Opinion: a recent decision by a Portuguese court

From time to time, in Portugal, we are surprised by court decisions that stray from progress that has been made in recent years, in terms of the protection and promotion of the rights and interests of victims of crime.

Not long ago, the Lisbon Court of Appeal published a decision relating to a case of domestic violence: an 87-year-old man had been convicted, in the first instance, of abusing his 82-year-old wife and was given a prison sentence of 4 years and 4 months. Additionally, he was barred from contacting the victim for 5 years and was further obliged to attend a program on the prevention of domestic violence.

Some details contained in the Judgment of the Court of First Instance should be highlighted; this was not the first sentence given to the defendant. In 2021, he had been found guilty of domestic violence acts committed since 2016. Despite being prohibited from approaching the victim, as a result of the first conviction, the defendant continued to visit her house, beating her and threatening to kill her.

According to the 2022 sentence, while his acts confirmed his guilt, the defendant did not show any regret; the victim’s testimony was considered logical, spontaneous, lucid and, as such, credible. During the victim’s testimony, she expressed a deep fear of what might happen once the accused was released, he was then being held on remand. The victim found entering and leaving her house to be particularly stressful and dangerous as she would have her back to the elevator while she locked her door. At the end of the hearing, the victim admitted to having suicidal thoughts and was then receiving psychiatric support.

However, and having taken all this into consideration, what then was the decision of the Lisbon Court of Appeal when the defendant lodged an appeal? The court decided to put aside the prison sentence, which led to the immediate release of the accused.

This decision was based on three grounds: the first, of a general nature, being that the Portuguese penal system does not provide for elderly delinquents; no consideration is given as to whether age should be taken into account in cases of domestic violence. This applies to the provision of alternative penalties, namely placement of an offender in a residential environment rather than within a prison for the duration of the sentence.

We agree with the need to consider, in the future, legislative solutions – in terms of criminal sanctions – for elderly people who have committed crimes, not least because of the impact that an aging prison population has on the system’s management. However, currently, Portuguese criminal law does not offer any specific treatment for such situations, it is not up to the judges to replace the legislator and to cite grounds that are not supported by the legal framework.

Second plea: despite the fact that the first decision highlighted the real risk of harm to the victim, the Court of Appeal considered that the accused’s current physical condition indicated his deteriorating strength, which, over time, would progressively reduce any existing risk. This assessment was profoundly wrong: age and alleged physical difficulties did not prevent the defendant from mistreating his wife, these acts of violence did not take place 10 or 20 years ago, they are recent. Furthermore, to say that the risk will decrease progressively means that, in the meantime, the victim remains exposed to the danger of continued violence, not least because, as the court itself recognised, there is no chance of the accused respecting the prohibitions imposed on him.

Third foundation: the court’s censure of his acts, the threat of imprisonment, oversight of the additional penalties imposed, and social support to ensure a dignified old age were seen as appropriate punishment for his crimes.

Let me just say in this regard that it is a pity that the victim’s right to a dignified old age did not deserve equal solicitude! The court did not inform the victim of the defendant’s release, contrary to legal requirements. On his release, the criminal went immediately to the victim’s house, where he spent 5 days. Today, and despite the fact that he is no longer there, the victim locks herself in her home, ravaged by the fear that the aggressor will return at any moment.

It is a pity that judges appear to be so unaware of the impact and consequences of their decisions; perhaps their decisions would be better considered if they knew the effect they had on the victims.

Opinion written by:

Frederico Marques

Coordenador de Operações / Assessor Técnico da Direção
Chief Operations Officer / Senior Adviser

Associação Portuguesa de Apoio à Vítima
Portuguese Association for Victim Support