BOOK I-GENERAL PART

TITLE II-THE ACT

CHAPTER II-FORMS OF CRIME

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.

BOOK I-GENERAL PART

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.

BOOK I-GENERAL PART

TITLE III-JURIDICAL CONSEQUENCES OF THE ACT

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 isrequired 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,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 2/3rd , 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.

BOOK I-GENERAL PART

TITLE III-JURIDICAL CONSEQUENCES OF THE ACT

CHAPTER II-PENALTIES

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.


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.


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
Revocation of suspension

1- The suspension of execution of the imprisonment sentence shall be revoked whenever during its term, the convict:
a) Grossly or repeatedly infringes the imposed duties or rules of conduct or the individual social re- adaptation plan; or
b) Commits a crime for which he is posteriously sentenced, and shows that the aims that were at the basis of the suspension were not able, thereby, to be achieved.

2- The revocation implies the enforcement of the imprisonment penalty fixed in the judgement, without being possible for the convict to demand the restitution of any instalments he had paid.


Article 57
Sentence extinction

1- The sentence is declared extinct if, at the end of the suspension period, there are no motives that
may lead to its revocation.

2- If, at the end of the suspension period, there is a process pending because of a crime that may determine its revocation or a proceeding for breach of fulfilling duties, rules of conduct or individual social re-adaptation plan, the sentence is only declared extinct when the process or proceeding have ended without the revocation or prorogation of the suspension period being ordered.

BOOK I-GENERAL PART

TITLE III-JURIDICAL CONSEQUENCES OF THE ACT

CHAPTER II-PENALTIES

SECTION III
WORK FOR THE COMMUNITY AND ADMONITION

Article 58
Work for the community

1- If an imprisonment sentence not exceeding one year is to be imposed upon the agent, the court will substitute it for work for the community whenever it concludes thereby that the aims of punishment will be achieved in a proper and sufficient form.

2- Work for the community consists in the performance of unpaid services to the State, to other public law corporations or to private entities the aims of which the court considers of interest to the community.

3- The work is fixed between 36 and 380 hours, and it can be done on working days, on Saturdays, Sundays and holidays.

4 – The duration of the working periods shall not disturb the usual day’s work, nor exceed, per day, that which is allowed according to the applicable overtime regime.

5 – The penalty of work for the community may only be imposed with the consent of the convict.


Article 59
Temporary suspension, revocation, extinguishment and substitution

1- Work for the community may be temporarily suspended by serious reasons of medical, familiar, professional, social or other order, but the period of execution of the sentence may not exceed 18 months.

2- The court revokes the penalty of work for the community and orders the enforcement of imprisonment penalty fixed in sentence if the agent, after the conviction:
a) intentionally puts himself in a condition that prevents him from working;
b) Refuses to work without just cause, or grossly infringes the duties resulting from the penalty to which he was sentenced; or
c) Commits a crime for which he is sentenced, and shows that the aims of the community work sentence were not able, thereby, to be achieved.

3 – The prescriptions in article 57 are correspondingly applicable.

4 – If, in cases stated in number 2, the convict has to be subjected to imprisonment, but had already executed work for the community, the prison penalty he is to fulfil shall be equitably deducted by the court.

5 – If the work for the community is considered satisfactory, the court may declare extinct the sentence of not less than seventy-two hours, as soon as two-thirds of the sentence is accomplished.

6 – If the agent is not able to execute the work to which he has been sentenced by a motive that is
not attributable to him, the court, according to what shows to be more suitable for the fulfilment of the punishment aims:
a) Substitutes the imprisonment penalty fixed in the sentence for a fine up to 120 days, the prescription in number 2 of article 44º being correspondingly applicable the stated; or
b) Suspends the imprisonment penalty fixed in judgment, for a period between 1 and 3 years, subjecting it, in the terms of articles 51 and 52, to the accomplishment of the appropriate duties or
rules of conduct.


