Portuguese Penal Code

acervo especial

VERBOJURIDICO

THE PORTUGUESE PENAL CODE

GENERAL PART (ARTICES 1-130)

TRADUÇÃO PARA INGLÊS DA PARTE GERAL DO CÓDIGO PENAL PORTUGUÊS

___________

ÉNIO RAMALHO

Licenciado em filologia germânica pela Universidade de Coimbra

WILLIAM THEMUDO GILMAN

Licenciado em direito pela Universidade de Coimbra

verbojuridico ®

______________

OUTUBRO DE 2006

2 : THE PORTUGUESE PENAL CODE (GENERAL PART) VERBOJURIDICO

Título: THE PORTUGUESE PENAL CODE (General Part)

Autor: Énio Ramalho – Licenciado em filologia germânica pela Universidade de Coimbra

William Themudo Gilman – Licenciado em direito pela Universidade de Coimbra

Data de Publicação: Outubro de 2006.

Classificação Direito Penal

Edição: Verbo Jurídico ® - www.verbojuridico.pt | .eu | .net | .org | .com.

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ÉNIO RAMALHO E WILLIAM THEMUDO GILMAN THE PORTUGUESE PENAL CODE (GENERAL PART) : 3

THE PORTUGUESE PENAL CODE

(General Part - Articles 1-130)

Unofficial translation

Énio Ramalho – Licenciado em filologia germânica pela Universidade de Coimbra

William Themudo Gilman – Licenciado em direito pela Universidade de Coimbra

BOOK I

GENERAL PART

TITLE I

THE CRIMINAL LAW

SINGLE CHAPTER

GENERAL PRINCIPLES

Article 1

Principle of legality

1- An act may only be criminally punished if it was determined punishable by law before the act was committed.

2- Security measures may only be applied to cases of perilousness, if its conditions are determined by law previous to its fulfilment.

3- An appeal to analogy is not permitted to qualify an act as criminal, to define a case of perilousness, or to determine a penalty or a corresponding security measure.

Article 2

Temporal applicability

1- Penalties and security measures are determined by the law in force at the time of the commission of the act or the fulfilment of the conditions which they depend on.

2- A punishable act in accordance with the law in force at the moment of its completion ceases being punishable if a new law eliminates it from the number of infractions; in this case, if there has been condemnation, even if it has become a definitive sentence, the execution ceases and all its penal effects.

3- If a law is valid for a determined period of time, an act committed during this period continues to be punishable.

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4- If the laws in force at the time of the commission of the punishable act are different from those established in posterior laws, the regime more favourable to the agent is always applicable, except when the agent has already been condemned by a definitive sentence.

Article 3

Time of the act

An act is considered as committed at the time the perpetrator acted or, in case of omission, should have acted, regardless of the time when the typical result occurs.

Article 4

Territorial applicability. General Principle.

Except when it is contrary to international treaties or conventions, Portuguese penal law is applicable to acts committed:

a) In Portuguese territory, regardless of the nationality of the agent; or

b) On board of Portuguese ships or aircrafts.

Article 5

Acts occurred abroad

1- Except when it is contrary to international treaties or conventions, Portuguese penal law is still applicable to acts committed abroad:

a) When regarded as a crime under the articles 221, 262 to 271, 300, 301, 308 to 321, 325 to 345;

b) When regarded as a crime under the articles 159, 160, 169, 172, 173, 176, 236 to 238, number 1 under the article 239, and the article 242, provided that the agent is found in Portugal and cannot be extradited;

c) By Portuguese, or by foreigners against Portuguese, whenever:

I) The agents are found in Portugal;

II) When they are also punishable by the law of the place in which they have been perpetrated, except when in that territory punitive power is not exerted; and

III) When they are considered a crime admitting extradition and this cannot be conceded; or

d) Against Portuguese, by Portuguese usually living in Portugal at the time of its perpetration, if they are found here;

e) By foreigners, when found in Portugal, whose extradition has been requested, when considered as crimes admitting extradition and this cannot be conceded.

