In 2004, the defendant José, together with BB, CC and DD, decided to start introducing narcotic drugs, notably cocaine, in Spain, in order to obtain higher profits.
Thus, according to this criminal plan, BB, CC and DD, residing in Brazil, provided for the transportation of cocaine to Portugal, where the defendant José would collect and transport it and, subsequently, sell it in Spain.
In accordance with this plan, on 7 July 2004, the ship 'North Express' moored in the Port of Leixões, Matosinhos, and unloaded the containers CMCU 210514.0 and GLDU 223878-7, which had been shipped in the port of Santos, Brazil, on 1 June 2004.
The container CMCU 210514-0 contained 8 packages, each of them with the approximate weight of one kilogram and the container, GLDU 223878-7, contained 2,231.615 kilograms of cocaine, which were hidden inside boxes of ceramic floor tiles.
The defendant José, in cooperation with BB, CC and DD, bought and created several companies and opened in his name and on behalf of those companies different bank accounts, notably in Madeira’s offshore.
The defendant José, one of the partners of Company-D, with an office in Rua Estela in São Paulo, Brazil, transferred to an account held by Company-C a large sum of US dollars.
Company-C, which has never engaged in any activities, made several bank transfers of large sums of US dollars.
The defendant José acted freely, knowingly and deliberately, to execute the plan previously agreed between himself and BB, CC and DD and to attain their purpose of introducing narcotic products or substances in Portugal and Spain, from an unknown date onwards, with a view to selling them to numerous consumers, while knowing that the product they introduced in Portugal consisted of narcotic drugs, thereby obtaining high profits.
The defendant José had the sole and exclusive power to operate bank accounts and was ready to hold and keep available the amounts in cash held therein.
葡萄牙
西班牙
巴西During the proceedings the following amounts of money were seized: 88,890.14€ of an account held by Company-C at the Bank Millenium – BCP; 12,500.00€ of an account held by the defendant José at the Bank Millenium – BCP; 32,080.10 € of an account held by the defendant José at the Bank Milleninum - BCP; 69316166 participating bonds of the Fund “AF Prudente”; 22651903 participating bonds and capital of BCP/05 and 18,000 bonds of the defendant José at the Bank Millenium - BCP; 650.82 € of an account held by Company – C at the Bank BES; 20,390.90 € of an account held by Company-C at Barclays Bank; 14,944.03 € of an account held by the defendant José at Barclays Bank.
The investigation into the case was carried out by the Criminal Investigation Police (Polícia Judiciária). They made use of phone interceptions, surveillance, searches and seizures, and cooperated with the Brazilian homologues.
A summary financial investigation was also carried out.
During the inquiry, several phone interceptions took place according to arts. 187 et seq. of the CCP. Searches were also carried out according to art. 174 et seq. of the same Code. These were aimed not only at collecting evidence on the perpetration of the offence but also on the seizure of intrumentalities, proceeds and advantages deriving from them.
In order to prevent the defendant from escaping, his remand in custody was requested according to art. 202 of the CCP.
The defendant was in Spain, where he had been arrested following an EAW and had been surrendered to the national authorities.
西班牙巴西
意大利
瑞典
美利坚合众国
瑞士
大不列颠及北爱尔兰联合王国葡萄牙
中国The competent Spanish and Brazilian authorities collaborated with the investigation; they made available all the information needed for the investigation carried out in Portugal. Police information was also requested from Italian, Swedish, Chinese, American, Swiss and British authorities, notably on the commercial activities developed in those countries by the defendant, as well as by companies directly or indirectly run by him.
Police information was also requested from Italian, Swedish, Chinese, American, Swiss and British authorities (with a view to finding the funds resulting from the defendant’s criminal activity).
European arrest warrant:
- During the investigation, after the seizure of the narcotic drugs, a European Arrest Warrant was issued in relation to the defendant José. Such warrant eventually was executed in Spain on 9 July 2004 and the defendant was surrendered to national authorities on the 23rd of the same month. The authorities also sent several assistance requests to Spanish, Brazilian and US authorities, asking for different legal steps to be implemented in the scope of the investigation.
- The warrant was issued on the basis of articles 21, n.1 and 24 (b), (c) and (j) (aggravated drug trafficking of Decree-Law 15/93, of 22 January; article 23, n.1 (conversion, transfer or concealment of property or proceeds) and article 28, n.1 (criminal organizations), from the same legal text. In fact, although at the beginning of the inquiry the Public Prosecutor had directed the investigation towards the criminal organization offence as well, he did not use that offence because he did not find evidence of its perpetration.
Mutual legal assistance:
- Several rogatory letters were also sent to the Spanish, Brazilian and American authorities asking them to carry out several steps of the inquiry, notably house searches, searches in offices, collection of bank information, interrogation of suspects and witness hearing, inventory of movable and immovable property directly or indirectly held by the defendant in those countries, and seizure of bank account deposits.