Article 60
Admonition

1- If the agent ought to be sentenced to a fine of a measure not superior to 120 days, the court may limit itself to pronounce an admonition.

2- Admonition only takes place if the damage has been repaired and the court concludes that, doing so, the aims of punishment will be accomplished in an appropriate and sufficient way

3- As a rule, admonition will not be used if the agent, during the 3 years prior to the act, has been sentenced to whatever penalty, including admonition.

4- Admonition consists of a solemn oral censure made in session by the court to the agent.

BOOK I
GENERAL PART

TITLE III
JURIDICAL CONSEQUENCES OF THE ACT

CHAPTER IV
CHOICE AND DETERMINATION OF PENALTIES

SECTION I
GENERAL RULES

Article 70
Criterion for the choice of penalty

If depriving liberty and non-depriving liberty penalty are alternatively applicable to the crime, the court prefers the second whenever the execution of the latter is adequate and sufficient for the purpose of punishment.


Article 71
Determination of the penalty measure

1- The determination of the penalty measure is done according to the agent’s guilt and prevention needs, within the law’s defined limits.

2- On determining the concrete penalty, the court considers all circumstances that, not being elements of the type of crime, are in favour of the agent or against him, taking into consideration,
namely:
a) The degree of unlawfulness of the act, its form of execution and the seriousness of its consequences, as well as the degree of violation of the duties imposed on the agent;
b) The strength of the intent or of the negligence;
c) The feelings manifested on the perpetration of the crime and the aims or motives that determined it;
d) The agent’s personal situation and his economic condition;
e) The conduct prior to the act and after it, especially when the latter is aimed at repairing the consequences of the crime;
f) The lack of preparation to maintain a lawful conduct, manifested in the act, when that lack of preparation must be censured by the imposition of a penalty;

3- The reasons for the measure of the penalty are expressly mentioned in the sentence.


Article 72
Special mitigation of penalty

1- The court specially mitigates the penalty, apart from the cases expressly prescribed in the law, whenever there are circumstances previous or posterior to the crime, or contemporary to it, that diminishes the unlawfulness of the act, the guilt of the agent or the necessity of the penalty, in an accentuated manner.

2- For the purpose of the prescribed in the above number, the following circumstances will be considered, among others:
a) that the agent had acted under the influence of a serious threat, under the influence of someone he depends on, or to whom he owes obedience;
b) that the agent’s conduct had been determined by honourable motive, by strong solicitation or temptation from the victim himself, or unjust provocation or undeserved offence;
c) that there had been demonstrative acts of the agent’s sincere repentance, namely reparation of the damages up to where it had been possible for him;
d) that a long time had elapsed over the perpetration of the crime, the agent maintaining good conduct.

3- It may be taken into account only once the circumstance that, on its own or jointly with other circumstances, gives room simultaneously to a mitigation especially prescribed in the law and to the one prescribed under this article.


Article 73
Special mitigation terms

1- Whenever the special mitigation of the penalty takes place, the following occurs relatively to the limits of the applicable penalty:
a) The maximum limit of the imprisonment penalty is reduced by one third;
b) The minimum limit of the imprisonment penalty is reduced to one fifth if it is equal or superior to 3 years, and to the legal minimum if it is inferior;
c) The maximum limit of the fine penalty is reduced by one third and the minimum limit to the legal minimum;
d) If the maximum limit of the imprisonment penalty is not superior to 3 years, it may be replaced by a fine, inside the general limits.

2- The specially mitigated penalty that has been concretely fixed is susceptible of replacement in general terms, including suspension.


Article 74
Dispensation of penalty

1- When the crime is punishable with imprisonment not superior to 6 months, or only with a fine not superior to 120 days, the court may declare the defendant guilty without applying penalty if:
a) The unlawfulness of the act and the guilt of the agent are minute;
b) The damages have been repaired;
c) Reasons of prevention do not oppose to the dispensation of penalty.

