According to the current government’s programme, the fight against corruption is one of its fundamental aims, materialised in the National Anti-Corruption Strategy 2020-2024.
The draft laws aimed at implementing this Strategy institute a set of amendments to the Criminal Code, the Code of Criminal Procedure and related legislation, with the ultimate purpose of strengthening the repressive framework for corruption and related criminality.
One of the laws that approved the measures in the strategic plan was Law No. 94/2021, of 21 December, which reconfigured existing solutions. It amended article 374 – B of the Criminal Code (Decree-Law no. 48/95, of 15 March). This provision is replicated in Article 19-A, specifying the requirements for crimes of responsibility of holders of political office (Law 34/87 of 16 July).
Article 374-B of the Criminal Code, under the heading “exemption or mitigation of punishment”, defines the situations in which, if someone suspected or accused of a crime contributes to evidence, he or she – by verifying specific legal requirements – is rewarded for having contributed to the discovery of the truth. We are, then, in the presence of the so-called reward mechanisms as a means of combating corruption.
This rewarded collaboration has its raison d’être on several grounds, some of which have a more significant impact on the practice of corruption in Portugal, including the fact that the rewarded collaboration consists of a facilitating element of the system of proof; an element that may dissuade the practice of these crimes, since it is known that others may benefit from denouncing the crime and its agents; and the fact that it allows the protection of public peace to be achieved by reducing the dangerousness of a particular group of people.
Thus, following the legislative amendments referred to above, the article in question provides for cases of exemption from the mandatory penalty (no. 1), optional immunity from liability (no. 2) and special mitigation of the mandatory penalty (no. 5).
Under paragraph 1, the offender is excused from sentencing if other conditions are met, provided that he or she has reported the crime before criminal proceedings are instituted. Therefore, the neutralization of the devaluation involved in the corruption crime is at stake in this hypothesis.
Paragraph 2 provides that the offender may be exempted from punishment if, by verifying other conditions during the investigation or enquiry, he or she has made a decisive contribution to the discovery of the truth.
Finally, paragraph 5 provides that the penalty is specially mitigated if, until the conclusion of the trial hearing in the first instance, the agent actively collaborates in the discovery of the truth, contributing in a relevant manner to the proof of the facts.
Thus, what these regulations in the rewarding context aim to cover are situations in which the agent not only incriminates himself but also incriminates third parties. These are cases in which the agent collaborates fully, faithfully, and truthfully with Justice. This is the only way to consider that the circumstances required by law to allow for the special exemption or mitigation of punishment of a defendant who has committed a crime of corruption have been met.
Even though article 374 – B of the Penal Code provides mandatory rewarding solutions, provided that the legal conditions are met, what has been observed in Portuguese Criminal Procedure is a reluctance in its application that may lead to this mechanism for combating corruption not having the expected effects.
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