I. General
II. The case of minors under the age of 16
III. The case of minors under the age of 12
IV. The case of minors (and adults) between the ages of 16 and 21 (Young Adults)
V. Final note
I. General
The Principle of Legality, enshrined in Article 29(1) of the Criminal Code and set out in Article 1(1) of the Criminal Code, states, in short, that in order for a crime to be committed and, consequently, a penalty to be imposed, it must be preceded by a written, strict and certain law (nullum crimen, nulla poene sine lege).
[“No one may be sentenced for a crime except by virtue of a previous law declaring the action or omission punishable (...)”; and “Only the fact described and declared punishable by a law prior to the time of its commission may be punished for a crime”, respectively].
It turns out that, despite the diverse range of conducts whose objective element of wrongdoing can be included in a type of wrongdoing punishable as a crime, criminal intervention will vary, among other factors, according to the age of the perpetrator.
Thus, Article 19 of the Criminal Code states that “Minors under the age of 16 are incapable of being punished”.
Since imputability is a conditio sine qua non for making a judgment on the guilt of the perpetrator, imputability is, contrario sensu, an obstacle to proving it, which in turn means that no penalty can be imposed.
And this is because, since Article 40(2) of the Criminal Code states that “In no case may the penalty exceed the extent of the guilt”, no penalty can necessarily be imposed without guilt.
II. The case of minors under the age of 16
Once the objective elements of the crime have been verified, if the perpetrator is a minor under the age of 16, the Educational Guardianship Law (Law no. 166/99, of September 14) must be applied.
Article 1 of the E.T.L. states that “The commission of a crime by a minor between the ages of 12 and 16 gives rise to the application of an educational guardianship measure in accordance with the provisions of this law”.
Here, and contrary to what happens in the case of penalties - which are aimed at “protecting legal assets and reintegrating the perpetrator into society” (cf. no. 1 of art. 40 of the Criminal Code in fine) - the applicable educational guardianship measures are aimed at “educating minors in the law and integrating them into community life in a dignified and responsible manner” (cf. no. 1 of art. 2 of the L.T.E.).
According to Article 4(1) of the L.T.E., the guardianship measures applicable are as follows:
a) Admonition;
b) Deprivation of the right to drive mopeds or to obtain permission to drive mopeds;
c) Making reparation to the offender;
d) The performance of economic services or tasks in favor of the community;
e) The imposition of rules of conduct;
f) The imposition of obligations;
g) Attendance at training programs;
h) Educational support;
i) Internment in an educational center.
In turn, in accordance with the provisions of Article 5 of the L.T.E. (see II. above), the execution of these measures may be extended until the young person reaches the age of 21.
III. The case of minors under the age of 12
In the case of minors under the age of 12, we may be dealing with a situation that could lead to the initiation of a promotion and protection procedure, within the scope of the Protection of Children and Young People in Danger Law (Law no. 147/99, of September 1st), which aims to “promote the rights and protection of children and young people in danger, in order to guarantee their well-being and integral development” (see art. 1 of the LPCJP).
To this end, Article 3(1) of the LPCJP states that, in addition, “Intervention to promote the rights and protection of children and young people in danger [of their safety, health, training, education or development] takes place when (...) the danger is the result of an action or omission (...) by the child or young person themselves, which they [parents, legal representative or de facto guardian] do not oppose in an appropriate way to remove”.
In concrete terms, Article 3(2) states that a child or young person is considered to be in danger when they “engage in behavior or activities or consumption that seriously affect their health, safety, training, education or development without their parents, legal representative or guardian being able to adequately prevent them from doing so”.
IV. The case of minors (and adults) aged between 16 and 21 (Young Adults)
Although the age of imputability is 16, Article 9 of the Criminal Code states that “Rules laid down in special legislation shall apply to those over 16 and under 21”.
The special legislation referred to in this article corresponds to Decree-Law no. 401/82, of September 23, known as the Legal Regime Applicable to Young Offenders.
Among the peculiarities inherent in this regime, we highlight the fact that, instead of applying the penalties provided for in the respective legislation, in the case of crimes that carry a penalty of less than two years, corrective measures can be applied instead, which include admonishment; imposition of certain obligations, fines and internment in detention centers. (cfr. art. 5 and 6 of the aforementioned Decree-Law), as well as the fact that, if a prison sentence is to be imposed, the sentence may be especially attenuated if this results in advantages for the social reintegration of the convicted young person - for which the Court must investigate of its own motion and assess the respective feasibility, as this is a power-duty.
V. Final note:
Under the terms of Article 64(1)(d) of the Criminal Procedure Code, the presence of a defender is compulsory in all procedural acts, with the exception of the constitution of a R.I.T., whenever the defendant is under 21 years of age.
[see articles 57 to 59 of the C.P.P. regarding its constitution].
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