The Framework of Criminal Law
Legislation on Bias-motivated Violence
| Bias-motivated Violent Crimes as Specific Offenses | Bias as an Express General Aggravating Factor | Bias as an Aggravating Factor in Specific Common Crimes |
| X |
Bias Types Covered by Provisions on Aggravating Circumstances
| Race/National Origin/Ethnicity | Religion | Sexual Orientation | Gender | Disability | Other |
| X | X | X | X |
The Criminal Code of Portugal does not contain any general penalty enhancement provisions for crimes committed with bias motivations as an aggravating circumstance. Article 71(2)(c) is a general sentencing provision that allows for the aims and motivations of the offender to be considered in sentencing, although there is no explicit reference to racist or other bias motives.
Bias as an Aggravating Factor in Specific Common Crimes
Articles of the Criminal Code relating to homicide, severe assault, and assault deal with bias motivations. Part 2(e) of Article 132 of the Criminal Code (aggravated homicide) stipulates that motives of racial, religious or political hatred are regarded as aggravating circumstances resulting in a heavier penalty.[1] As a result of amendments to the criminal code in September 2007, bias based on sexual orientation is now similarly considered an aggravating factor in those same crimes.[2] Whereas homicide is punishable by imprisonment for a period of between 8 to 16 years, aggravated homicide is punishable by imprisonment for a period of between 12 to 25 years.
Similarly, Article 146(2) makes reference to the same aggravating circumstances that can be applied to enhance the penalties in cases of assault (Article 143) and severe assault (Article 144). Whereas simple assault is punishable by fine or up to three years in prison, aggravated simple assault can be punished by up to four years in prison. Whereas severe assault is punishable by up to ten years in prison, aggravated severe assault can be punished by 3-12 years in prison.
In its Third Report on Portugal (2007), the European Commission against Racism and Intolerance (ECRI) notes that provisions in Article 132(2)(e) and 142(2) have been used infrequently, explaining that this is partly due to the fact that “the police tend not to give sufficient emphasis to the racist nature of offences, in some cases because the victims themselves fail to draw their attention to it. There is also a view that the police sometimes refuse to consider the racist aspect of an offence even when the victim or witnesses insist that it was racially motivated. Prosecutors, for their part, are said to be insufficiently aware of the potentially racist aspect of certain offences and so fail to target their investigations accordingly.”[3]
[1] OSCE/ODIHR, “Portugal: Hate Crimes,” Legislationline, available at: http://www.legislationline.org/?tid=218&jid=38&less=false; see also Criminal Code of Portugal, available at: http://www.unifr.ch/derechopenal/legislacion/pt/CPPortugal.pdf.
[2] FRA, “Thematic Legal Study on Homophobia and Discrimination on Grounds of Sexual Orientation (Portugal),” February 2008, http://fra.europa.eu/fra/material/pub/comparativestudy/FRA-hdgso-NR_PT.pdf.
[3] ECRI, “Third Report on Portugal,” 30 June 2006 made public on 13 February 2007, para. 12.