The New Status of “Affected Person” in Criminal Law

Law 37/2026 of July 28, which entered into force on September 1, 2026, marks a structural change in Portuguese criminal proceedings. It does so by creating the status of “affected person,” thereby filling a significant gap in defense rights.

Until now, third parties—individuals or companies targeted by asset-confiscation requests or decisions—could remain exposed to serious consequences without effective defense rights during most of the criminal proceedings.

In this publication, we examine the new regime and explain how companies and individuals that may be targeted by seizure, attachment or confiscation decisions will now benefit from enhanced procedural safeguards. These include the right to intervene from the inquiry stage, file a defense, and appeal unfavorable decisions.

Context

The significance of the amendments introduced by Law 37/2026 of July 28 becomes clearer when set against a particularly atypical case.

In May 2022, the media reported that, in a high-profile criminal case, the Public Prosecutor’s Office had requested the confiscation of €3.3 billion from certain companies and their directors. None of them, however, had been named as defendants.

That request raised an obvious legal question, especially for those struck by the sheer scale of the confiscation request: what procedural rights did criminal procedure law afford those individuals or entities? Put another way, how—and when—could they defend themselves if they were not parties to the proceedings, yet stood to be directly affected by the outcome of the case?

Previous legal framework: Procedural limbo of third parties

The previous framework offered only limited protection. Specifically, article 347-A of the Code of Criminal Procedure allowed these third parties to make statements only at the trial hearing. They could do so in response to questions from a judge, a juror or the presiding judge. The request could come from the third party, the Public Prosecutor’s Office, defense counsel, or counsel for the assistant or civil party.

Article 347-A was added in 2017 by Law 30/2017 of May 30. That law transposed (albeit insufficiently, in our view) Directive 2014/42/EU of the European Parliament and of the Council of April 3, 2014, on the freezing and confiscation of instrumentalities and proceeds of crime in the European Union. The directive introduced the possibility of declaring the confiscation of proceeds belonging to third parties.

Consequently, from 2017 until now, the Public Prosecutor’s Office could request that third-party proceeds—potentially worth billions of euros—be declared forfeited to the state. However, those third parties had no right to intervene during the inquiry or instruction stage. Instead, their participation was limited to making statements at the trial hearing.

In short, the Code of Criminal Procedure did not give third parties a distinct procedural status. As a result, individuals or legal entities that were not defendants, but were nevertheless targeted by asset-confiscation requests, remained in procedural limbo. Their legal status was undefined by law, their participation at each stage of the proceedings was not guaranteed, and their defense rights were inadequate.

Law 37/2026: Introducing the “affected person” status

Law 37/2026 of July 28 entered into force on September 1, 2026, transposing Directive (EU) 2024/1260 on asset recovery and confiscation.

The law amends the Criminal Code, the Code of Criminal Procedure, Law 5/2002 of January 11, Law 45/2011 of June 24, Law on the Organization of the Judiciary System, and Decree-Law 109-E/2021 of December 9. Among other changes, it creates the status of “affected person.”

As recitals 22 and 46 of Directive (EU) 2024/1260 recognize, confiscation entails the final deprivation of property and significantly affects the rights of suspects, accused persons, and, in some cases, third parties. For that reason, specific safeguards and judicial remedies must be provided to protect those persons’ fundamental rights.

Definition of “affected person”

The Code of Criminal Procedure now defines “affected person” as an individual or legal person:

• who holds assets subject to a seizure, attachment or confiscation decision, or against whom one of those decisions is issued;
• whose rights in specific assets are directly impaired by those decisions;
• whose seized or attached assets are subject to early sale, even before a final confiscation decision; or
• against whom a confiscation request is filed.

Acquiring the status of “affected person”

A person acquires the status of “affected person” upon:

• the issuance of a seizure, attachment or confiscation decision against that person or in relation to the assets they hold;
• the order admitting the confiscation request; or
• notification of any act or order in the proceedings, in which case the person must be informed of their procedural position and related rights and duties.

