Analyzes the compulsory nature of the psychiatric examination provided for in Article 4(5) of Law 133/2009, of September 17, for the purpose of provisionally canceling the criminal record of a conviction for crimes against sexual freedom and self-determination.
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For the purposes of the provisional cancellation of decisions that must be included in the criminal record certificate, article 12 of Law no. 37/2015, of May 5, states that
“Without prejudice to the provisions of Law no. 113/2009, of September 17, if any of the purposes for which the certificate requested under article 10(5) and (6) is intended are at stake, the sentencing court may provisionally cancel the certificate”. The sentencing court may order the total or partial cancellation of the decisions that should have been included in the certificate, provided that: a) the sentences imposed have already been extinguished; b) the person concerned has behaved in such a way that it is reasonable to assume that they have been rehabilitated; and c) the person concerned has fulfilled the obligation to compensate the offender, justified its extinction by any legal means or proved the impossibility of fulfilling it."
Paragraphs 5 and 6 of Article 10, referred to in Article 12, concern criminal record certificates requested by natural persons for the purposes of public or private employment or for the exercise of a profession or activity in Portugal, and criminal record certificates requested by natural persons for the exercise of any profession or activity for the exercise of which the total or partial absence of a criminal record or the assessment of the person's suitability is legally required, or which are requested for any other purpose.
In relation to crimes against sexual freedom and self-determination, Law no. 113/2009, of September 17, to which the aforementioned article 12 of Law no. 37/2015, of May 5, refers.
Under the terms of Article 2(1) of Law 113/2009 of 17 September, “When recruiting for public or private professions, jobs, functions or activities, even if unpaid, the exercise of which involves regular contact with minors, the recruiting entity is obliged to ask the candidate to present a criminal record certificate and to consider the information contained in the certificate when assessing the candidate's suitability to perform the duties”.
These certificates must state that they are for the performance of duties involving regular contact with minors and must also contain convictions for crimes under Chapter V of Title I of Book II of the Penal Code, as well as decisions imposing ancillary penalties under the terms of Article 69-B(1), Article 69-C and Article 152 of the Penal Code, or security measures prohibiting the activity;
Article 4(4) of the aforementioned law stipulates that “where the issue of a criminal record certificate required for the purposes set out in Article 2 of this law is at issue, the Court for the Execution of Sentences may order, at the request of the holder, that convictions set out in paragraph 1 of this law not be transcribed in a criminal record certificate required for the purposes set out in Article 1 of this law, provided that they have already been issued. This can be done if it is reasonable to expect that the holder will lead his or her life without committing crimes of the same kind again, and the danger to the safety and well-being of minors that could arise from the exercise of the profession, job, function or activity to be exercised is appreciably small."
Paragrph 5 of the aforementioned article 4 stipulates that “it shall always be preceded by psychiatric expertise, with the intervention of three specialists, with a view to assessing the applicant's rehabilitation.”
Therefore, and in principle, in relation to crimes against sexual freedom and self-determination, the provisional cancellation of the decision can be determined provided that
a) the main sentence and any ancillary sentence imposed have already been extinguished (which implies the expiry of 7 years),
b) it is reasonable to expect that the holder will lead his or her life without committing crimes of the same kind again,
c) the danger to the safety and well-being of minors that could arise from the exercise of the profession, job, function or activity to be exercised is appreciably small;
d) the person concerned has behaved in such a way that it is reasonable to assume that he or she is re-adapted;
e) the person concerned has complied with the obligation to compensate the injured party, justified its extinction by any legal means or proved the impossibility of their behavior.
f) This decision is preceded by psychiatric expertise, with the intervention of three specialists, with a view to assessing the applicant's rehabilitation.
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In this case,
The Defendant was convicted of the crime of sexual harassment, pursuant to article 170 of the Penal Code, and sentenced to a fine of 70 days at a daily rate of €12.00.
Subsequently, in order to work as a swimming coach for athletes between the ages of 14 and 20, the Defendant requested, under the provisions of art. 229 of the Code of Execution of Sentences and Measures of Deprivation of Liberty, the provisional cancellation of the criminal record of the respective sentence.
As stated in the aforementioned judgment, “The Court ordered, of its own motion, that a social report be drawn up to assess the social and employment background of Applicant AA. It also considered [after refusing, on the grounds of unconstitutionality, the application of the normative criterion extracted from article 4, paragraphs 3 and 5 of Law no. 113/2009, of September 17, to the effect that it was imperative to carry out the evidentiary diligence provided for therein for the purposes of canceling any conviction for a crime provided for in articles 152 and 152-A and in chapter V of title V of the Criminal Code]. º-A and Chapter V of Title I of Book II of the Penal Code] that there was no justification for carrying out a psychiatric examination of the AA Applicant, given the fact that the crime committed was “sexual immorality, punishable by a fine, in which the victim was of legal age and the commission of which does not denote any apparent personality disorder”.
As such, the court ordered that the sentence in question be canceled without the expert opinion referred to in Article 4(5) of Law 113/2009, of September 17, being carried out.
Disgruntled, the Public Prosecutor's Office appealed to the Coimbra Court of Appeal, arguing that the Defendant had to undergo a psychiatric examination, to be carried out by three specialists, as a sine qua non condition for the cancellation of his criminal record.
The Coimbra Court of Appeal ruled that,
“the compulsory psychiatric examination of distinct criminal realities such as sexual harassment and rape or sexual abuse of children is not correct [and that] The courts are endowed with the ability, taking into account the specific singularities of the situation under analysis, to decide whether or not it is necessary to carry out such a psychiatric examination.”
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Summary:
“The courts are endowed with the ability, taking into account the concrete singularities of each situation, to decide whether or not it is necessary to carry out the psychiatric expertise referred to in Article 4(5) of Law No. 113/2009.”
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