2- Portuguese penal law is as well applicable to acts committed abroad, which the Portuguese State has bound itself to try, by international treaty or convention.

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Article 6

Restrictions on application of Portuguese law

1- The application of Portuguese law to acts perpetrated abroad only occurs when the agent has not been tried in the country where the act has been committed, or when he has evaded the fulfilment of the sentence, totally or partially.

2- Though Portuguese law may be applied in terms of the previous number, the act shall be tried according to the law of the country where the act has been perpetrated whenever this is more favourable to the agent. The applicable punishment is converted to that which corresponds to the Portuguese system or, if there is no direct correspondence, to that which the Portuguese law foresees for the act.

3- The regime of the previous number is not applicable to the crimes prescribed in a) number 1, under the article 5.

Article 7

Place of the commission of act

1- An act is considered as committed, as well in the place where, totally or partially, under whatever form of complicity, the agent has acted, or, in case of omission, should have acted, as in the place where the typical result, or the result not included in the type of the crime, has been produced.

2- In case of attempt, the act is equally considered as having been perpetrated in the place where, according to the representation of the agent, the result should have been produced.

Article 8

Subsidiary application of the penal code

The dispositions of this diploma are applicable to acts punishable by military penal law, as well as the mercantile marine law, and by the remnant legislation of special character, except when contrary legislation exists.

Article 9

Special dispositions for juvenile offenders

Rules fixed in special legislation are applicable to offenders over 16 and under 21.

TITLE II

THE ACT

CHAPTER I

BASES OF PUNISHABILITY

Article 10

Commission by action and by omission

1. When a legal type of crime includes a certain result, the fact comprises not only the action proper to produce it, as the omission of the action proper to avoid it, except if the intention of the law is different.

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2. The commission of a result by omission is only punishable when the omissive person is under a legal duty that personally obliges him to avoid that result.

3. In the case prescribed in the previous number, punishment can be especially mitigated.

Article 11

Individual nature of criminal responsibility

Unless otherwise stated, only individuals are liable to criminal responsibility.

Article 12

Acting on behalf of another

1- Whoever acts voluntarily as head of an organ of a corporation, society or mere de facto association, or in legal or voluntary representation of another, is punishable, even when the respective crime type requires:

a) Certain personal elements and these are only present in the person of the represented; or

b) That the agent executes the act in its own interest and the representative acts in the interest of the represented.

2- The ineffectiveness of the act that serves as foundation to the representation does not prevent the application of what is determined in the previous number.

Article 13

Intent and Negligence

Only acts committed with intent are punishable or, in the cases especially prescribed in the law, with negligence.

Article 14

Intent

1- Whoever, representing an act that constitutes a type of crime, carries it on, with the purpose of accomplishing it, acts with intent.

2- A person still acts with intent when he represents the accomplishment of an act that constitutes a type of crime as a necessary consequence of his conduct.

3- When the accomplishment of an act that constitutes a type of crime is represented as a possible consequence of the conduct, there is intent if the agent acts accepting that accomplishment.

Article 15

Negligence

A person acts with negligence when he does not behave with the care to which, according to circumstances, is obliged and is capable of, and:

a) Represents as possible the accomplishment of an act that constitutes a type of crime, but acts without accepting that accomplishment; or

b) Does not even represent the possibility of the accomplishment of that act.

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Article 16

Mistake about circumstances of the act

1- The Mistake about fact or law elements of a type of crime or about prohibitions the knowledge of which is reasonably indispensable for the agent to become aware of the act unlawfulness excludes intent.

2- The rule established in the previous number applies to the mistake about a state of things that, if existing, would have excluded the unlawfulness of the fact or the agent’s fault.

3- Punishability is safeguarded in negligence general terms.

Article 17

Mistake about unlawfulness

1- A person acts without fault when he acts unaware of the unlawfulness of the act, if his mistake is not censurable.

2- If his mistake is censurable, the agent is punished with the sentence applicable to the respective intentional crime, which can be especially mitigated.

Article 18

Aggravation of penalty for the result

When the penalty applicable to an act is aggravated according to the production of a result, the aggravation is always conditioned by the possibility of attributing that result to the agent at least by negligence.

