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QUESTIONÁRIO DO GRUPO BRASILEIRO DA AIDP
ENCAMINHADO AO COLÓQUIO PREPARATÓRIO DA ASSOCIAÇÃO
INTERNACIONAL DE DIREITO PENAL SOBRE
CRIMINAL RESPONSABILITY OF MINORS IN NATIONAL AND INTERNATIONAL LEGAL ORDER

Vienna, Austria, 26 a 28 de Setembro de 2002

I. JUSTIFICATION OF THE PRINCIPLE

Without entering into an abstract criminal philosophical debate, it seems indispensable to indicate the basis of the principle of criminal responsibility/irresponsibility of minors for each national legal system. This leads to the following questions:

Is the principle announced in an explicit manner by a legal text? When necessary, has the jurisprudence helped to complete the legislative dispositions or filled the silence of the law?
In the Brazilian legislation the principle of penal irresponsibility of minors is in force. However, this principle is subject to measures foreseen in special legislation. This is foreseen in art. 228 of the Brazilian Federal Constitution, which says that minors under 18 are submitted to the special legislation, as minors are persons still in the process of development. This special legislation is called the Statute of Child and Adolescent (Act 8.069/90), also known as SCA (ECA in Portuguese). It does not establish penal punishments for minors, but only imposes measures denominated "social-educational".
Is the principle based on classical legal reasoning (imputability/guilt) or is it based more on a criminological concept of "criminal capacity"?
The criterion foreseen in article 26 of the Brazilian Penal Code as well as in article 228 of the Federal Constitution is denominated bio-psychological. This criterion is derived from a perspective of criminal policy that holds persons under 18 should not be held criminally responsible and that persons over 18 should only be held criminally responsible if they are able to understand the illicit character of the acts they commit. On the other hand, as already mentioned, the criminal acts committed by adolescents are foreseen in Act 8.069/90. The criteria used to judge these acts are better explained later in this report.
Are there existing doctrinal or legislative tendencies which, if necessary, aim at giving the responsibility of minors a specific justification?
Yes, this tendency exists, supported by the criterion of capacity of comprehension (16 or 14 years of age). According to the defenders of this idea, adolescents who are 16 or even 14, are perfectly able to understand the eventual consequences of their criminal acts and that no justification exists for exempting adolescents under the age of 18 from criminal responsibility.
Does a specific concept of "juvenile crime" exist which is independent of the principle of criminal responsibility; and, if so, for what types of acts?
No specific concept of "juvenile crime" exists at this time. The SCA considers juvenile infractions as either crimes or misdemeanors. In reality, there is no difference between the concepts of juvenile crime and crime in general, as both are breaches of the law and considered illicit acts.
Does a tendency exist to exclude minors from benefiting from the juvenile justice system for the sake of treating them as adults for certain crimes that are particularly serious (for example: acts of terrorism, rape...)?
This tendency does not exist in Brazilian law. All crimes committed by minors will be judged within the SCA, with punishments passed in proportion to the severity of the crime committed. For example, crimes such as homicide or rape are usually punished by incarceration.
Do dispositions (civil or criminal) exist which favor the responsibility of parents for the delinquent behavior of their children who are not of age based on the notion of objective responsibility?
In purely criminal cases, parents or guardians are generally not held responsible for the conduct of minors. In cases including civil charges, the judge can order the adolescent to return the property, pay the property's equivalent value, or compensate the victim for the damage in some other way. In cases where none of these measures are possible, the obligation to provide compensation for any damage caused can be substituted by another adequate measure. In the civil sphere, judicial measures exist that allow parents to be held responsible for their children's acts, depending on the initiative of the victims in a specific process. Additionally, measures exist to provide parents of juvenile offenders with support such as family counseling.

