Murder (Portuguese law)

Last updated July 05, 2022

The Portuguese Penal Code^[1] was adopted in 1982 and has been revised on several occasions, most recently in 2007. It devotes a whole chapter on "crimes against human life". In fact, the very first crime addressed on that code is murder.

The Portuguese Constitution (adopted in 1976) expressly forbids the death penalty (art. 24, § 2) and life imprisonment (art. 30, § 1). Additionally, since 1997, the Constitution does not allow the extradition of anyone who would be subject to any of those two forms of punishment at the requesting country. Unless binding assurances are given that the suspect will not be sentenced to either death penalty or life imprisonment, the extradition must be rejected.

The Penal Code states that no person may be sentenced to a prison term longer than 25 years. A multiple murderer - no matter how many homicides committed - will not serve more than 25 years in prison. Likewise, in the case murder is committed in addition to other felonies, the defendant will be sentenced to a single prison term, for a period no longer than 25 years, encompassing the applicable terms for each crime committed.

According to the Portuguese Penal Code, only very rarely will a sentence of less than 5-years imprisonment be enforced. In fact, article 75, § 1, states that if an offence is punishable by a prison term or another non-detentive form of punishment, the court should opt for the non-detentive punishment "if this punishment will satisfy adequately the objectives of the criminal law."

Therefore, someone convicted to up to 5 years in prison will be put on probation or (if the sentence if for less than 3 years) will simply have the prison sentence suspended. The convicted felon will serve fully the prison term if they commit another intentional crime during the period of suspension or probation. Probation or term-suspension usually will only be denied in the case of criminals with very long criminal records.

Homicide

Intentional murder, or homicide , is split into two categories, much like the American and Canadian classification of murder in the first degree and murder in the second degree discussed above, except that the first and second-degree rule is not used in the country.

Homicide, or wilful and intentional murder (art. 131 of the Penal Code), is punishable with a prison sentence of no less than 8 years and no longer than 16 years.

Aggravated homicide (art. 132 of the Penal Code) is considered any wilful and intentional act in which death is provoked under particularly censurable or malicious circumstances, and is punishable with a prison term of no less than 12 and no longer than 25 years.

The following circumstances are adequate to constitute a case of aggravated homicide:

a) When the murderer is a descendant or an ascendant, either by blood or adoption, of the victim.

b) When the victim is the spouse, former spouse, or person of the same or different sex with whom the felon had a marital relationship, even if not a member of the same household, or the other parent of the son or daughter of the felon.

c) When the victim is especially defenceless, due to his/her age, handicap, illness or pregnancy.

d) When the murder employs torture or other act of cruelty to enhance the victim's sufferance.

e) When the murder is determined by greed, by the pleasure of causing death or suffering, for personal enjoyment or sexual gratification or any other futile motive.

f) When the murder is determined by racial, religious or political hatred or motivated by the colour, ethnical or national origin, sex or the sexual orientation of the victim.

g) When the murder takes place in order to prepare, facilitate, execute or dissimulate another crime, or to facilitate the escape from the authorities.

h) When the act is carried out in conjunction with, at least, another two people or when an especially dangerous mean is used to cause death.

i) When poison or any other insidious mean is used to cause death.

j) When the intent to commit murder has persisted for longer than 24 hours.

l) When the victim is the holder of public office, a docent, a minister of any religious cult, a judge or referee of any federated sport, and the act is related and caused by the exercise of said functions.

m) When the murderer is a public servant (e.g. a police officer) and the act takes place with serious abuse of authority.

Other than homicide and aggravated homicide, the Penal Code also has provisions for other forms of intentionally and unlawfully causing someone's death:

Privileged homicide (art. 133) - when the murder takes place under an understandable violent emotion, compassion, despair or other socially or morally relevant motive, such as to significantly diminish the murderer's degree of guilt. Punishment in this case is prison for 1 to 5 years.
Homicide by request (art. 134) - when the murder is carried out at the serious, constant and explicit request of the victim. Punishment is prison for 6 months to 3 years.
Inciting or assisting suicide (art. 135) - if someone incites or assists another person to commit suicide, he or she is sentenced to prison for 6 months to 3 years. The punishment is increased to a prison term of 1 to 5 year, in the case the victim is under 16 years old or has, in any way, their capacity impaired.
Infanticide (art. 136) - when the mother, under the disturbing influence of delivering the baby, commits murder while delivering it, or immediately afterwards. Punishment is 1 to 5 years imprisonment.

