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.
Determination of sentence - national proceedings
EDIT.