II. THE QUESTION OF DIFFERENT CATEGORIES OF AGE

Once the principle of responsibility is established, the essential question is the different categories of age which determine the responsibility/irresponsibility of minors. Thus the following questions:

a) What is the age of criminal majority?
a) Article 228 of the Brazilian Federal Constitution of 1988 states that "minors under 18 are penally irresponsible, subjected to the norms of the special legislation". The same disposition is found in article 27 of the Penal Code, reformed by Act 7.209/84 and article 104 from SCA; thus, the legal penal age in Brazil is 18.

b) Has this age been recently modified?
b) This age has not been recently modified. The age at which persons can be held criminally responsible has remained 18 since the Penal Code of 1940.

c) Are there existing tendencies to increase or lower this age? For what reasons?
c) Due to today's high crime rates, especially in the larger Brazilian cities, there has been a public outcry for lowering the penal age. The principle argument in support of this position maintains that adults often use adolescents as a longa manus for their criminal actions and that the special treatment of minors therefore impedes police efforts to effectively and efficiently prevent crime. A second argument holds that adolescents already have the capacity to understand their acts, citing that Brazilian legislation allows 16 year-olds the right to vote and that adolescents' increasing access to information has accelerated their development. In opposition to these arguments, various human rights nongovernmental organizations that work to protect adolescents affirm that the statistics show a far greater number of crimes are committed by adults than by adolescents and that therefore no modifications are necessary. Moreover, a majority of the Brazilian specialists in constitutional rights understand the current penal age as being an individual right derived from the Federal Constitution (art. 228) that cannot be modified (not even by Constitutional Amendments).
a) Is there a minimum level under which the minor can not be punished or receive educational measures for the crime he/she has committed?
a) The SCA designates people under 18 as children or adolescents. This designation is based solely on age and does not consider psychological or sociological factors. A person is considered a child if she is under 12, and an adolescent if she is between 12 and 18 years old. If a child commits a crime, she will not be prosecuted or punished within the jurisdiction overseeing crimes committed by minors and will instead be sent to a Custody Council. This Council, according to SCA article 131, "is permanent, autonomous, and non-jurisdictional, placing society in charge of looking after the fulfillment of children's rights, and putting into effect protective measures for children foreseen by the law". Thus, punishments can only be imposed on adolescents.

b) If so, does this level consist of a chronological age or can it vary according to the subject?
b) As stated in the answer above, the minimum level is solely a chronological criterion.

c) In this latter case, what is the criterion (legal, psychological…) which determines this level?
c) ----
a) Does there exist specific categories that benefit from a particular regime?
a) No such specific categories exist.

b) What measures are possible in the case of an infant committing a crime?
b) If a crime is committed, the judge can impose social-educational measures upon the adolescent. Such measures aim to socially reintegrate the adolescent and prevent her from committing another crime in the future. While the SCA holds that state intervention should have the protection and the reeducation of the minor, as well as the prevention of further crimes, as its goals, it does not prevent the minor's incarceration. However, a jail sentence imposed upon a minor must not pose an undue interference to the minor's life, must be the minimum sentence possible, and can only be imposed in exceptional cases in accordance with article 112. Alternatives to incarceration include: admonition (both verbally and expressed in a signed, written document); the obligation to repair damage (in cases involving damaged property, the authority may, should the need arise, determine whether the adolescent must restore the property, reimburse any damage caused, or compensate the victim's loss in some other way); ordered community service (consisting of unpaid work in the public interest for a period of not more than six months at hospitals, schools and other institutions, as well as in community and governmental programs; probation (the judge will designate a trained person to monitor the case and promote the adolescent's social growth by providing them with orientation, as well as including them in a program of aid and social assistance); part-time incarceration (this measure can be instituted at the beginning of a sentence or as a parole measure, allowing prisoners to conduct activities outside of prison independently of judicial authorization. Education and vocational training are still obligatory); and finally, incarceration (a deprivation of freedom that in no case can exceed a maximum period of internment of three years. Once the sentence has been served, the adolescent should be released and placed in a system of part-time incarceration or probation). Almost all of these measures resemble penalties in the Brazilian Penal Code, which are applicable for people above 18 years old.
Are there specific dispositions that apply to the category "young adults"? If so, up to what age can a subject be considered a part of this special regime?
In Brazil, the category of "young adults" does not exist. However, for those that are close to reaching 18 years of age (but not yet considered adults), the socio-educational measure can be extended to 21 years of age in accordance with provisions of specific care foreseen in the SCA. Still, it is important to reaffirm that in no case can the maximum period of penalty exceed three years.