Procedural rights and duties

Under the new legislation, the affected person has, at any stage of the proceedings and subject to the exceptions established by law, the right to:

• be present at procedural acts that directly concern them;
• be heard whenever decisions that personally affect them must be made;
• be informed of the facts underlying the seizure, attachment or confiscation decision;
• be assisted by counsel in every procedural act in which they participate;
• intervene in the inquiry and trial by offering evidence and requesting any measures that appear necessary;
• waive the right to object to confiscation;
• be informed of their rights by the judicial authority or criminal police body before which they appear;
• receive translation and interpretation; and
• appeal decisions unfavorable to them.

The affected person becomes a party to the proceedings and may participate effectively in the criminal case from the inquiry stage onward.

The law also establishes the duties imposed on the affected person. In line with the previous framework, these include the duty to answer judicial authorities truthfully.

Hearing during the inquiry stage

The Code of Criminal Procedure now provides that, if there are reasons to consider that a person may be affected by a confiscation decision, that person must be heard in that capacity during the inquiry stage.

This rule does not apply if the person cannot be notified or has already been heard as a defendant on the same matter.

Property guarantee measures

To secure the confiscation of assets or payment of their value, a financial bond and preventive attachment may be imposed on the affected person.

Defense

The affected person may now file a defense, together with a list of witnesses, within 20 days of notice of the confiscation request or any amendment to it.

Trial hearing and appeal

The affected person may be heard at the trial hearing at their own request or at the request of the Public Prosecutor’s Office, the defendant, the assistant, or the civil parties.

They are guaranteed at least one level of appeal against decisions unfavorable to them. An exceptional appeal to the Supreme Court of Justice is also available where an issue of fundamental importance arises or where admitting the appeal is clearly necessary for the better application of the law. The affected person may even appeal the confiscation decision where no appeal is admissible on the criminal-law issues. This ensures that protection of their property rights remains autonomous from the criminal proceedings.

Spontaneous intervention by the affected person

If the affected person has not been notified, they may apply to intervene in the proceedings to enforce their rights. They may do so until a first-instance decision is issued.

Separate confiscation proceedings

The Code of Criminal Procedure now provides for separate confiscation proceedings, initiated by the Public Prosecutor’s Office through an asset-confiscation request. This mechanism applies where the criminal case against all defendants ends at the inquiry or instruction stage, but indications remain that a typical unlawful act was committed. It does not apply where the case ended because of immunity, nor where the limitation period for criminal proceedings had expired—or the perpetrator had died—before the investigation was opened.

The law also allows the Public Prosecutor’s Office to request the conversion of the case into separate confiscation proceedings in certain circumstances. Specifically, this may occur where the criminal proceedings are terminated against all defendants after the indictment—or, if the instruction stage was requested, after the order to bring the case to trial—because the limitation period has expired (where the applicable period is less than 15 years), or because of illness, amnesty, or death. The request must be made within 20 days and may concern any affected persons who took part in those proceedings.

Without prejudice to the use of evidence already obtained, certain measures are not permitted. These include (i) interference with correspondence, telecommunications and other means of communication; (ii) investigative methods that may be directed only at suspects or defendants in criminal proceedings; and (iii) evidence-gathering measures that, given the purposes pursued, disproportionately interfere with private life, including physical examinations and blood tests. Covert investigative measures are prohibited in all circumstances.

Conclusion

With the entry into force of Law 37/2026 of July 28, a request like the one discussed at the outset of this article—the confiscation of substantial sums from companies or individuals who had not been named as defendants—is now accompanied by a distinct procedural status.

As affected persons, and as true parties to the proceedings, those companies or individuals are no longer confined to being heard only at the trial hearing. They may now intervene from the inquiry stage onward and exercise the defense rights expressly established in the Code of Criminal Procedure.