Article 19

Imputability by reason of age

Minors under 16 are not imputable.

Article 20º

No imputability by reason of a disease of the mind

1- A person is not imputable if, due to a disease of the mind, he is incapable, at the time of committing the act, to appreciate its unlawfulness or to conform his conduct in accordance with that appreciation.

2- A person may be declared not imputable if, due to a serious disease of the mind, not accidental and whose effects he cannot control, without being thereby censurable, has, at the time of committing the act, the capacity to appreciate its unlawfulness or to conform his conduct in accordance with that appreciation, sensibly diminished.

3- The agent’s proved incapacity to be influenced by punishment may constitute a sign of the situation defined in the previous number.

4- Imputability is not excluded when the disease of the mind has been caused by the agent himself with the intention to commit the act.

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CHAPTER II

FORMS OF CRIME

Article 21

Preparatory acts

Preparatory acts are not punishable, except when contrary legislation exists.

Article 22

Attempt

1. Attempt exists when the agent performs acts for the execution of a crime he has decided to perpetrate, which he failed to consummate.

2. Execution acts are:

a) Those that fulfil a constituent element of a type of crime;

b) Those that are proper to produce a typical result; or

c) Those that, according to common experience and excepting unexpected circumstances, are of a nature as being expected to be followed by acts of the types named in the previous paragraphs.

Article 23

Punishability of attempt

1. Except when there is contrary legislation, attempt is only punishable when the respective consummated crime corresponds to a penalty over three years of imprisonment.

2. Attempt is punishable with the penalty applied (applicable) to the consummated crime, specially mitigated.

3. Attempt is not punishable when the means used by the agent is obviously improper, or when the object essential to the commitment of the crime is not existent.

Article 24

Desistance

1. Attempt ceases to be punishable if the agent voluntarily desists from proceeding in the execution of the crime, or prevents its consummation, or, notwithstanding its consummation, prevents the verification of the result not included in the type of crime.

2. When the consummation or the verification of the result are prevented by an act independent of the desistant’s behaviour, the attempt is not punishable if he has made serious efforts to prevent the one and the other.

Article 25

Desistance in case of abetting

If various agents abet in the act, the attempt of he who voluntarily prevents the consummation or the verification of the act result is not punishable, nor the one who makes serious efforts to prevent the one and the other, even when the other participants proceed with the execution of the crime or consummate it.

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Article 26

Authorship

He who performs the act, by himself or by someone as an intermediary, or who directly participates in its execution, in agreement or together with other person, or other persons, or who intentionally determines other person to carry out the act, is punishable as principal, if there has been execution or the beginning of execution.

Article 27

Complicity

1. He who, intentionally or in whatever form, materially or morally helps other person to perform an intentional act, is punishable as accomplice.

2. The penalty applicable to the accomplice is the one which is fixed for the principal, specially mitigated.

Article 28

Illicitude in participation

1. If illicitude or the degree of illicitude of the act depends on certain qualities or special relations of the agent, to make the respective penalty applicable to all participants it is enough that these qualities or relations occur in any of them, except if the incriminatory rule is different.

2. Whenever owing to the rule provided for in the previous number it results in a more severe penalty for some of the comparticipants, this may be substituted, in consideration of the circumstances of the case, for the one that would occur if that rule did not intervene.

Article 29

Guilt in participation

Each participant is punished according to his guilt, regardless of the punishment or degree of guilt concerning the other participants.

Article 30

Concurrence of crimes and continuous crime

1. The number of crimes is determined by the number of types of crime really committed, or by the number of times that the some type of crime is fulfilled by the agent’s conduct.

2. The multiple accomplishment of the same type of crime or of several types of crime that fundamentally protect the same juridical asset constitutes only one continuous crime, when performed in an essentially homogeneous way and under the solicitation of a same external situation that considerably diminishes the agent’s culpability.

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CHAPTER III

CAUSES FOR EXCLUSION OF UNLAWFULNESS AND OF GUILT

Article 31

Exclusion of unlawfulness

1- The act is not criminally punishable when its unlawfulness is excluded by the legal system considered as a whole.