Manslaughter

Manslaughter, which art. 136 of the Penal Code refers to as homicide caused by negligence, is punishable with a prison term of no less than 6 months and no longer than 3 years, or a fine. If the death is caused by gross negligence the penalty the prison term is of 6 months to 5 years.

Additionally, unintentionally causing someone's death while committing a crime other than homicide is an aggravating factor in the determination of the punishment applicable to that specific crime. For example, if the crime of abandonment (exposing a defenceless person to a situation in which he or she will not to be able to cope with, therefore causing harm to the victim) results in the victim's death, the punishment is 3 to 10 years imprisonment, whereas the normal penalty would be 1 to 5 years. In another example, aggravated assault resulting in the death of the victim is punishable with 3 to 13 years imprisonment, whereas the usual penalty would be 2 to 10 years.

Conditional liberty

Inmates are usually not required to serve fully their prison terms. The Penal Code allows for the possibility of releasing them on conditional liberty ("liberdade condicional"), or parole.

Parole is granted once one-half of the term has been served if both the following requirements are met:

One would reasonably expect the inmate, given the circumstances of their life, previous conduct, personality and evolution during incarceration, to behave in a socially responsible way without committing crimes, if released.
The release of the convict will not endanger the public order nor aggravate the community.

If the second requirement is not met (which would be the case when the particular crime has cause huge uproar in the community), the inmate will be released once two-thirds of the prison term have been served, as long as the inmate is reasonably expected to behave in a socially responsible way without committing crimes, if released.

Inmates not expected to behave in a socially responsible way are released once five sixths of the prison terms have been served, unless the inmate refuses to be released.

Parole last for the remaining period of the unserved prison term, but no longer than 5 years. Once the period of parole is fully served in a satisfactory manner, the remaining unserved prison sentence is declared void.

Status of convicts and felons

Convicts and felons may not suffer any effect from their criminal conviction other than deprivation of liberty for the period of incarceration, unless the sentence specifically establishes other effects in a direct and reasonable relationship with the offence committed. Convicts do not lose any right or entitlement due to their conviction, namely political rights. In fact, on election day polling stations are set up at the major prison establishments so that inmates may exercise their right to vote, if they so wish.

Any criminal conviction registered on the felon's criminal record is stricken after a certain period of time, depending on the gravity of the offence. In the case of murder, this fact would be stricken from the murderer's criminal record once 15 years have elapsed from fully serving their sentence without committing any other offence.

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A felony is traditionally considered a crime of high seriousness, whereas a misdemeanor is regarded as less serious. The term "felony" originated from English common law to describe an offense that resulted in the confiscation of a convicted person's land and goods, to which additional punishments including capital punishment could be added; other crimes were called misdemeanors. Following conviction of a felony in a court of law, a person may be described as a felon or a convicted felon.

Life imprisonment is any sentence of imprisonment for a crime under which convicted people are to remain in prison for the rest of their natural lives or indefinitely until pardoned, paroled, or otherwise commuted to a fixed term. Crimes for which, in some countries, a person could receive this sentence include murder, torture, terrorism, child abuse resulting in death, rape, espionage, treason, drug trafficking, drug possession, human trafficking, severe fraud and financial crimes, aggravated criminal damage, arson, kidnapping, burglary, and robbery, piracy, aircraft hijacking, and genocide, crimes against humanity, war crimes or any three felonies in case of three-strikes law. Life imprisonment can also be imposed, in certain countries, for traffic offences causing death. Life imprisonment is not used in all countries; Portugal was the first country to abolish life imprisonment, in 1885.

Capital murder was a statutory offence of aggravated murder in Great Britain, and Northern Ireland, and the Republic of Ireland, which was later adopted as a legal provision to define certain forms of aggravated murder in the United States. In some parts of the US, this term still defines the category of murder for which the perpetrator is eligible for the death penalty. Some jurisdictions that provide for death as a possible punishment for murder, such as California, do not have a specific statute creating or defining a crime known as capital murder; instead, death is one of the possible sentences for certain kinds of murder. In these cases, "capital murder" is not a phrase used in the legal system but may still be used by others such as the media.

