Debates Parlamentares - Diário 001, p. 35 (2020-09-15)

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15 DE SETEMBRO DE 2020

Agreement. 2 – Unless otherwise agreed by the Parties, the Parties would not share assets when the value of the assets

is below € 40,000 in value or its equivalent in U.S. dollars. 3 – To the extent permitted by their respective domestic law, the Parties anticipate that in ordinary cases in

which one Party has executed, enforced or otherwise recognized a confiscation that was obtained primarily by the investigative and litigating efforts of the other Party, sharing shall be in equal proportions.

4 – However, if, in providing cooperation, a Party has expended extraordinary resources to execute, enforce, or otherwise recognize the other Party’s confiscation, or has provided substantial evidence or investigative resources to support or to obtain that confiscation, then the other Party shall take such efforts into account in making its determination of the proportion to be shared in accordance with paragraph 1(a) of this Article.

5 – The Party sharing the confiscated assets may add interest or other increase in value accrued since the restraint of the asset and may deduct the expenses required to obtain the confiscation and to maintain the assets as well as to enforce the confiscation. Unless otherwise agreed by the Parties, deduction of expenses shall be limited to expenses external to the Parties such as those required for the use of a non-government practitioner, and shall not include internal costs of litigation by government attorneys or internal administrative and management efforts.

6 – Where there are identifiable victims of the criminal conduct underlying the confiscation, consideration of the rights of those victims shall take precedence over asset sharing between the Parties, except:

(a) where, following consultation pursuant to Article 11 and on a case-by-case basis, the Party that has

obtained primarily the confiscation, as referenced in paragraph 3 of this Article, determines that the number of victims and the value of confiscated assets are such that each victim’s portion would be de minimis; or

(b) where the value of confiscated assets exceeds the victim’s losses, in which event the excess may be

shared.

ARTICLE 7 TRANSFER OF SHARED ASSETS

1 – Unless otherwise agreed by the Parties, any sum to be shared pursuant to Article 6, paragraph (1) (b) of

this Agreement shall be transferred: (a) in the currency of the Party sharing the assets; and (b) by means of an electronic transfer of funds. 2 – Transfer of any sum shall be made: (a) When the United States of America is the receiving Party, to the United States of America, and sent to

the pertinent office or designated account of the U.S. Department of Justice or the U.S. Department of the Treasury as specified by those Departments;

(b) When the Portuguese Republic is the receiving Party, to the Asset Management Office of the Institute for Financial Management and Equipments of Justice, Ministry of Justice; or

(c) to any such recipient or recipients as the receiving Party may from time to time specify by notification for the purposes of this Article.

ARTICLE 8

TERMS OF TRANSFER Once the assets have been transferred, the Party sharing the assets shall be relieved of all liability related to

the assets, and shall relinquish any and all rights or title to and interest in the assets.

15 DE SETEMBRO DE 2020 35 Agreement. 2 – Unless otherwise agreed by the Parties, the Parties would not share assets when the value of the assets is below € 40,000 in value or its equivalent in U.S. dollars. 3 – To the extent permitted by their respective domestic law, the Parties anticipate that in ordinary cases in which one Party has executed, enforced or otherwise recognized a confiscation that was obtained primarily by the investigative and litigating efforts of the other Party, sharing shall be in equal proportions. 4 – However, if, in providing cooperation, a Party has expended extraordinary resources to execute, enforce, or otherwise recognize the other Party’s confiscation, or has provided substantial evidence or investigative resources to support or to obtain that confiscation, then the other Party shall take such efforts into account in making its determination of the proportion to be shared in accordance with paragraph 1(a) of this Article. 5 – The Party sharing the confiscated assets may add interest or other increase in value accrued since the restraint of the asset and may deduct the expenses required to obtain the confiscation and to maintain the assets as well as to enforce the confiscation. Unless otherwise agreed by the Parties, deduction of expenses shall be limited to expenses external to the Parties such as those required for the use of a non-government practitioner, and shall not include internal costs of litigation by government attorneys or internal administrative and management efforts. 6 – Where there are identifiable victims of the criminal conduct underlying the confiscation, consideration of the rights of those victims shall take precedence over asset sharing between the Parties, except: (a) where, following consultation pursuant to Article 11 and on a case-by-case basis, the Party that has obtained primarily the confiscation, as referenced in paragraph 3 of this Article, determines that the number of victims and the value of confiscated assets are such that each victim’s portion would be de minimis; or (b) where the value of confiscated assets exceeds the victim’s losses, in which event the excess may be shared. ARTICLE 7 TRANSFER OF SHARED ASSETS 1 – Unless otherwise agreed by the Parties, any sum to be shared pursuant to Article 6, paragraph (1) (b) of this Agreement shall be transferred: (a) in the currency of the Party sharing the assets; and (b) by means of an electronic transfer of funds. 2 – Transfer of any sum shall be made: (a) When the United States of America is the receiving Party, to the United States of America, and sent to the pertinent office or designated account of the U.S. Department of Justice or the U.S. Department of the Treasury as specified by those Departments; (b) When the Portuguese Republic is the receiving Party, to the Asset Management Office of the Institute for Financial Management and Equipments of Justice, Ministry of Justice; or (c) to any such recipient or recipients as the receiving Party may from time to time specify by notification for the purposes of this Article. ARTICLE 8 TERMS OF TRANSFER Once the assets have been transferred, the Party sharing the assets shall be relieved of all liability related to the assets, and shall relinquish any and all rights or title to and interest in the assets.

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