2- Namely, the act is not unlawful when committed:

a) In legitimate defence;

b) In the exercise of a right;

c) In fulfilment of a duty imposed by law or by an authority legitimate order;

d) With the consent of the holder of the harmed legal interest.

Article 32

Legitimate defence

An act constitutes legitimate defence when committed as the necessary means to repel a present and unlawful aggression on legally protected interests of the agent or of a third person.

Article 33

Excess of legitimate defence

1- If there is excess of the means employed in legitimate defence, the act is unlawful but punishment may be especially mitigated.

2- The agent is not punished if the excess results from non-censurable disturbance, fear or shock.

Article 34

Necessity right

An act is not unlawful when committed as an appropriate means to avert a present danger that threatens legally protected interests of the agent or of a third person, if the following requisites are verified:

a) The danger situation must not have been voluntarily created by the agent, save in case of protecting the third person’s interest;

b) There is a sensible superiority of the interest to be safeguarded relatively to the sacrificed interest; and

c) It is reasonable to impose on the victim the sacrifice of his interest, considering the nature or value of the threatened interest.

Article 35

Exculpatory necessity state

1- Whoever commits an unlawful act appropriate to avert a present danger, not differently removable, that threatens life, physical integrity, honour or freedom of the agent or of a third person, Acts without guilt when it is not reasonable to demand, according to the circumstances of the case, a different behaviour.

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2- If the danger threatens legal interests other than those referred to in the previous number, and if the rest of the preconditions there mentioned are verified, punishment may be especially mitigated or, exceptionally, the agent exempted of punishment.

Article 36

Conflict of duties

1- An act committed by a person who, in case of conflict on the accomplishment of legal duties or legitimate orders from the authority, fulfils the duty or order of equal or superior value to the sacrificed duty or order is not unlawful.

2- The duty of hierarchical obedience stops when it leads to the commitment of a crime.

Article 37

Exculpatory undue obedience

A public servant who fulfils an order not knowing that it leads to the commitment of a crime, acts without guilt if it was not evident within the frame of circumstances represented by him.

Article 38

Consent

1- Besides the cases especially prescribed in the law, consent excludes the act unlawfulness when it refers to freely disposable legal interests and the act does not offend social mores.

2- Consent may be expressed by all means revealing a free, honest and enlightened will of the holder of the protected legal interest, and it can be freely withdrawn until the execution of the act.

3- Consent is effective only if it has been given by someone who is over 14 years old and has the necessary discernment to judge its meaning and range, at the moment it is given.

4- If the consent is not known to the agent, he shall be punished with the penalty applicable to attempt.

Article 39

Presumed consent

1- Presumed consent is dealt with as effective consent.

2- There is presumed consent when the situation, where the agent is acting on, reasonably permits to suppose that the holder of the legally protected interest would have effectively given consent to the act, if he had known the circumstances in which it is committed.

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TITLE III

JURIDICAL CONSEQUENCES OF THE ACT

CHAPTER I

PRELIMINARY PROVISION

Article 40

The aims of penalties and security measures

1- The application of penalties and security measures aims at the protection of juridical assets and the agent’s reintegration in society.

2- The penalty should in no case exceed the extent of the guilt.

3- The security measure can only be applied if it is proportional to gravity of the act and the perilousness of the agent.

CHAPTER II

PENALTIES

SECTION I

IMPRISONMENT AND FINE

Article 41

Duration of imprisonment penalty

1- Imprisonment penalty usually has the minimum duration of one month and the maximum duration of 20 years.

2- The maximum limit of imprisonment penalty is 25 years in the cases prescribed by law.

3- The maximum limit referred to in the previous number in no case should be exceeded.

Article 42

Duration of confinement

The duration counting for the sentence of confinement is done according to the criterion established by penal law procedure and, in case of omission, by civil law.

Article 43

Execution of imprisonment sentence

1- The execution of imprisonment sentence, which serves the defence of society and prevents the perpetration of crimes, should be guided to enable the social reintegration of the prisoner, and to prepare him to lead his life in a socially responsible way, without committing crimes.