The Penal Code of Singapore sets out general principles of the criminal law of Singapore, as well as the elements and penalties of general criminal offences such as assault, criminal intimidation, mischief, grievous hurt, theft, extortion, sex crimes and cheating. The Penal Code does not define and list exhaustively all the criminal offences applicable in Singapore – a large number of these are created by other statutes such as the Arms Offences Act, Kidnapping Act, Misuse of Drugs Act and Vandalism Act.

In Denmark manddrab (manslaughter) is the term used by the Danish penalty law to describe the act of intentionally killing another person. No distinction between manslaughter and murder exists. The penalty goes from a minimum of five years to imprisonment for life. The standard punishment for manslaughter - i.e. where there are neither aggravating or mitigating circumstances - is 12 years imprisonment.

Under the German penal code, Strafgesetzbuch, there are two sections relating to murder:

Israel had 173 murders in 2004, compared to 147 murders in 2000.

By Italian law, murder is regulated by articles 575–582, 584–585, and 589 of the Codice Penale.

Under Dutch law, moord (murder) is the intentional and premeditated killing of another person. Murder is punishable by a maximum sentence of life imprisonment, which is the longest prison sentence the law will allow for. Unlike in most other European countries, there is no possibility for parole for those sentenced to life in the Netherlands. It is one of the few countries in Europe where life imprisonment actually lasts for the remainder of the life of the convicted person, unless the sentence is commuted or pardoned by the Sovereign of the Netherlands. However, this rarely happens and few appeals to the King for clemency have ever been successful.

According to the Romanian penal code, the maximum punishment a person can get for the unlawful killing of another is life imprisonment.

In Sweden, the following degrees of murder apply:

In Switzerland, articles 111 to 117 of the Swiss Criminal Code detail the various scenarios in which the killing of another person is punishable. Articles 112 to 117 are leges speciales to article 111, meaning that when the conditions of one of the latter are met, article 111 will not be invoked.

In the United States, the law for murder varies by jurisdiction. In most US jurisdictions there is a hierarchy of acts, known collectively as homicide, of which first-degree murder and felony murder are the most serious, followed by second-degree murder and, in a few states, third-degree murder, followed by voluntary manslaughter and involuntary manslaughter which are not as serious, followed by reckless homicide and negligent homicide which are the least serious, and ending finally in justifiable homicide, which is not a crime. However, because there are at least 52 relevant jurisdictions, each with its own criminal code, this is a considerable simplification.

Life imprisonment in Turkey is a legal form of punishment and the most severe form of punishment. In most cases life imprisonment replaced capital punishment. Law 4771 of 3 August 2002 abolished the death penalty for peace time and replaced capital punishment with life imprisonment for 17 provisions of the Turkish Penal Code. Law 5218 of 14 July 2004 abolished the death penalty completely. This law provided that in some 40 provisions of the Turkish Penal Code and other laws such as the Law on Forests the death penalty was replaced by aggravated life imprisonment.

Articles 108 through 108-C of the Penal Code of Peru define crimes similar to those known as murder in Anglophone countries. The term asesinato ("murder") is no longer used in the Penal Code since 2014.

Responsibility for criminal law and criminal justice in the United States is shared between the states and the federal government.

Life imprisonment in China is legal for a variety of crimes. It is an indeterminate punishment, is the second most serious punishment in China, and may last for the remainder of the convict's life. Those sentenced to life imprisonment are eligible for parole after serving 13 years of the original sentence.

Capital punishment in Delaware was abolished after being declared unconstitutional by the Delaware Supreme Court on August 2, 2016. The ruling retroactively applies to earlier death sentences, and remaining Delaware death row inmates had their sentences commuted to life imprisonment. Despite this, the capital statute for first-degree murder under Title 11, Chapter 42, Section 09, of the Delaware Code has yet to be repealed, though it is unenforceable.

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References

↑ http://www.portolegal.com/CPENAL.htm Código Penal (in Portuguese)

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[1] ttp://www.portolegal.com/CPENAL.htm Código Penal (in Portuguese)

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