Background

Until 31.12.2009, there were two pieces of legislation in our legal system that provided for the granting of financial support to victims of crime;

  • Decree-Law 423/91, of October 30, which established the system for granting compensation by the state to victims of violent crime, and;
  • Law 129/99, of August 20, which established the system for granting financial support to victims of domestic violence.

The regimes provided for therein were completely different, with the compensation to be granted to victims of violent crime having a completely different philosophy to the financial support to be granted to victims of the crime of domestic violence.

The legislator decided to repeal these two laws, replacing them with Law 104/09, of September 14, which came into force on January 1, 2010.

However, the differences or changes were minimal. Let's just say that all the legislator did was bring together in a single law a matter that had been divided into two separate laws.

As for the differences between the two regimes, these have remained intact. Thus, two completely autonomous and distinct regimes have been maintained, which have nothing to do with each other.

The philosophy behind the advance compensation to be granted to victims of violent crimes and victims of domestic violence is completely different, based on very different assumptions, being granted and paid at different times and requiring very different requirements to be met.

Let's take a look at the two schemes and their differences, and try to answer most of the questions we are asked in a simple and concise way.

1st SCHEME - Advance Compensation to be granted to Victims of Violent Crimes – Chapter II of Law 104/09, of September 14, articles 2 to 4

The legislator has provided for three different situations:

1st Situation: Direct victims of violent crime, i.e. those who actually suffered the crime, can benefit from this advance on compensation. In this case, victims can be compensated for both property damage and non-pecuniary damage suffered, in accordance with the provisions of paragraphs 1 and 2 of article 2 of Law 104/09, of September 14.

2nd Situation: Indirect victims, can also benefit, i.e. those who did not suffer the crime directly but were dependent on the direct victim at the time of the crime, such as children. Indirect victims can only apply for an advance on compensation in the event of the direct victim's death.
In this circumstance, only property damage is considered for the purpose of granting an advance on compensation, as provided for in Article 2(2) of Law 104/09, of September 14.
The maintenance system applies. In order for an indirect victim of a violent crime to be entitled to an advance on compensation, they must have been economically dependent on the direct victim at the time of the crime, or dependent on them in terms of maintenance, to use the expression in Article 2 of the Council of Europe's European Convention on Compensation to Victims of Violent Offenses, the document that inspired the building of support for victims of violent crimes throughout the European Union.

3rd Situation: Persons who voluntarily assist the victim or collaborate with the authorities in preventing the crime, pursuing or apprehending the offender may also apply for an advance on the compensation, provided that the requirements of Article 2(1)(a), (b) and (c) of Law 104/09, of September 14, are met, in accordance with the provisions of paragraph 4 of this same article.

It is defined in point a) of paragraph 2 of article 1 of Law 104/09, of September 14, which then refers us to points i) to l) of the Penal Procedure Code. According to what is established, the legislator defined that violent crimes include, among others, Terrorism, Homicide, Serious Bodily Harm, Rape, Child Sexual Abuse, Domestic Violence, or Serious Physical Injuries resulting from a Robbery.

The following conditions must be met:

  • You have been the victim of a violent crime, in accordance with Article 2(1) of Law 104/09, of September 14th.
  • The crime took place in Portuguese territory, in accordance with Article 2(1) of Law 104/09, of September 14.
  • The crime caused the victim to be temporarily unable to work for at least 30 days or to die - Article 2(1)(a) of Law 104/09, of September 14.
  • The crime has caused serious disruption to the victim's standard of living and considerable disruption to their quality of life – Article 2(1)(b) of Law 104/09, of September 14, and these two requirements are cumulative.
  • Not having obtained compensation for the damage suffered elsewhere - either from the aggressor or through their own insurance - Article 2(1)(c) of Law 104/09, of September 14.
  • The exception clauses provided for in Article 3 of Law 104/09, of September 14, do not apply to the victim, namely that the victim's behavior before, during and after the crime is neither contrary to the sense of public order nor to the sense of justice, as provided for in paragraph 1 of this Article 3, and according to the provisions of paragraph 2 of this same article, this law does not apply to cases in which the damage results from or is caused by a land motor vehicle, as well as when the rules on accidents in service or at work are applied.

The advance payment of compensation to victims of violent crimes can only be made after the trial of the criminal case, after the sentence has become final and after it has been established that it is not possible for the victim to receive the compensation that the aggressor was ordered to pay - execution of sentence - or from any other source - article 4 of Law 104/09, of September 14.
The advance on the compensation is paid in a single installment, always by bank transfer to an account held by the victim - Article 2 of Law 104/09, of September 14.
The amount of compensation is reached by weighing up a judgment of fairness, and is always part of the compensation the aggressor has been sentenced to - article 4 of Law 104/09, of September 14.