2- The execution of imprisonment sentence is rules in its proper legislation, in which the duties and the rights of the prisoners are fixed.

Article 44

Substitution of short penalty imprisonment

1- An imprisonment sentence applied to a period not exceeding 6 months is substituted for a fine penalty or for another non-custodial applicable penalty, except if the execution of imprisonment is

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required by the necessity of preventing further crimes. The rule prescribed in number 3 under the article 47 is correspondingly applicable.

2- If the fine is not paid, the convict is sent to prison with the penalty applied in the sentence. That which is prescribed in number 3 under the article 49 is correspondingly applicable.

Article 45

Free days imprisonment

1- Imprisonment penalty for a period not exceeding 3 months, which must not be substituted for a fine or other non-custodial penalty, shall be fulfilled on free days whenever the tribunal concludes that, in the referred case, this form of fulfilment is proper and sufficient for punishment goals.

2- The imprisonment on free days consists in deprivation of liberty during correspondent periods of weekends, which should not exceed 18 periods.

3- Each period has the minimum duration of 36 hours and the maximum of 48 hours, equalizing 5 days of continuous imprisonment.

4- The holidays previous to, or immediately following a weekend may be used to execute the imprisonment on free days, regardless of the maximum duration established for each period.

Article 46

Regime of semi-detention

1- The imprisonment penalty of a period not exceeding 3 months, which is not substituted for a fine or other non-custodial penalty nor carried out on free days, may be executed in a regime of semi-detention, if the convict agrees.

2- The regime of semi-detention consists in a deprivation of liberty that allows the convict to proceed his normal professional activity, his professional formation or his studies, with permission to stay out strictly limited to the fulfilment of his duties.

Article 47

Fine penalty

1- A fine penalty is fixed with reference to days, in accordance with the criterion established in number 1 under the article 71, and generally has a minimum limit of 10 days and a maximum of 360 days

2- Each day corresponds to a fine from €1 to €498.80, which the tribunal fixes in regard to the economic and financial conditions of the convict and his personal duties.

3- Whenever it is justifiable by the economic and financial conditions of the convict, the tribunal may authorize the payment of fine within a term not exceeding 1 year, or allow the payment by means of instalments, the last of which not exceeding 2 years subsequent to the date of the definite sentence of conviction.

4- Within the limits referred to in the previous number and when posterior motives justify it, the period of payment initially established may be altered.

Article 48

Substitution of fine for work

1- When requested by the convict, the tribunal may order a fixed fine to be totally or partially substituted for work in establishments, factories or State works and other corporation, legal person,

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or private institutions of social solidarity, when the tribunal concludes that this form of fulfilment executes the aims of punishment properly and sufficiently.

2- The provisions in number 3 and 4 under the article 58, and in number 1 under the article 59, are correspondingly applicable.

Article 49

Conversion of unpaid fine for subsidiary imprisonment

1- If the fine, which has not been substituted for work, failed to be paid, voluntarily or coercively, subsidiary imprisonment is imposed on the convict for a corresponding time reduced to 2/3 rd , even if the crime is not punishable by imprisonment, and the minimum limit of days concerning number

1 under the article 41 is not applied.

2- The convict may all the time avoid the subsidiary imprisonment execution of imprisonment if he, totally or partially, pays the fine of which he has been convicted.

3- If the convict proves that the reason for not paying the fine is not imputable to him, the execution of the subsidiary imprisonment may be suspended for 1 to 3 years, as long as the suspension is dependent on the fulfilment of duties or rules of behaviour of non-economic or financial nature. If the duties or rules of conduct are not fulfilled, subsidiary imprisonment shall be executed; if they are, the penalty is declared to be extinct.

4- The rules in number 1 and 2 are correspondingly applicable to the case in which the convict guiltily fails to fulfil the working days, for which, by his own request, the fine was substituted. If the failure of fulfilment is not imputable to him, that which is prescribed in the previous number is correspondingly applicable.

