1. Which criminal offences are legally required to be reported?
  2. Who in the company is responsible for reporting the offence, and to whom should the offence be reported?
  3. What are the risks of failing to report a criminal offence or its perpetrator?
  4. What are the risks of reporting a criminal offence?
  5. Is there a risk of accessory criminal liability for the company/individuals within the company?

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Portugal
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1. Which criminal offences are legally required to be reported?

It is not mandatory to report all crimes to the police. Public officials must report crimes of which they become aware in the exercise of their duties, even if the identity of the perpetrator is unknown.

It is mandatory for certain entities, for example, financial institutions, the Insurance and Pension Funds Supervisory Authority, Banco de Portugal, CMVM, lawyers, solicitors or notaries, to inform the Central Department of Criminal Investigation and Prosecution of the Office of the Attorney-General (DCIAP) and the Financial Intelligence Unit whenever they know, suspect or have sufficient reason to suspect that certain funds or other assets, regardless of the amount or value involved, come from criminal activities or are related to terrorist financing.

2. Who in the company is responsible for reporting the offence, and to whom should the offence be reported?

According to Portuguese criminal law, anyone can report a public crime, even if they do so anonymously, to any criminal police agency or to the public prosecutor’s office.

The entities subject to the money laundering and terrorist financing reporting requirements must appoint a member of their senior management or equivalent to ensure compliance with the legal framework for the prevention of money laundering and terrorist financing, including the duty of reporting and contact with judicial, police and supervisory and enforcement authorities.

3. What are the risks of failing to report a criminal offence or its perpetrator?

Under Law 83/2017, any person who refuses to comply with orders or lawful mandates of the competent authorities, or creates any obstacle to their execution, commits an offence.

Legal persons and assimilated entities are also liable.

4. What are the risks of reporting a criminal offence?

Reporting a criminal offence triggers an investigation by the public prosecutor and or/the police authorities.

5. Is there a risk of accessory criminal liability for the company/individuals within the company?

The Portuguese legal framework for the criminal responsibility of legal persons consists  of several legal regimes. Article 11 of the Portuguese Criminal Code establishes the rules for holding legal persons responsible for certain crimes specified in the Criminal Code, as well as for crimes in other laws that refer to this regime. Additionally, there are independent criminal laws that set out their own specific regimes for the criminal responsibility of legal persons, which operate separately from the provisions of the Portuguese Criminal Code.

  • In order to assess if a legal person can be held responsible for a certain crime included in the Portuguese Criminal Code, depending on the crime, it is necessary to prove that: (i) the crime was committed on the legal person’s behalf or in its collective interest by persons with a leadership position; or (ii) by those acting under the authority of the abovementioned persons due to a violation of their duties of due vigilance or control.

“Persons with a leadership position” includes the organs or representatives of the legal person, as well as the natural persons with the authority to exercise control over its activity.

Also, depending on the crime, punishment for accessory liability is a matter for judicial discretion (e.g. suspension of activity).