According to article 71 of the Criminal Code, in determining the concrete measure for punishment, there are two main criteria: “the fault of the agent” and “the prevention requirements”.
As exemplified by Figueiredo Dias, “circumstances must be ascertained” as a function of the agent’s guilt of the requirements of prevention. Each circumstance has a sense connection with the guilt of the agent or with the needs of socialization or innocuousness of the agent. In the first case, the circumstance is relevant to the determination of the sentence because it aggravates or alleviates the guilt. In the second case, the circumstance is related to the determination of the sentence because it aggravates or alleviates the preventive needs of socialization or innocuousness of the agent “(Figueiredo Dias, Portuguese Criminal Law, The Legal Consequences of Crime, 1993: 248).
According to Anabela Miranda Rodrigues, “this is the judge aided by Article 72 No. 2 of the Penal Code, which, after establishing that he will, in determining the sentence, attend to all circumstances that are not part of the crime, In favor of or against the agent, enumerates in an exemplary way, some of the factors of measurement of the general penance.
Here, with concrete relevance in the subjudice case is the fact that “a lot of time has been spent on the practice of crime, keeping the agent good conduct”.
As we pointed out below, the facts go back to 2010 and are close to the end of the incarceration of the applicant, and after that date – the period that marks the 60 years of the accused – there is no news of the continuation of criminal proceedings; Formerly replaced by work habits, as expressed in the social report and in the facts found in the judgment under appeal.
On the other hand, as we know from the principle in dubio pro reu, as well as Paul Pinto de Albuquerque, in the contest of aggravating and mitigating circumstances, the most serious circumstance must work and, in relation to the established framework, successive mitigating circumstances “(Paulo Pinto de Albuquerque, Commentary of the Penal Code, Catholic University Editora, 2nd Edition, p. 272).
This means that in the case in point, and for the benefit of the accused in determining the concrete measure of punishment, and then in the decision to suspend the effective sentence of imprisonment, all the facts that benefit him must be cumulative (7 years have passed on practice Of the facts, having two professions, 67 years of age and being the pillar and patriarch of a large family); And that instead of facts that do not pay in their favor (in particular, criminal records and the various custodial sentences that have been suffered by virtue of practices that are not in accordance with the law) can only operate once.
It refers in this regard to the doctrine and jurisprudence in principle of the prohibition of double valuation to mean that circumstances already valued in the determination of the assumptions of criminal responsibility or partial measures can not again be considered for the purpose of determining the actual sentence or even the Options regarding the non-suspension of the single penalty (V. Paulo Pinto de Albuquerque, Commentary on the Penal Code, Catholic University Editora, 2nd Edition. P. 272. Cf. Judgment of the Supreme Court of 20/10/2016 in www.dgsi .pt).
According to Anabela Rodrigues, “guilt can only (and must) be considered at the moment in which it precedes that of the choice of sentence – that of determining the concrete measure of the prison sentence – and can not be considered To justify the non-application of a substitution sentence: such an attitude is taken only against prevention criteria (Anabela Rodrigues, Criteria for Choosing Substitute Penalties in the Portuguese Penal Code, 1988, pp. 24 et seq.).
These guidelines served as a basis for recent decisions of the High Courts, including the judgment of the Court of Appeal of Porto, 09/25/2013 (http://www.dgsi.pt/jtrp.nsf/56a6e7121657f91e80257cda00381fdf/cbbe5838c9aeb09680257bfe00471f9c? OpenDocument)
“In the choice-of-sentence operation, the substitution penalty is imposed when its material requirements are met, which requires that the special preventive reasons (lack of socialization of the accused) be weighed and that the” Minimum threshold of general prevention of defense of the legal order “. In other words, when it is in the stage of the choice of sentence (after the determination of the concrete measure of punishment), the court will consider the special prevention requirements that are felt in the concrete case and, if these are satisfied through the application of A penalty of substitution, can not fail to apply the penalty of substitution if it also meets the minimum requirements (which can not be waived) of general positive prevention. ”
In other words, it is unacceptable that the same aggravating circumstance can be valued twice.