Powers
Article 4 of Decree-Law Nº 295-A/90,
of 21 September, with the wording of Article 10 of Law Nº
36/94, of 29 September, shall read as follows:
Article 4
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b) .................................
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d) .................................
e) .................................
f) .................................
g) .................................
h) .................................
i) .................................
j) .................................
l) .................................
m) .................................
n) .................................
o) .................................
p) .................................
q) .................................
r) .................................
s) .................................
t) .................................
u) .................................
v) .................................
x) .................................
z) laundering of money or other goods or products.
2. .......................................
3. .......................................
4. .......................................
Article 19
Information and documents
For purposes of investigations, taking
of evidence and trial of any offence, as listed in Article
2 above, the provisions of Article 60 of Decree-Law Nº
15/93, of 22 January, shall apply to laying of information
and surrender of documents, both by any entity mentioned therein,
and any entity mentioned in Article 2 of Decree-Law Nº
313/93, of 15 September.
Article 20
Controlled deliveries
The measure provided for in Article 61
of Decree-Law Nº 15/93, of 22 January, shall apply to
any offences qualifying as laundering of money or other goods
or products proceeding from trafficking in drugs and precursors.
(Translaction by Cândido Cunha)
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