The new year of 2025 began with a long-awaited discussion on the recovery of assets generated by the offence of corruption.
The Minister of Justice, Rita Júdice, guaranteed that a proposal for the ‘confiscation’ of assets obtained from this type of crime would be presented this month [January].
However, it is well known that corruption is just one of many crimes that generate illicit assets, so this discussion is also necessary in relation to other crimes.
In this regard, it is also important to consider at what cost we intend to recover the assets generated by the crime?
The prohibition of ‘imprisonment for debt’ is indisputably a principle deriving from the Constitution of the Portuguese Republic. No Portuguese citizen can be deprived of their liberty because they owe money.
This is no longer the case in other countries!
However, the recovery of illicit assets and the punishment of agents who do not return the amount derived from the commission of crimes transcends borders and requires a coordinated response that may be hampered by this legislative mismatch.
Various instruments have been created to overcome legislative differences between countries, but the protection of national sovereignty remains a basic principle in international relations, which leads states to be reluctant to relinquish control over their criminal legislation.
## The Principle of Double Jeopardy
By way of example, the legal systems of the European arrest warrant and extradition (international judicial co-operation in criminal matters) provide for the control of double criminality.
The principle of dual criminality stipulates that the conduct giving rise to the request for the arrest and surrender of a citizen must be criminally punishable in both the requesting state and the executing state.
This principle aims to ensure that no state is obliged to co-operate in situations that conflict with its legal and social values.
Currently, there is no legal provision in Portugal that provides for the imposition of a prison sentence if the agent does not return the money derived from the offence, so third states are dependent on the goodwill of the Portuguese courts to enforce the surrender of a citizen in these circumstances (even if they are nationals of the requesting state).
It's easy to see that this safeguard can become an obstacle to foreign justice when it comes to punishing agents who fail to pay the amount corresponding to the illicit assets.
## An Emblematic Case
In the course of 2019, we saw the Portuguese Supreme Court of Justice make a decision that reveals the relevance of this issue.
The court refused to hand over a British citizen to the UK authorities under a European arrest warrant.
The warrant was aimed at enforcing a ten-year prison sentence resulting from the non-payment of a confiscation of approximately 19 million pounds from three money laundering offences, for which the British citizen had already served a four-year prison sentence.
Despite recognising the importance of preventing the acquisition and conservation of illicit profits, the Portuguese Supreme Court of Justice decided not to hand over the British citizen, taking into account the principles of criminal legality, adequacy, necessity and proportionality.
# Conclusion and Reflection: The legal gap in Portugal
Although the double jeopardy requirement is an extremely important guarantee to ensure sovereignty and respect for each country's legal system, it must be concluded that it can also be a barrier to global justice.
It should be noted that this formal requirement can be exploited as a form of ‘legal armour’ or ‘legal paradise’ by debtors who in these circumstances know that they are protected by more permissive legislation or legal loopholes.
Under this formality, they can reorganise their lives and avoid serving a prison sentence.
In order to overcome these limitations, it is important to reflect on the future of the judiciary.
Does the solution to this dilemma lie in greater legislative harmonisation? Are we moving towards a debate on the application of a prison sentence when there is no restitution of ill-gotten gains, even after the sentence for the original offence has been served? Will we see states relinquishing control over their criminal legislation?
These are crucial questions for the sustainable future of the European legal system and for maintaining international judicial cooperation.
After all, global justice can only thrive when it is not limited by geographical borders.
Article by: Tiago Melo Alves, Jéssica Gonçalves