Antonio Duarte-Fonseca was born in Coimbra (Portugal) where he studied Law. He is Adjunct Director of the Centro de Estudos Judiciários (Centre for Judicial Studies), the national school for the training of judges in Lisbon. He has a PhD in judicial and criminal Sciences and is a member of the Family Law Centre of the University of Coimbra where he cooperated in courses on the Protection of Infancy. He usually cooperates as a visiting professor in courses on the law on infancy organized by other universities. He was part of the workgroup that prepared the project for the current law on minors committing criminal offences (Juvenile Educational Law) as well as the workgroup that prepared the project for the current law on the execution of punishments and custodial measures. His whole career has been closely linked with children’s rights and the prevention and treatment of juvenile delinquency. He is the author of various monographs and studies. He has had different superior functions at the Ministry of Justice (general deputy director of the Gabinete de Estudos e Planeamento, vice-president of the Institute for Social Reinsertion) and at the Ministry of Education (general deputy director of secondary education). He was also the director of two Re-education institutes for the General Directorate of Youth Services and after that, the Department in charge of the coordination of detention centres of the Ministry of Justice.

Question.- In which historic context did the criminal legislation for minors see the light in Portugal?

ANSWER.- We never really did have a specific criminal legislation for minors in Portugal. The XIX century penal codes did include extenuations or even replacements of punishments in case the convicts were minors, but the courts and prisons were the same for both minors and adults. In 1871 a correctional and detention institution was created in Lisbon (Casa de Correcção e Detenção de Lisboa) which was the first legal intent to take minor convicts out of adult prisons. Less than one year alter the fall of the monarchy and the creation of the republic, in 1911, the Lei de Protecção à Infância (Law on the Protection of Children),was published, marked by positivist ideals on crime prevention and regeneration of the child offender. This law created special courts for minors (las Tutorias da Infância) which could take protection and prevention measures concerning minors at moral danger and take decisions – that pretended to cure instead of punish, although they were rather punishing- concerning minors younger than 16 years who had committed minor or serious offences. From then on, the other Portuguese laws (of 1925, 1962, 1978 and 1999) concerning minors who have committed offences which are qualified as criminal by the penal law, have been definitively marked by the fundamental characteristics of this crucial change: until today the age limit of criminal responsibility is still the same (16 years); minors who have committed an offence can be judged by special courts and according to a specific procedure as foreseen in a special law and specific measures can be applied without really being punishments.

Q- What is the current legislation in force for the penal law on minors in conflict with the law in Portugal and what is its basis?

A.- Minors who have committed offences at the age of 16, fall under the general penal law, this means that they are considered as adults from a penal point of view although from a civil law point of view, they are considered as minors. An extenuation however is foreseen, according to the age, in the Decreto-Lei nº 401/82, of 23 September 1982, which is the first Portuguese law whose objective is to establish a special penal regime for young adult offenders. This law, which was the result of the Penal Code Reform of 1982 that applies article 9, is marked by a deep belief in the special capacity of resocialisation of youngsters.
For minors between 12 and 16 years old who have committed offences, the Lei Tutelar Educativa (Law on Educational Protection) published under the Ley nº 166/99, of 14th September 1999 is applied. According to this law, these minors can be judged, if necessary, until they are 18, by special courts (Tribunais de Família e Menores: Family and Minor Courts) following a specific procedure (Proceso Tutelar Educativo) and with specific measures (educational protection measures) that do not have a punishing nature and whose duration is set in the ruling.
For minors under 12 years who have committed offences, the Lei de Protecção das Crianças e Jovens em Perigo (Law on the Protection of Children and Youngster in danger) published under the Ley nº 149/99, of 1st September 1999, is applied; this means that they receive the same treatment as child victims.
These two laws of 1999 are the result of the great reform which started in 1996 and represented a change regarding previous laws greatly marked by a protection ideal mixed with a concern for crime prevention having judicial – and practical – differentiation amongst minor victims, pre-offenders and offenders as a consequence which was very often evil and thoroughly unfair. Hence the concern of the legislator of 1999 for foreseeing different responses – although they can be juxtaposed if necessary for the same minor – regarding minors in danger and minors who have committed criminal offences. On the other hand, the state can only intervene in indispensable cases, either by discovering circumstances that can cause serious damage to their health, normal development and the carrying out of other important rights recognised to minors (which means that the Protection Law is applied), or by the obviousness of a necessity in the minor’s education of fundamental values discovered through the committed offence qualified as a crime (which means that the Educational Protection Law will be applied). In this case, the minor has to learn how to be responsible for the damage he caused by carrying out the measure imposed by the court.

Q.- What are the specific natures or similarities of the juvenile justice system regarding other European systems?

