Included in Title III of the Special Section of the Penal Code (“On crimes against cultural identity and personal integrity”), Article 240, under the heading “Discrimination and incitement to hate and violence”, is presented as follows:

“1 – Whosoever:

a) Founds or constitutes an organisation or develops organised propaganda activities inciting to or encouraging discrimination, hate or violence against a person or group of persons because of their race, colour, ethnic or national origin, ancestry, religion, sex, sexual orientation, gender identity or physical or mental disability; or

b) Takes part in or helps finance the organisation or the activities mentioned in the preceding sub-paragraph;
shall be punished with a prison sentence of one to eight years.

2 – Whosoever, publicly or by any mans used for dissemination, in particular through defence, denial or severe banalisation of crimes of genocide, war or against peace and humanity:

a) Provokes acts of violence against a person or group of persons because of their race, colour, ethnic or national origin, ancestry, religion, sex, sexual orientation, gender identity or physical or mental disability;

b) Slanders or insults a person or group of persons because of their race, colour, ethnic or national origin, ancestry, religion, sex, sexual orientation, gender identity or physical or mental disability;

c) Threatens a person or group of persons because of their race, colour, ethnic or national origin, ancestry, religion, sex, sexual orientation, gender identity or physical or mental disability; or

d) Incites to violence or hatred against a person or group of persons because of their race, colour, ethnic or national origin, ancestry, religion, sex, sexual orientation, gender identity or physical or mental disability;
shall be punished with a prison sentence of six months to five years”.

Under penalty of defeating the reason for the existence of this legislation, we must again enlarge the list of factors of discrimination and strengthen the legal concept of discriminatory behaviour as set out in the law which, while strictly observing the principle of typicity, does not include the Jews – it being enough to use the expression “ethnic or national origin”. The Jews, by birth or conversion, possess features that are typical of all peoples. Having been kept away from Israel for two thousand years, they hail from all nations and have all nationalities. There is little that is national, still less ethnic, about them. According to Jewish tradition, the Hebrews who fled from slavery in Egypt and the larger number of slaves from other nations who fled with them, underwent a “general conversion” over three thousand three hundred years ago on Mount Sinai. All of them, of many different ethnicities, formed the Jewish people. To give just one example, Zipporah, Moses’ wife, was a Midianite black-skinned Ethiopian woman.

The way to make sure that the Jews, one of the favourite targets of crimes of discrimination, are actually considered in Article 240 of the Penal Code, is to use the expression "ethnic, national or religious origin”, which will broaden the scope of protection of the norm. In this context, we hardly need to say that “religion” and “religious origin” have different meanings. This can be proved by the circumstance that many people change their religion or convert to a religion that is foreign to their family or community tradition.

In fact, the concept of Jew (or of Jews) is a traditional religious concept, of Halacha (Jewish religious law), and refers to the son of a Jewish mother or one who has converted according to the strict precepts of Jewish law. It is therefore important in this case to connect the words ethnic, religious and national. Ethnic (in the sense of the first “Hebrews” descended from Abraham, Isaac and Jacob); religious (in the sense of “Jews” who were raised on Mount Sinai, where the Torah was granted to Moses and the Hebrews were forever merged with the races of other nations into the “Jewish nation”); and national (in the sense that, after Mount Sinai, the “Jews” left for the land of Canaan, the old name of the region corresponding to the area of what is now the State of Israel).

Finally, it is important to include in this law the specific reference to “collective guilt” as a pretext for the crime of discrimination. National Socialism, the Inquisition and other movements that carried out massacres, mainly of Jews, were always based on a non-existence “collective guilt”. In the light of the principles of the core dignity of the human being and of equality, this imputation of collective guilt used to justify genocides, persecutions and discriminations is profoundly reprehensible. Express mention of such “collective guilt” is not purely redundant, it will strengthen the legislation and explain the nature and the meaning of the criminal practice.

Bearing in mind the reasons set out above, Article 240 of the Penal Code should be revised.

Full article in Portuguese: O crime de discriminação no Código Penal português