III. JUDICIAL ESTABLISHMENT OF CRIMINAL RESPONSIBILITY OF MINORS

Without entering into an exposé on the totality of the procedural dispositions concerning minors, it seems timely to examine the following questions pertaining to the principle that we are analyzing:

a) Are there special jurisdictions competent to judge minors who commit crime?
a) Yes, there is a special jurisdiction to judge minors. It is called "Justice of Infants and Adolescents". The SCA establishes an exclusive and a specific jurisdiction to the "Judge of Infant and Adolescent". The Prosecutor will initiate proceedings aimed at investigating the infraction and the Judge will determine whether circumstances exist that warrant trying the adolescent and, eventually, will foresee the socio-educational measure. Judge within this jurisdiction are professional judges, selected by a public civil exam, just like judges within the basic criminal jurisdiction. If a child commits an infraction, there will not be a trial and the act will be considered by the Council of Guardianship, which will impose measures to assist and orientate the child and her parents or relatives.

b) When these jurisdictions exist, to what extent do they use juries or have members of other professions to sit with the professional judges?
b) There are no "non professional judges" in Brazilian courts and juries are not used in trying adolescents.

c) Specify the composition of these jurisdictions.
c) ----
a) How is the responsibility/irresponsibility of the minor established judicially?
a) Art. 277 of the Federal Constitution of 1988 includes a special protection of the child and adolescent, in respect to their condition as persons in development. Besides these specific guarantees, the adolescent who commits an infraction has the same formal guarantees given to all those that commit crimes. They have the right to know what they have been accused of, equality in the proceeding and a technical defense by a lawyer. The SCA describes an infraction as a crime or misdemeanor. There are three distinct moments when an adolescent will be processed for her crime. The first one, done by the chief of police when she apprehends the product, the instruments used to practice the crime and conducts an investigation; the second occurs when the adolescent is presented to the prosecutor for an informal hearing; the third occurs during the judicial phase when the adolescent is heard by the judge in the presence of her parents or guardian and of her lawyer. After the prosecutor's accusation is commenced, the judge will designate the first hearing, deciding upon the decree or the maintenance of internment. The adolescent will be communicated the reason for his/her accusation. He will then be presented to the judge immediately after this. The adolescent's parents, lawyer and prosecutor will also be present at the hearing. When necessary, the Judge may ask for the opinion of an expert. After hearing the adolescent, the judge can take other measures to gather more information about his/her family and social situation. After the hearing the lawyer has three days to prepare a preliminary defense and list of witnesses. Another hearing may be designated where the witnesses will be heard, and later the prosecutor and lawyer. Following the hearings, the judge will pronounce a sentence. It is possible to appeal against this decision.

b) Does the jury or the non professional judges take part in pronouncing the minor guilty or not guilt?
b) ----
Does the court have recourse to prior investigations, obligatory or optional (expertise, medico-psychological examination, personality study), before ruling on the question of the responsibility of the minor?
Yes, the Judge can consult experts' opinions and all prior investigations to study the case. In some circumstances, examinations can be made into the situation of the parents or relatives, the family situation, the habits and the personality of the adolescent, and the circumstances of the act committed. These investigations are not obligatory and will be used by the Judge to determine what measure is appropriate to impose upon the adolescent. It is important to remember that these exams never concern the adolescent's capacity to comprehend the consequences of her act.
Are there two distinct stages, one deciding the questions of the minor's guilt (conviction stage) and the other pronouncing the sanction (sentencing stage)?
The stages are not distinct. When the judge decides on the minor's guilt he will immediately pronounce the sanction (the appropriate socio-educational measure).
Briefly describe the role of the victim when the crime is committed by a minor. Can the victim initiate the action? Is the victim allowed to ask for reparation before the jurisdiction that judges the minor's responsibility? Can the victim obtain reparation even if the minor is considered irresponsible? Before what court (civil or criminal)? Finally, do alternative procedures (of the mediation-reparation type) exist?
Once the victim communicates the crime to the police, the minor will be prosecuted. The criminal action against the minor is public. Among the applicable measures in cases where the minor is found guilty is the order to repair the damages caused. If the victim believes that the reparation in the penal sphere is sufficient, it is not necessary to initiate an action in the civil sphere. If the victim does not believe these reparations are sufficient, reparation in the civil sphere is possible, as in the civil sphere, the parents or guardians of the minor must answer for the damage caused to the victim (even when the minor herself is considered irresponsible).