2- If the judge has reasons to believe that the damage reparation is about to happen, he may adjourn the decision for a reconsideration of the case within 1 year, on a day which will be immediately fixed.

3- When another rule allows the dispensation of penalty on a facultative nature, this will only take place if the case fulfils the pre-requisites stated in the sub-headings of number one above.


SECTION II
RECIDIVISM

Article 75
Prerequisites

1- Whoever commits a crime of intent by himself or under any form of participation which should be punished with effective imprisonment superior to 6 months, and who after having been sentenced to an effective imprisonment penalty by a definitive decision, is punished as recidivist, if, according to the circumstances of the case, the agent should be blamed for the fact that the previous sentence or sentences didn’t serve as a sufficient warning against crime.

2- The previous crime for which the agent has been sentenced does not count for recidivism if, between its perpetration and that of the next crime, more than 5 years have elapsed; the time during which the agent has been subjected to a custodial procedure measure, penalty or security measure is not counted for that time-limit.

3- Sentences passed by foreign courts count for recidivism as stated in the above numbers, provided that the act constitutes a crime under Portuguese law.

4- Penalty prescription, amnesty, generic pardon and indult do not hinder the verification of recidivism.


Article 76
Effects

1- In case of recidivism, the minimum limit of the applicable penalty is increased by one third and the maximum limit remains unchanged. The Aggravation shall not exceed the measure of the most severe penalty applied in the previous sentences.

2- The rules concerning the relatively indeterminate sentence, when applicable, prevail over the rules for punishing recidivism.


SECTION III
PUNISHMENT OF CONCURRENT CRIMES AND OF CONTINUOUS CRIME

Article 77
Concurrence punishment rules

1- When someone has perpetrated several crimes before the sentence for any of them has become definite, he will be sentenced to a single penalty. For determination of the penalty, the acts and the personality of the agent will be jointly considered.

2- The applicable penalty has the sum of the penalties concretely applied to the various crimes as maximum limit, without exceeding 25 years in case of imprisonment and 900 days in case of fine; and as minimum limit the higher of the penalties concretely applied to the various crimes.

3- If the penalties applied to the concurrent crimes are some of imprisonment and some of fine, their different nature will be kept in the single penalty resulting from the application of the criteria settled in previous numbers.

4- Accessory penalties and security measures are always applied to the agent, even if prescribed by only one of the applicable rules.


Article 78
Supervenient knowledge of the concurrence

1- If, after a definite judgment, but before the respective penalty is fulfiled, ceased by prescription or extinct, it is known that the agent had perpetrated, before that judgment, another or other crimes, the rules of the previous article are applicable.

2- The stated in the above number is also applicable in case all the crimes had been separately object of definite judgments.

3- Accessory penalties and security measures applied by the previous judgment are kept, except when it is shown unnecessary in face of the new decision; if they are applicable only to the crime that is to be appreciated, they will only be decreed if they are still necessary in face of the previous decision.


Article 79
Punishment of continuous crime

Continuous crime is punishable with the penalty applicable to the most serious conduct that integrates the continuation.


SECTION IV DISCOUNT

Article 80
Procedural measures

1- Detention, preventive imprisonment and obligation to stay at home, suffered by the defendant in the process in which he is to be sentenced, are discounted in full in the enforcement of the imprisonment penalty imposed on him.

2- If the penalty applied is a fine, the detention, preventive imprisonment and obligation to stay at home are discounted at the rate of 1 day of deprivation of freedom for, at least, one day fine.


Article 81
Prior penalty

l. If the penalty imposed by decision of definite sentence is posteriously substituted for another, in this penalty the time of imprisonment that the agent has fulfilled previously must be deducted.

2. 1f the prior and the posterior penalties are of different nature, a deduction which seems equitable shall be made in the new penalty.


Article 82
Processual measure or penalty fulfilled in a foreign country

In terms of the previous articles, any processual measure or penalty that the agent has fulfilled abroad for the same fact, or facts, shall be deducted.


