On December 20, 2021, Law no. 93/2021 was published, establishing the general regime for the protection of whistleblowers.
With regard to whistleblowers and the applicable regime, this text will be divided into three parts: a first, referring to the mandatory reporting provided for in the general criminal procedural regime (point 1); referring to the anonymous reporting provided for in the general criminal procedural regime (point 2); and a third, corresponding to a general exposition of Law no. 93/2021, of December 20 (point 3).
Thus,
1.
With reference to the first part, within the scope of the Criminal Procedure Code, which applies, in a subsidiary manner, to criminal proceedings, with regard to the mandatory complaint, Article 242(1)(a) and (b) of the Criminal Procedure Code state that "The complaint is mandatory. Article 242(1)(a) and (b) state that "Reporting shall be compulsory, even if the perpetrators of the crime are not known [for] police authorities, in respect of all crimes of which they become aware; [and for] officials, within the meaning of Article 386 of the Penal Code, in respect of crimes of which they become aware in the performance of their duties and because of them."
As for the meaning of official in Article 386 of the Penal Code, this legal provision states that
"1 - For the purposes of criminal law, the term official covers: a) Civil servants; b) Administrative agents; and c) Arbitrators, jurors and experts; and D) Anyone who, even temporarily or temporarily, for remuneration or free of charge, voluntarily or compulsorily, has been called upon to perform or participate in the performance of an activity included in the public administrative or judicial function, or, in the same circumstances, to perform functions in bodies of public utility or participate in them.
2 - Managers, members of supervisory bodies and employees of public companies, nationalized companies, companies with public capital or with a majority public capital holding, as well as public service concessionaires, shall be treated in the same way as officials.
3 - For the purposes of articles 335 and 372 to 374, the following shall also be considered officials: a) Magistrates, officials, agents and the like of organizations governed by public international law, regardless of nationality and residence; b) Officials who are nationals of other states, when the offence has been committed, in whole or in part, in Portuguese territory; c) All those who perform functions identical to those described in no. 1 within the scope of any international organization. c) All persons performing functions identical to those described in no. 1 within the scope of any international organization governed by public law of which Portugal is a member, when the offence has been committed, in whole or in part, in Portuguese territory; d) Magistrates and officials of international courts, provided that Portugal has declared that it accepts the jurisdiction of those courts; e) All those who exercise functions within the scope of out-of-court dispute resolution procedures, regardless of nationality and residence, when the offense has been committed, in whole or in part, in Portuguese territory; f) Jurors and arbitrators who are nationals of other states, when the offense has been committed, in whole or in part, in Portuguese territory. 4 - The assimilation as an official, for the purposes of criminal law, of those who perform political functions is regulated by special law."
This obligation stems from the fact that, in accordance with the provisions of Article 269(1) of the Constitution of the Portuguese Republic, "In the performance of their duties, employees of the Public Administration and other agents of the State and other public entities are exclusively at the service of the public interest, as defined, under the terms of the law, by the competent bodies of the Administration."
It should be noted that the nature of the crime, i.e. whether or not it depends on a complaint and/or private accusation, is irrelevant to this situation provided for in Article 386(b) of the Criminal Code.
There are also specific cases of mandatory reporting, such as in the following situations:
a)
Under Law 112/2009, of September 16, Article 71(1) and (2) states that
"1 - Those in charge of shelters must report situations of victims of which they become aware to the competent Public Prosecution Service, for the purposes of the respective criminal proceedings.", [and that]
2 - When those in charge of shelters find grounds for reasonable suspicion that the minor children they have taken in have also been victims of domestic violence, they must immediately report this to the Public Prosecutor's Office, by means and in a manner that safeguard the confidentiality of the information."
b)
Article 69 of the Code of Ethics of the Portuguese Medical Association (published as an annex to Regulation no. 707/2016 of July 21, 2016) provides for mandatory reporting when there are suspicions that illicit transplants are being used or have been used, or that the donations are not voluntary or free of charge;
c)
Under Law no. 83/2017, of August 18 (which establishes measures to combat money laundering and terrorist financing), it is mandatory for certain entities (including Lawyers, Solicitors, Notaries, etc. ) to inform the Central Department of Investigation and Criminal Action of the Attorney General's Office (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 (see art. 43);
d)
According to the Witness Protection Act (Act no. 93/99, of July 14), "On its own initiative or at the request of the Public Prosecutor's Office, the defendant, the assistant or the witness, the court may decide that the provision of statements or testimony that must take place in a public procedural act or subject to contradictory proceedings takes place with the concealment of the image or distortion of the voice, or both, in order to avoid the recognition of the witness." (cfr. no. 1 of art. 4).
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2.
With regard to anonymous complaints, Article 246(6) of the Code of Criminal Procedure provides for this possibility provided that
a) it provides evidence that a crime has been committed (in the case of semi-public and private crimes, the holders of the right to complain must be informed in order to exercise this right); or
b) constitutes (in itself) a crime (e.g. slanderous accusation, libel, illegal recordings, etc.).
This provision was included in Rectification no. 105/2007, of November 9, following the Mérida Convention (Convention Against Corruption), which came into force in Portugal on October 28, 2007, which provides for the duty of each State "(...) to take appropriate measures to ensure that the competent anti-corruption bodies referred to in this Convention are known to the public and, where appropriate, that the public has access to them, with a view to communicating, including on the basis of anonymity, facts which may be considered infringements under the terms of this Convention."
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3.
Finally, Law no. 93/2021, of December 20, which establishes the general regime for the protection of whistleblowers, will enter into force 180 days after its publication (i.e. 20/12/2021, v.g. art. 31).
Briefly:
As for its object, art. 4 provides that the respective report or disclosure may concern infringements (for this notion see art. 2) that have been committed, are being committed, or can reasonably be foreseen, as well as attempts to conceal them.
As for the whistleblower (subject), Article 5(1) states that for the purposes of this Law "A natural person who reports or publicly discloses an infringement on the basis of information obtained in the course of their professional activity, regardless of the nature of this activity and the sector in which it is carried out (...)".
With regard to the means of making the complaint or public disclosure, these may be internal or, alternatively, external reporting channels (see Article 7(1) and (2)).
As far as confidentiality is concerned, art. 18 states that the identity and information that may reach the whistleblower is confidential and restricted to the persons responsible for receiving or following up on the reports, and may only be disclosed as a result of a legal obligation or court decision, in which case it will be preceded by written notice to the whistleblower (see paragraphs 1 to 4).
As far as protection measures are concerned, there is provision for prohibition and retaliation against the whistleblower, under the terms of paragraphs 2 to 8 of article 21, as well as support measures, under the terms of article 22, and within the scope of which the aforementioned Witness Protection Act applies.
Finally, with regard to the consequences of non-compliance with the obligations set out therein, without prejudice to possible criminal liability, administrative offenses may be imposed, with fines ranging from €500.00 to €25,000.00 for natural persons and €1,000.00 to €250,000.00 for legal persons. It should be noted that attempt and negligence are punishable (see art. 29).
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In practical terms, the entities covered by this law have 180 days to adapt to the new requirements, putting into practice the obligations laid down in the law, namely the channels for transmitting information.
However, in a society where money rules, only the future will tell the success and practical effectiveness of this new legal regime.
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