Murder in Portuguese law
The Portuguese Penal Code was adopted in 1982 by Decree-Law no. 400/82, of September 23, entering into force on January 1, 1983. It has seen multiple amendments, but has been subject of two major reforms in 1995, by Decree-Law no. 48/95, of March 15, and in 2007, by Law no. 59/2007. The Penal Code devotes a chapter on “crimes against human life”, where murder is included; despite that other crimes, in their aggravated form, may be considered, in other countries, to be included in murder.
Murder may also be found in special legislation, namely in the Code of Military Justice, adopted in 2003 by Law no. 100/2003, of November 15, and in the Penal and Disciplinary Code of the Merchant Navy, adopted in 1940 by Decree-Law no. 33252/43, of November 20.
The Portuguese Constitution expressly forbids the death penalty and life imprisonment. 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.
Homicide
Homicide is defined in article 131 of the Penal Code, being the first crime to appear on the Code, simply stating that “whoever kills another person is punished with imprisonment from 8 to 16 years”.Following the general crime of homicide, setting the elements of the fact for the following crime, Qualified Homicide, in article 132 § 1, aggravating the punishment in cases where “the death is produced in circumstances revealing a special unlawfulness and perversity” from 12 to 25 years. Article 132 § 2 defines which cases are susceptible to reveal such special unlawfulness and perversity, namely:
These circumstances are only susceptible to qualify the homicide to a more serious punishment, not functioning automatically, as they are simply “pattern-examples”. Other circumstances that are subsumed to those “pattern-examples” may also be susceptible to qualify homicide, however any other circumstances revealing a special unlawfulness and perversity that may not be subsumed to those “pattern-examples” may not be construed to qualify homicide, with such an interpretation being unconstitutional according to the Constitutional Court.
Following qualified homicide, the Penal Code defines other cases of intentional homicide with a lesser degree of guiltiness: Privileged homicide - 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 is imprisonment from 1 to 5 years.Homicide by request - when the murder is carried out at the serious, constant and explicit request of the victim. The punishment is imprisonment from 1 month to 3 years, and that is not punishable if done by the means established in Law no. 22/2023, of May 25.Inciting or assisting suicide - if someone incites or assists another person to commit suicide, he or she is sentenced to prison for 1 month 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 - when the mother, under the disturbing influence of delivering the baby, commits murder while delivering it, or immediately afterwards. The punishment is 1 to 5 years imprisonment.
According to the Code of Penal Procedure cases related to intentional homicide are tried by a panel of three judges, or by a jury, when the possible punishment exceeds 8 years of imprisonment and the jury is requested by the arguido, prosecution, or the assisting party.
Negligent Homicide
Negligent Homicide, is punishable with a prison term of no less than 1 month and no longer than 3 years, or a fine. If the death is caused by gross negligence the penalty the prison term is of 1 month to 5 years.Additionally, unintentionally causing someone's death while committing a crime other than homicide may be an aggravating factor of that crime, called “aggravation by result”, with examples ranging from abandonment resulting in death and 3 , punished with imprisonment from 3 to 10 years of imprisonment, bodily harm aggravated by death is punished with imprisonment from 2 years and 8 months to 13 years and 4 months and robbery aggravated by death punished with imprisonment from 8 to 16 years.