CHAPTER V
RELATIVELY UNDETERMINED PENALTY

SECTION I
DELINQUENTS BY TENDENCY

Article 83
Prerequisistes and effects

1. He who commits a intentional crime to which effective imprisonment of more than 2 years should be applied, and has previously committed 2 or more intentional crimes to each of them an effective imprisonment of more than 2 years has also been applied, or is applicable, shall be punished with a relatively undetermined penalty, whenever the joined valuation of the practised facts, or the agent’s personality, shows a continual tendency towards crime which persists at moment of condemnation.

2. The relatively undetermined penalty has a minimum duration of two thirds of the imprisonment penalty effectively applicable to the committed crime, and a maximum corresponding to this penalty, with 6 years added to it, not exceeding a total of 25 years.

3. Any other previous crime is not to be taken into consideration in reference to number 1, when between its practice and that of the next crime more than 5 years have elapsed; the period during which the agent has fulfilled legal procedure, prison penalty, or measures of security deprival of liberty, are not computed for this term.

4. In terms of the previous numbers, the facts judged abroad which have led to effective prison for more than two years, are taken into account, provided that the prison penalty for more than 2 years is applicable to them in Portuguese law.


Article 84
Other cases for applying the penalty

1. He who commits intentional crime to which effective prison is applied and has previously committed four or more intentional crimes, to each of which effective prison has been, or is applied, shall be punished to a relatively undetermined penalty, whenever the remaining presuppositions fixed in number 1 of the previous article occur.

2. The relatively undetermined penalty has a minimum duration corresponding to two thirds of the prison penalty effectively applied to the commission of the crime, and a maximum corresponding to this penalty, with four years added to it, not exceeding the total of 25 years.

3. The dispositions of number 3 of the same article are correspondingly applicable.

4. In terms of the previous numbers, the facts judged abroad which have led to effective prison are taken into consideration, provided that the prison penalty is in accordance with the Portuguese law.


Article 85
Restrictions

1. If the crimes are committed before the agent has completed 25 years of age, the dispositions of the articles 83 and 84 are only applicable if he has fulfilled a minimum of 1 year of imprisonment.

2. In case of the previous number, the maximum limit of the relatively undetermined penalty
corresponds to an addition of four or two years to the imprisonment for an effectively committed crime, in accordance with the prescriptions of number 3 of the article 83, or the article 84.

3. The time limit referred to in number 3 of the article 83 is 3 years, according to the prescriptions of this article.

Article 76
Sentencing
1. In the event of a conviction, the Trial Chamber shall consider the appropriate sentence to be imposed and shall take into account the evidence presented and submissions made during the trial that are relevant to the sentence.
2. Except where article 65 applies and before the completion of the trial, the Trial Chamber may on its own motion and shall, at the request of the Prosecutor or the accused, hold a further hearing to hear any additional evidence or submissions relevant to the sentence, in accordance with the Rules of Procedure and Evidence.
3. Where paragraph 2 applies, any representations under article 75 shall be heard during the further hearing referred to in paragraph 2 and, if necessary, during any additional hearing.
4. The sentence shall be pronounced in public and, wherever possible, in the presence of the accused.

Article 78
Determination of the sentence
1. In determining the sentence, the Court shall, in accordance with the Rules of Procedure and Evidence, take into account such factors as the gravity of the crime and the individual circumstances of the convicted person.
2. In imposing a sentence of imprisonment, the Court shall deduct the time, if any, previously spent in detention in accordance with an order of the Court. The Court may deduct any time otherwise spent in detention in connection with conduct underlying the crime.
3. When a person has been convicted of more than one crime, the Court shall pronounce a sentence for each crime and a joint sentence specifying the total period of imprisonment. This period shall be no less than the highest individual sentence pronounced and shall not exceed 30 years imprisonment or a sentence of life imprisonment in conformity with article 77, paragraph 1 (b).