The Practice of Crimes by Minors and the Measures Applied

Cape Verde is a country with a very young population, the average age of the Cape Verdean population is around 28.3 years old and the number of people aged 0 to 24 years old corresponds to 48.2% of the population according to the latest statistical data published in 2017, by the National Statistics Institute.

The youth of the Cape Verdean population inevitably reflects on the crime practiced in the country and discussions about crime and criminality appear associated, often to juvenile behavior with an association between age and the practice of certain types of crime.

Juvenile delinquency is a topic that is gaining more and more attention in various sectors of our society due to the increase in crime committed by minors.

This article deals with the legal treatment of minors who, too early, are faced with criminal justice due to their anti-legal behavior.

Non-criminal liability of the minor.

Firstly, it is important and worth noting that in criminal law, talking about minors is referring to minors under 16 years of age, considering that the criminal majority in Cape Verde is reached at 16 years of age.

Under our Penal Code, minors under 16 are not held criminally responsible for their behavior.

In view of this, the following question arises: So, if a child under 16 commits a crime, it will have no penal consequences? Now, from the point of view of criminal law, there will be no consequences, the minor will not be judged or condemned for the crime committed because he is considered inimitable because of his age, that is, unable to answer for his criminal acts, however, not being criminally held responsible does not mean that the criminal act committed by a child under 16 years old will go unpunished even because, committing a crime, regardless of the author’s age, is a socially reprehensible act for violating essential values of healthy living in society.

In this order of ideas, just as there is the ECA – Statute of Children and Adolescents with the purpose of protecting and restoring the rights of children and adolescents, there are also so-called socio-educational guardianship measures for minors.

Therefore, this article will focus especially on imputability due to the age and the responsibility of juvenile offenders with educational guardianship measures to the detriment of the common regime applicable to adults.

The State has the power / duty to intervene corrective whenever a minor offends essential values of the community and minimum rules of social coexistence, this correction / education aims to adapt the child to the rules of life in society.

In this context, there are already referenced socio-educational guardianship measures applicable to minors who are in conflict with the law in order to particularize this population layer, separating them from the general regime of criminal measures, normally defined and regulated in the Penal Code and in other extravagant criminal laws.

Thus, the existence of this special regime can only be understood as the need to protect the best interests of children and adolescents, especially through the creation of internment establishments other than prisons, periods of internment shorter than those of prison sentences, with the objective of intervention always in the special interest of the minor.

What are the measures applied to the minor authors of facts qualified in the law as a crime under this legal diploma?

The socio-educational guardianship measures are:

• The admonition
• Reparation to the victim
• Carrying out tasks in favor of the community
• The imposition of rules of conduct
• The imposition of obligation
• Internment in a socio-educational center

The admonition measure and the obligation imposition measure are considered non-institutional measures.

Educational guardianship measures emerge as pedagogical instruments for responsibility and socialization, aiming at the education of minors for the law and their dignified insertion in community life, subjecting it to educational guardianship measures, with an eminently educational and non-retributive or punitive purpose.

It will contribute to measures for the minor to face his own mistake, confronting him and helping him to envision his future while respecting his duties as a citizen and knowing his rights.

Of the measures envisaged, the Court should give preference to non-institutional measures over institutional ones whenever they appear appropriate and prove to be sufficient, since, the measure of internment constitutes an ultimate ratio, due to the greater interference in the child’s self-determination.

The minor who practices a fact qualified by law as a crime will be criminally unenforceable, so his liability will be made at the tutelary level, and he cannot be the subject of a criminal trial. This is due to the fact that it is considered that the minor in the age group between 12 and 16 years old is still in the full formation of his personality and, for this reason, he is not always able to control his impulses and gauge the consequences of his actions.

For this reason, minors should be made aware of the need for harmony between their individual rights and social rights / duties so that they respect dignity, the values essential to healthy living in the community and collective justice. The minor must understand that there are rules and that they should not be disrespected. The minor offender must understand that with his “criminal” action he produced a social reaction / disapproval that will take him before a judicial authority and, ultimately, it will be able to see its freedom conditioned through its internment in a socio-educational center.

Our Penal Code enshrines the principle of re-socializing the agent and avoiding the criminogenic effect of the prison sentence by returning it to the rehabilitated society. If this is the case with adults, with minors the idea of re-socialization gains special relevance, taking into account that the minor has not even fully formed his personality and that is why the precautionary measures are essentially aimed at exclusively educating and not punishing.

In 2005, the Orlando Pantera Socio-educational Center was created, located in the city of Praia, with the objective of guaranteeing the internment, education and reinsertion of minors in society. According to the Director of the Socio-Educational Center Orlando Pantera in an interview at the celebration of the center’s 13th anniversary, she highlighted that the biggest challenge is to monitor the interns after the fulfillment of the judicial measure because society is not prepared to welcome people who were in regime internment. She adds that the internment process has proven to be effective despite some cases of inmates who, after completing the internment period, committed crimes that led them to serve effective prison terms.