New confiscation regime: the State may keep assets even without a conviction — from 1 September
Law no. 37/2026 of 28 July transposes the EU asset-recovery directive and amends the Criminal Code, the Code of Criminal Procedure and Law no. 5/2002, with effect from 01/09/2026. It creates a standalone confiscation procedure, allowing the State to confiscate instruments, proceeds and advantages of crime even where the criminal case ends without a conviction (death of the agent, amnesty, closure with evidence of the unlawful act subsisting), reinforces extended confiscation — now covering offences punishable by a maximum of 4 or more years capable of generating economic benefit, with the disproportion between assets and lawful income taking centre stage — and allows the early sale of seized assets. In return, it creates the status of “affected person”: anyone whose assets are caught up in someone else’s case (spouses, relatives, companies) gains the right to be informed, heard, to submit evidence and to appeal; urgent seizures by the Asset Recovery Office become subject to judicial validation within 72 hours. Asset risk now runs separately from criminal risk — react early to any seizure or freezing order. Ref.: Law no. 37/2026 of 28 July, Official Gazette, 1st series, 28/07/2026 (effects from 01/09/2026).
Criminal procedure reform: Bar Association calls for constitutionality review
The day after Law no. 34/2026 was published — it enters into force on 1 September — the Portuguese Bar Association addressed the 19 entities with constitutional standing, from the President of the Republic to the Prosecutor General, urging them to ask the Constitutional Court for an abstract ex-post review of several provisions of the reform. In the crosshairs are, among others, the fines of up to €10,200 for motions deemed manifestly unfounded or dilatory (new article 521-A of the Code of Criminal Procedure) and the waiver of evidence production upon a full confession, even for crimes punishable by more than 5 years’ imprisonment. As of 13 August there was no public record of any request filed with the Constitutional Court. For anyone facing charges from September onwards, procedural strategy will have to be more selective — and unconstitutionality arguments can be raised case by case, in concrete proceedings. Ref.: Law no. 34/2026 of 27 July (in force 01/09/2026); public appeal of the Bar Association, 28/07/2026.
Encrypted messages gathered abroad count as evidence in Portugal, Supreme Court confirms
In an aggravated drug-trafficking case built on Sky ECC encrypted-network evidence transferred by foreign authorities under a European Investigation Order, the Supreme Court held that Portuguese courts cannot review the lawfulness of the gathering in the foreign proceedings (mutual recognition): evidence is excluded only if the essential core of fundamental rights is breached or if the defence cannot effectively address decisive evidence. The Supreme Court declined a referral to the CJEU — the issue is settled by the EncroChat judgment (C-670/22) — and left two weighty notes: legal opinions must be filed by the close of the first-instance hearing (article 165(3) of the Code of Criminal Procedure), and the Public Prosecutor may reopen closed inquiries when new evidence emerges. For the defence, the battle in these cases is fought through adversarial scrutiny of the data’s reliability and integrity — not through the alleged unlawfulness of the gathering abroad. Ref.: Supreme Court of Justice, 23/07/2026, case no. 267/21.0JELSB.L1.S1, Reporting Judge Fernando Ventura (unanimous), disclosed in August.
Uniformisation on statements for future memory still awaits publication in the Official Gazette
The judgment of the full criminal sections of the Supreme Court of 08/07/2026 — allowing courts to rely on statements for future memory given by a domestic violence victim who later validly refuses to testify at trial — remained unpublished in the Official Gazette as of 13 August (the latest uniformising judgment published is AUJ no. 5/2026, from the social section, in the Gazette of 22/07). Only upon publication does it formally count as settled case law (article 444 of the Code of Criminal Procedure). Until then, the practical framework we flagged in the last edition stands: the defence must exercise full adversarial rights at the future-memory hearing itself, which requires the prior formal naming of the suspect as defendant (Constitutional Court ruling no. 588/2026). We will track the publication. Ref.: Supreme Court of Justice (full criminal sections), 08/07/2026, case no. 57/21.0GACDR.C2-A.S1 — publication in the Official Gazette pending as of 13/08/2026.
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