- The main difficulty was in making mutual legal assistance compatible with procedural deadlines, in particular the deadline for filing charges (accusation). In fact, the rogatory letters sent to Spain, Brazil and the USA were returned after the maximum time-limit for remand in custody during the prosecutorial phase had expired; thus, the charges were brought even before the rogatory letters were received back, without reflecting the information resulting therefrom.
The inquiry stage took place normally; under the Portuguese relevant legislation, the investigation was carried out by the Criminal Police under the functional guidance of the Public Prosecution. At the end of the inquiry the Public Prosecutor charged the defendant with the offences provided for by articles 21, n.1 and 24 (b) and (c) (aggravated drug trafficking) and by article 23, n.1 (conversion, transfer or concealment of property or proceeds) of Decree-Law 15/93, of 22 January.
The same happened with the Court hearing and trial in the first instance; all defence rights were guaranteed to the defence.
In the instruction stage (instrução) the defendant raised a series of questions, in particular, that the phone interceptions were null and void. The examining judge overturned all those questions and the defendant was eventually indicted in the same terms under which he had been charged.
In the first instance Court the defendant was sentenced to imprisonment for 14 years and the objects and amounts seized were confiscated to the State for the perpetration of an offence of aggravated drug trafficking, provided for and punished by articles 21, n. 1 and 24 (b) and (c) of Decree-Law 15/93, of 22 January.
The defendant was also charged with money laundering but was acquitted of that charge (article 23, n. 1 of Decree-Law 15/93, of 22 January).
In the first instance Court the defendant was sentenced to imprisonment for 14 years and the objects and amounts seized were confiscated to the State for the perpetration of an offence of aggravated drug trafficking, provided for and punished by articles 21, n. 1 and 24 (b) and (c) of Decree-Law 15/93, of 22 January.
As mentioned before, seizure and subsequent confiscation of instrumentalities, as well as of the amounts deposited in accounts held either by the defendant or by companies, of which he was the main beneficiary, have been carried out. The link between these amounts and the criminal offence of drug trafficking was not proven, but the Supreme Court of Justice considered that, under Law 5/2002, of 11 January, such amounts should be deemed to derive from the criminal activity.
The Supreme Court of Justice eventually reduced the sentence to imprisonment for 11 years and confirmed the remaining part of the appealed judgment (notably as regarded the criminal offence committed).
The ruling of the Supreme Court of Justice was issued on 24 October 2006 and may be found in www.dgsi.pt or in the Bulletin of the Supreme Court of Justice (judgments), III, pp. 215 et seq.
The Supreme Court of Justice eventually reduced the sentence to imprisonment for 11 years and confirmed the remaining part of the appealed judgment (notably as regarded the criminal offence committed).
The ruling of the Supreme Court of Justice was issued on 24 October 2006 and may be found in www.dgsi.pt or in the Bulletin of the Supreme Court of Justice (judgments), III, pp. 215 et seq.
The defendant José acted freely, knowingly and deliberately, sharing purposes and combining efforts, in order to execute the plan previously agreed between him and BB, CC and DD and to attain their purpose of introducing narcotic products or substances in Portugal and Spain, from an unknown date onwards, with a view to selling them to numerous consumers, while knowing that the product they introduced in Portugal consisted of narcotic drugs, thereby obtaining high profits.
The defendant José had the sole and exclusive power of operating bank accounts and was ready to hold and keep available the amounts in cash held therein.
Defendant was acquitted of Charge (2).
Aggravated drug trafficking
money laundering
The ruling of the Supreme Court of Justice was issued on 24 October 2006 and may be found in www.dgsi.pt or in the Bulletin of the Supreme Court of Justice (judgments), III, pp. 215 et seq.
- The case is very relevant not only because of its international connections (Portugal, Brazil, Spain) but also because it applied the regime of extended confiscation, established by Law 5/2002, of 11 January, although that regime has not been invoked in the charges (accusation); the prosecution merely sought to demonstrate, if possible, that the assets derived directly from drug trafficking, as developed by the defendant.
- In spite of the inherent difficulties, this case demonstrates that it is possible to undertake, within a short period of time, a financial or patrimonial investigation, as minimum as it may be, leading to the recovery of, at least, part of the assets generated by the criminal offence perpetrated by the defendant.
The case allows to conclude that extended confiscation, as established by Law 5/2002, of 11 January, may be applied even if the Public Prosecutor, when indicating the property to be confiscated, has not expressly mentioned it in the charges (accusation). In any case, it is advisable to establish in the accusation the amount to be confiscated and to indicate the corresponding legal provision.