IV. SANCTIONS AND MEASURES APPLICABLE

Describe the specific sanctions and measures that can be applied to minors or, in absence of these dispositions, the modalities of applying to minors the general sanctions and measures of adults.

What measures can be applied to minors before judgment (provisional detention, judicial supervision, constraining measures/ and or educative measures)?
The measure of provisional internment can be applied for at the most 45 days and it will be served in a specialized institution. This measure can only be applied when sufficient proof of responsibility and materiality exists.
If the minor is judged responsible, does the court have a choice between pronouncing a punishment or an educational measure, or does it have no choice?
The judge has the choice of which punitive measure to apply in the case varying from a simple admonition in the simplest cases, to internment in na adequate institution in the most serious cases.
What is the general tendency concerning specific measures applicable to minors?
If the crimes were committed by first-time offenders without violence or serious threats to the person, alternative measures, such as community service, will be applicable in place of prison. In more serious cases, especially those involving violence, judges have applied internment.
Do legal criteria for determining the sanction exist?
The measures applied to the adolescent must take into account her capacity for serving the sentence, as well as the circumstances and the gravity of the crime. Forced labor is not permitted under any circumstances. Furthermore, adolescents who are sick or mentally deficient will receive individual and specialized treatment, in an institution appropriate to their condition. Such legal criteria obey the principle of proportionality.
Does the court possess the means to moderate the punishment (for example, the defense of lack of criminal capacity) or to allow for a more flexible execution of the sanction?
The Prosecutor can grant the remission, as a way of suspension or extinction of the process. The remission is a modality of pardon for the crime committed, considering cause of extinction of punishment. In case of suspension, the process will await the fulfillment of the socio-educational measure applied to the adolescent. The judge will determine a social supervision, through a multi professional team that will supervise the execution of the measure. As an extinction of the process, the remission ends the judicial activities, in which the adolescent will not be obligated to execute any measure. Besides this, some judges have adopted the posture of recognizing in the probation, even though without legal prevision, a type of mitigation of the severity of the incarceration.
Does the execution of the sanction have any particular supervision and according to which modalities ( for example, a magistrate which supervises the execution of the sanction)?
Yes, sanctions are controlled by the Department of Execution of the Infancy and Youth (DEIY) of the state of São Paulo. Other states of our federation, have similar departments. In the (DEIY) there is a judge, with the same hierarchy as the one in charge of the judicial processes against adolescents, and that takes care exclusively of the facts which happened during the execution of the sanction. Because of the existence of various records, based on interdisciplinary reports, the possibility of measures of anticipating freedom or the mitigation of the severity in the execution of the sanction, as mentioned in the previous answer.
a) Does a tendency exist which favors the decriminalization of juvenile justice?
a) This tendency does not exist. As a matter of fact (as already clarified), there is a tendency to reduce the age of responsibility of the minor.

b) Is this tendency based on the dissociation of the responsibility and the sanction?
b) ----
Can capital punishment be pronounced in the case of juveniles, and if so at what age?
Article 5, XLVII, "a" of the Brazilian Federal Constitution states that "there will not be death penalty except in the case of declared war". Because of this constitutional guarantee, there is no capital punishment in Brazil. Consequently, capital punishment cannot be applied to minors as well as adults.
Does the punishment of life imprisonment or for an indeterminate time exist?
Article 5, XLVII, "b" of the Brazilian Federal Constitution does not permit sentences of life imprisonment. Additionally, the Statute of the Child and Adolescent establishes that all socio-educational measures cannot exceed the period of 3 years.