SECTION II

SUSPENSION OF THE EXECUTION OF IMPRISONMENT

Article 50

Prerequisites and duration

1- The court suspends the execution of an imprisonment sentence of no more than 3 years, if, taking into consideration the agent’s personality, the conditions of his living, his conduct previous to and after the crime, and the crime circumstances, it concludes that the mere censure of the act and the threat of imprisonment will achieve the aims of punishment.

2- If the court considers it convenient and appropriate to the achievement of the aims of punishment, it subordinates the suspension of the sentence of imprisonment, in the terms of the following articles, to the fulfilment of duties or to the observance of rules of conduct, or determines that the suspension will be accompanied by probation regime.

3- The duties, rules of conduct and the probation regime may be cumulatively imposed.

4- The condemnatory decision always specifies the reasons for suspension and its conditions.

5- The period for the suspension is fixed between 1 and 5 years counting from the time the sentence had become definitive.

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Article 51

Duties

1- The suspension of the execution of the imprisonment sentence may be subjected to the fulfilment of duties imposed upon the convict with the purpose of repairing the damages of the crime, namely:

a) To pay in a certain time-limit the compensation owed to the victim, in whole or in the part that the court considers possible, or to assure its payment by means of a suitable guarantee;

b) To give the victim an appropriate moral satisfaction;

c) To give a sum of money or to make payment equivalent in kind to public or private institutions of social solidarity.

2- The duties imposed must in no case represent obligations to the convict, the fulfilment of which is not reasonable to demand.

3- The duties imposed may be modified until the end of the period of suspension, whenever relevant supervening circumstances occur or of which the court only later has knowledge.

Article 52

Rules of conduct

1- During the time of the suspension, the court may impose upon the convict the fulfilment of rules of conduct designed to ease his reintegration in society, namely:

a) not exerting certain professions;

b) not frequenting certain environments or places;

c) not living in certain places or regions;

d) not accompanying, putting up or receiving certain persons;

e) not frequenting certain associations or not participating in certain meetings;

f) not having in his possession objects capable of facilitating the commitment of crimes;

g) to appear periodically before the court, the social reinsertion expert or non-police entities.

2- Once obtained the previous consent of the convicted, the court may also determine his subjection to medical treatment or to a cure in an appropriated institution.

3- The prescriptions in numbers 2 and 3 of the previous article are correspondingly applicable.

Article 53

Suspension with probation

1- The court may determine the suspension to be accompanied by probation, if it is considered convenient and proper to facilitate the reintegration of the convict in society.

2- Probation is based upon an individual social re-adaptation plan, carried on with the support and checking by the social reintegration services, during the period of suspension.

3- Probation is, as a rule, to be applied when the imprisonment sentence has been suspended, if the penalty is superior to 1 year, and the convict is under 25 years of age at the time of the crime.

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Article 54

Individual social re-adaptation plan

1- The individual social re-adaptation plan is communicated to the convict and should obtain, whenever possible, the convict’s agreement.

2- The court may impose the duties and rules of conduct referred to in articles 51 and 52 and also other obligations that have some interest to the re-adaptation plan and to the sentiment of social responsibility of the convict, namely:

a) To obey the summons of the magistrate in charge of the execution and of the social reinsertion expert;

b) To receive the visits of the social reinsertion expert and communicate or grant information and documents of his means of subsistence at his disposal;

c) To inform the social reinsertion expert about residence and employment changes, as well as on any travel of more than 8 days and the predictable date of return;

d) To obtain previous authorization from the magistrate in charge of the execution for journeys abroad.

Article 55

Failure to fulfil the suspension conditions

If, during the period of suspension, the convict guiltily stops the fulfilling of any of the imposed duties or rules of conduct, or does not fit the re-adaptation plan, the court may:

a) Give a solemn warning;

b) Demand guarantees to the fulfilment of the obligations that condition the suspension;

c) Impose new duties or rules of conduct, or add increased demands to the re-adaptation plan;

d) Extend the period of suspension up to half the initial fixed term, but for no less than 1 year and not exceeding the maximum suspension term prescribed in number 5 of article 50.

Article 56