2nd REGIME - Compensation for Victims of Domestic Violence – Chapter III of Law 104/09, of September 14, articles 5 and 6

Yes. As already mentioned, the definition of Violent Crime can be found in Article 1(2)(a) of Law 104/09, of September 14, which in turn refers us to Article 1(j) and (l) of the Code of Criminal Procedure. Thus, violent crime is considered to be conduct that is intentionally directed against life, physical integrity, personal freedom, sexual freedom and self-determination or public authority and is punishable by a maximum prison sentence of five years or more. Since the maximum sentence for the crime of domestic violence is set at 5 years in prison in article 152 of the Penal Code, this means that domestic violence is also considered a violent crime for the purposes of this law.

This stems from the dual protection that the legislator wanted to give this type of victim, which is why he created two support models:

  • The first, is set out in Chapter III, Articles 5 and 6, and must be activated at the time of the family breakdown. In this case, the victim can receive financial support in the form of a monthly payment, which cannot exceed the value of the guaranteed minimum wage, for a period of 6 months, which can be extended for the same period. To benefit from this support, the victim must meet three requirements:
  1. They must have been the victim of a crime of domestic violence;
  2. The crime occurred in Portugal;
  3. And because of the crime suffered, have been left in a situation of Serious Economic Need.

The requirements set out in points a) and b) do not raise any doubts as to their interpretation.

As for the requirement set out in point c), the issue has raised many doubts, especially for victims and some Victim Support Associations, but the legal text is considered to be quite clear. The situation of Serious Economic Need that the victim is experiencing must necessarily be a result of the crime of Domestic Violence of which they were a victim.

In many cases, this situation - severe economic hardship - has nothing to do with the crime of domestic violence, although it can be one of the main causes of family conflicts. In many cases, when the crime of domestic violence occurred, the family had already been in serious financial difficulties for a long time.

  • On a second level, victims of the crime of domestic violence, at the end of the criminal proceedings relating to the crime in question, can apply for an advance on compensation under the provisions of Chapter II, Articles 2, 3 and 4.

In this case, and in order to be entitled to this support, they must meet not the requirements for victims of the crime of domestic violence mentioned above, but the requirements set out in Article 2(1)(a), (b) and (c) of the same law, which are the requirements applicable to violent crime.

Victims of the crime of domestic violence, as provided for in article 152 of the Penal Code - article 5 of Law 104/09, of September 14.

The following conditions must be met:

  • You must have been the victim of a crime of Domestic Violence, Article 5(1) of Law 104/09, of September 14th;
  • The crime must have occurred in Portuguese territory, paragraph a) of no. 1 of article 5 of Law 104/09, of September 14;
  • As a result of the crime, the victim must be in a situation of serious economic hardship - Article 5(1)(b) of Law 104/09, of September 14.
ATTENTION: there must be a causal link between the victim's situation of serious economic hardship and the crime of domestic violence she has suffered. The situation of serious economic hardship must be a consequence of the crime of domestic violence suffered by the applicant/victim.
At the moment of family breakdown, because it is at this point that the victims find themselves in an extremely fragile situation, often without any kind of income. It is here, at this stage, that the victims of the crime of domestic violence may be in a situation of Serious Economic Need, and it is at this stage that we can attribute this situation of Economic Need to the crime suffered. This support can be granted for a period of 6 months, and can be extended in exceptional situations for a further 6 months. It can thus be seen that 12 months was the period of time that the legislator considered to be the period in which Serious Economic Need can be attributed to the crime suffered, i.e. the time that a victim needs to reorganize their life and find a new life project.
The advance payment of compensation to victims of the crime of domestic violence is always made in six monthly installments, and this period may be extended for a further six months, provided that the victim's situation of Serious Economic Need has not changed - Article 6(2) of Law 104/09, of September 14.In exceptional and duly justified situations, payment may be made:
  1. By check;
  2. All at once.
The legislator did not specifically define the concept of Severe Economic Need.
However, it did make it clear that the support to be granted by the Commission, in the form of a monthly rent, paid over six months, cannot exceed the value of the Guaranteed Minimum Monthly Wage.
  • The value of the Guaranteed Minimum Monthly Wage (RMMG) is defined by Decree-Law no. 112/2024, of December 19, and since 01.01.2025 it has been €870.
  • The RMMG is commonly known as the National Minimum Wage (SMN).
  • This means that, for the purposes of Chapter III of Law no. 104/2009, of September 14, all people who have a monthly income of less than the RMMG are in a situation of Serious Economic Need. Those with incomes greater than or equal to this RMMG are not in this situation, and are therefore not entitled to an advance on compensation.
  • The Commission also believes that, for the legislator, this index has nothing to do with the expenses that a given family has, but only with its income.
  • The calculation is based on all the income received by the household, excluding the family allowance for children and young people.
  • Thus, if the applicant's household has any kind of income or social benefits below the value of the RMMG, they may be entitled to the difference between what they earn and the indicative value of the SMN, with this analysis underlying a judgment of fairness.

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