V. INTERNATIONAL ASPECTS

Besides the general dispositions of international and humanitarian law which apply indifferently to adults and minors, one must underline the specific dispositions concerning minors that influence the determination of criminal responsibility. Without making an exhaustive list of these dispositions, certain should be mentioned such as the Rules of Beijing which fix the minimum rules concerning juvenile justice (Res. 40/43. Ass. Gen. U.N. Nov. 29, 1985) ,, the Convention on the Rights of the Child (Ass. Gen. U.N., Nov. 20,1989) of whose importance does not need to be mentioned in this area, the resolutions of the United Nations VI Congress (Havana, 1990) particularly Resolution II concerning the protection of minors deprived of liberty. Also, on a regional level, numerous dispositions have an important influence in this area. This is true for example of European recommendations, particularly Recommendation n.º R 87-20 of the Committee of Ministers of the Council of Europe concerning social reaction to juvenile delinquency (Sept. 17,1987).
One must not forget, finally, the dispositions that apply to minors in the statutes of international criminal courts. In this manner, the authors of the Treaty of Rome creating the International Criminal Court (July, 17, 1998), aware of the role of minors in armed conflict, were careful to enact dispositions concerning the criminal responsibility of minors.
Taking into consideration these observations, the national reporters are invited to consider more particularly the following questions:

What are, briefly enumerated, the relevant dispositions in international law having an incidence on the determination of the criminal responsibility of minors?
Among the international dispositions having an incidence on the determination of the criminal responsibility of minors, Brazil is a signatory to the following: Declaration of the Rights of the Child (ratified in Brazil on 12.10.1948); Pact of San José of Costa Rica (ratified in Brazil on 11.06.1992); Minimum Rules of Beijing (while they have not been ratified and therefore do not have normative power in Brazil, these rules were the basis for the creation of the SCA); Recommendations of Riad (while they, too do not have normative power in Brazil, they have contributed to developing social policy and the administrative structures concerning infant-juvenile justice); Rules of the United Nations for the Protection of Young People Deprived of Freedom; Convention on the Rights of the Child (Brazil ratified the text in its totality on 09.21.1990).
What authority do these dispositions have vis-à-vis national sources?
Article 5, paragraph 2 of the Federal Constitution of 1988 expressly declares that, "the rights and guarantees expressed in this Constitution does not exclude other international treaties in which Republic Federation of Brasil is part". Therefore, the norms and the principles foreseen in conventions or treaties to which Brazil is a signatory, are part of its internal judicial order. Thus, the treaties and conventions ratified in Brazil and enumerated in the previous item are considered, for all legal matters, internal laws.
Do they have a real influence in positive law (for example, direct application)?
Yes, they have a real influence. Since they are part of the internal legal order, these norms or principles must be applied, as custom, by the judge. The treaties and conventions have direct application when ratified in Brazil.
Do particular dispositions exit concerning the criminal responsibility of foreign minors? How, for example, can one determine the age of a minor in the absence of official documents that attest the alleged age?
No particular dispositions concerning the criminal responsibility of foreign minors exist. In case of serious and established doubt as to whether the party should be treated as a minor, jurisprudence recommends that the legal system grants penal irresponsibility. There are specialized investigations that check the persons' age. These investigations, however, sometimes do not discover a precise date, as not even the medical or radiologic exams have capability to determine the precise age of the person examined with the necessary accuracy.
Do special dispositions concerning police, judicial and penitentiary cooperation exist that apply to minors who are in a criminal procedure?
The policy of enforcing the rights of the child and adolescent are implemented through a coordenated governmental and non-governmental actions of the Federal, State, Federal District and Municipality Governments. Among the lines of enforcement policy, there is the operational integration of the entities of the Judiciary, Office of the Attorney General, Office of the Public Defender, Public Security and Social Assistance (article 86 of the SCA).