On November 25, the law approving the new criminal protection of illegally occupied properties came into force, introducing significant changes to the Penal Code (Article 215) and the Code of Criminal Procedure (Articles 200 and 204).

The legislative revision focuses on the crime of unlawful occupation of real estate, which now has enhanced criminal penalties. Among the main changes, we highlight:

• punishment for attempted crimes: attempted crimes are now expressly punishable by imprisonment of up to two years or a fine of up to 240 days, whenever the perpetrator invades or occupies another person’s real estate with the intention of exercising rights of ownership, possession, use, or easement not recognized by law, judgment, or administrative act; or diverts or dams water by means of violence or serious threats, without right, for the purpose of obtaining an illegitimate benefit for themselves or others.
• two aggravating circumstances of the criminal offense – i) the use of violence or serious threats and the incidence on property intended for own and permanent housing, with imprisonment of up to three years or a fine, recognizing the particular reprehensibility of conduct that simultaneously threatens personal safety and the inviolability of the home, values with constitutional and criminal dignity reinforced. ii) professional activity or activity with the intention of making a profit, the penalty is increased to imprisonment for one to four years.

These aggravating circumstances constitute a proportionate and differentiated criminal response, intended to deter systematic practices of misappropriation or exploitation of real estate, often associated with organized occupation networks or speculative activities, and reinforce the principle of effective protection of private property and legitimate possession, harmonizing the repressive function of criminal law with the need to safeguard public order and social peace.

The law also introduces a new coercive measure in Article 200 of the Code of Criminal Procedure, allowing the judge to impose on the defendant the obligation to immediately return the property to its owner, provided that:

• There is strong evidence of trespassing or occupation of another person’s property;
• There is strong evidence that the complainant is the owner of the property.

The ratio legis is related to the need to give immediate effect to possessory protection, avoiding the perpetuation of unlawful situations while criminal proceedings are ongoing, often for prolonged periods.

As for public housing properties used for residential purposes, in these cases the public agency responsible for filing complaints must first assess the socioeconomic conditions of the occupants and, when applicable, activate the social or housing response mechanisms provided for in the legislation and regulations in force.

The law also allows the same body to waive the filing of a complaint in the event of voluntary vacation of the property, reflecting a commitment to balance the criminal protection of public property and the protection of the right to housing, both enshrined in the Constitution of the Portuguese Republic.

In summary, the approval of the new criminal protection of illegally occupied properties represents a significant shift in Portuguese criminal policy in the area of property protection and legitimate possession, clearly responding to a growing social phenomenon and providing the system with agile mechanisms for the immediate restoration of legal possession and property rights, without neglecting the principles of human dignity and the social function of property.