Analyses the fulfilment of the objective and subjective types of the crime of subtraction of a minor, according to Article 249(1)(c) of the Penal Code.
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Article 249(1)(c) of the Penal Code states that "Anyone who repeatedly and unjustifiably fails to comply with the regime established for the cohabitation of the minor in the regulation of the exercise of parental responsibilities, by refusing, delaying or significantly hindering their delivery or reception, shall be punished with imprisonment of up to two years or a fine of up to 240 days".
Paragraph 2 of Article 249 states that "In the cases provided for in paragraph 1(c), the penalty shall be especially mitigated when the perpetrator's behaviour has been conditioned by respect for the wishes of a minor over the age of 12."
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In the case in question, the investigation was closed, following which the assistant/progenitor requested that the investigation be opened, in the context of which a decision was made not to indict, which was appealed.
With relevance to this case, the minor child of the former couple (made up of the assistant and the defendant) was under an alternating custody regime, and there were various non-compliance proceedings under appendices D, E, F, G and J..
As stated in the 1st instance judgement. In the context of the crime in question, it is not necessary for there to be an actual "subtraction", but only "a refusal to comply, or in fact, a failure to comply with the obligations arising from the regime established or agreed for the regulation of parental responsibilities for minors [and] the typical formulation does not represent or provide for the removal or concealment of the minor, or a refusal to hand over the child to the person exercising parental authority, it merely constitutes, in certain circumstances, the establishment of an instrumental and functional form of injunction to fulfil the obligations arising from the parental responsibility regime, strictly speaking, a modality that is constitutively close to disobedience. "
Even so, we cannot ignore the fact that criminal law is applied as an ultima ratio, so that "non-compliance, with the meaning of point c), should and can only make sense when it refers to situations of ultima ratio, and the normally adequate means of enforcing compliance with parental obligations do not prove to be effective".
The first instance judgement thus states that
"The current wording of art. 249, no. 1, al. c) of the Code of Criminal Procedure, interpreted from the point of view of its typicality, is intended to deal with situations in which the refusal, delay or creation of significant difficulties in handing over or taking in the child is carried out, for example, through the flight abroad of one of the parties bound by the parental responsibility regime, or through behaviour or abstentions of a similar scale, with serious damage to the stability and rights of minors; it is in such circumstances that there is a need not for states to abstain from dealing with legal-family relations, but also for duties of a positive nature, imposing on states the duty to create expeditious legal mechanisms for compliance".
With regard to the defendant/progenitor, the decision ruled that she should not be prosecuted on the grounds that the subjective element of the offence had not been verified, i.e. that
"17 - The defendant knew and could not have been unaware that by not handing over the child she was doing so repeatedly and unjustifiably, knowing full well that this would result, as it did, in the assistant being absolutely unable to live with the child.
18 - The Defendant was aware of the unlawfulness of her behaviour, knowing that it was forbidden and punishable by law, but she did not restrain herself from doing so.
19 - The defendant therefore acted freely, deliberately and knowingly."
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With regard to the defendant/progenitor, the Court of Appeal held that
Considering that there were, at least, failures to hand over the child, who was only 11 years old at the time, on the following days (some before the technicians and with the knowledge of the family and minors court, as well as the respective OPC):
20/03/2020, 01/05/2020, 21/05/2020, 19/06/2020, 10/07/2020, 22/07/2020, 24/07/2020, 01/08/2020, and on 05/08/2020, warrants were issued to collect/conduct the minor to the assistant/progenitor.
"This factual context, combined with the most elementary rules of common experience and logic, allows us to conclude that the defendant, an adult and normal person, by proceeding in the manner described, knew that she was repeatedly and continuously violating the regime established for the coexistence of the minor in the regulation of the exercise of parental responsibilities, preventing the assistant from living with the child, which she wanted and succeeded in doing."
also emphasising that the defendant did not make any statements during the investigation and that, even so, "we must not forget that we are dealing with a young boy who was initially only 11 years old, and therefore not yet capable of making a critical and conscious decision about various essential aspects of his life, including his right to be close to both parents and to live with them. Therefore, the child's reluctance to accompany his father would not be a justification for the defendant's behaviour towards his mother.
The result of all this is, without the slightest effort, a wilful act by the defendant, which being a fact of inner life and there being no confession, cannot be proved in any other way than by combining evidence of objective facts with the rules of normality and common experience."
Therefore, the Guimarães Court of Appeal decided to revoke the first instance decision and, as a result, replace it with another that pronounces the defendant guilty of committing, as the perpetrator, a crime of child abduction, provided for and punishable by article 249, no. 1, c) of the Penal Code.
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Summary:
"I. Since it has been sufficiently established that the defendant does not comply with the alternate custody regime that was stipulated by the court, repeatedly refusing to hand over her son to his father, completely preventing the two from living together for more than a year, with the justification that it was the boy, aged 11, who did not want to go with his father; then it must also be considered indicative that the defendant, an adult and normal person, by proceeding in the manner described, knew that she was repeatedly and continuously violating the regime established for the cohabitation of the child in the regulation of the exercise of parental responsibilities, which she wanted and achieved.
The whole fact emanates from the defendant's actions, which were always free, voluntary and conscious, and which she obviously knew were forbidden and punishable by law, as any person with the slightest degree of social integration would necessarily know.
II. An 11-year-old does not yet have the capacity to make critical and conscious decisions about various essential aspects of his life, including his right to be close to and live with both parents. Therefore, the child's reluctance to accompany his father is no justification for the behaviour of the defendant, his mother."
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