A.-The system produced by the 1999 Reform holds an important peculiarity regarding other European systems: it gives less important to the offence than to the necessity of the minor’s education in fundamental values of the community, which are protected by the penal code. The evidence of the offence on itself is indeed not enough to activate the educational protection intervention. An educational protection measure can only be applied if the minor’s need for education has been proven, not only at the moment they commit the offence but also while the measure is being applied. We are not talking about scholar education or professional training as before in previous laws, according to the protection model; it is about discovering and identifying, through the circumstances in which the offence was committed, the serious absence of values. Without them, the minor can not be nor become a free and responsible citizen. The educational protection measure has got to be chosen depending on the casual need and its intensity at the time of the judgement. The principle of the present important of the need for education has to be applied at all ties during the educational protection proceedings and also during the execution phase of the measure. Because of this principle, the institute in charge of revising the measures is very flexible. When they can prove that the need for education is less, the measure has to be adapted: they can shorten the time or replace the measure by another one that is less demanding or they can end it before time.
So it is obvious that the Portuguese law did not follow the same course as other European legislations that centre their attention more on the crime committed by the minor (and the social alarm it causes) than the child itself in order to apply and know the state or community intervention. The Portuguese law does however resemble those legislations regarding the educational protection proceedings seeing that it is inspired a lot by the penal proceeding especially regarding the guarantees.
The importance given by the 1999 Portuguese law to the reparation and service in favour of the community brings it closer to other European laws.
The Portuguese system is very similar to the Belgian system (without taking into account the federal aspects). Besides, this resemblance is not new. The Portuguese Law of 1911 took over various aspects of the legislative projects that led to the Belgian Law of 1912, this procedure being repeated with the Portuguese Law of 1962 that took over aspects of the legislative projects that led to the Belgian Law of 1965.

Q.- Did the current legislation evolve or undergo any changes lately? If so, which changes and what were the motivations for the modifications?

A.- The Educational Protection Law came into force on the January 1st 2001 and the results of the last three years are mainly positive. Nobody has felt the need to change it. Only a small part of the offences committed by adolescents between 12 and 16 years end up in court. Far less detention measures have been issued in centres belonging to the Ministry of Justice while restorative measures increase.
In any case, the 1999 system reform has not ended yet. We have been waiting a long time already to change the special penal regime for young adult offenders. We know that the Government is preparing a project on this issue. It is not very probable that the age of criminal responsibility will be raised to 18 (the penal code has just been modified and they did not change this aspect). It is however probable that there will be new aspects in the new law for young adults regarding the nature of the punishments that will be applied – new alternative punishments to prison – or their duration (shorter).

Q.- Which detention measures will be applied and in which proportion?

A.-Minors who fall under the Educational Protection Law can be send to educational centres that are managed by the Directorate-General of Social Reinsertionl (Direcção-Geral de Reinserção Social) that is run by the Ministry of Justice. A court – in this case composed of three judges: a magistrate and two citizens called “guises sociais” (literally “social judges”) - can send them there if they consider that the most adequate and most restricting measure possible is detention in an educational centre. This measure can be applied in open or semi-closed regime and can take from 3 months up to 2 years. It can also be applied in closed regime for minors older than 14 and in this case it can take from 6 months up to 2 years. Detention in semi-closed regime shall only be applied if the punishment for the offence committed corresponds to a strict prison sentence of limited duration. Detention in closed regime can exceptionally take up to 3 years when the offence committed corresponds to a prison sentence of more than 8 years or when the committed offences correspond to crimes committed against people, punished with prison sentences of more than 5 years.
Detention in a closed or semi-closed educational centre can also be determined by a Juvenile Court judges as a prevention measure that can take up to 3 months and can be exceptionally extended to 6 months.
The evaluation of their personality – compulsory before the application of the detention measure in a closed educational centre – is also carried out in this kind of centre or in a semi-closed centre during 2, exceptionally 3 months.
In 2004, 12% of the total of the minors who received educational protection measures, received detention measures in an educational centre. Compared to 2003, this means there has been a decrease of 3%. In 2004, 22% of the total of the minors who received detention measures, received detention measures in a closed regime. Compared to 2003, this means a decrease of 5%.

Q.- What are the alternative programmes or resources to the deprivation of the minor’s liberty?

A.- According to the law, detention measures in closed regime can only be applied if other protection measures – obeying the legality principle – are not adequate for the minor’s educational needs. In the legislative texts, the measures are put in the following order: from the least to the most coercive: reprimands, deprivation of the right to drive or obtain a driver’s permit for motorcycles, apologies to the victim, render money or services to a community entity, imposition of behavioural rules, imposition of obligations, assistance to training programmes and finally educational supervision by the Directorate-General of Social Reinsertion. The law also says that the court must connect as soon as possible parents and other important persons in the minor’s live with the execution of these measures, defining the respective cooperation with the services and entities in charge of assuring the execution of these measures.
The repairing intervention is always possible and is a consequence of the principle of relevance of the minor’s educational needs and can determine the classification of the process because of the uselessness of the educational protection intervention.

Q.- Which psychotherapeutic resources are available for minor offenders with psychic disorders?

A.- The educational protection intervention intends to be educational and responsibilizing for minors who have committed a criminal offence. Those minors are supposed to understand the meaning of the intervention in order to act in accordance. So we have to stress that the law is not applied for cases in the mental health framework.
The measure for the imposition of obligations can consist of submitting the minor to medical, medico-psychiatric or medico-psychological treatment at an official or private entity or institution in open or closed regime for the treatment of psychic disorders. If the minor is older than 14, we need their consent.
The assistance to training programmes can consist of assisting psycho pedagogic education programmes.

Q.- What is the importance and role given to the minor’s socioprofessional reinsertion? Do there exist any specific measures or programmes? If so, did these programmes have any influence on recidivism rates?

A.- Since long ago, we know that formal controlling entities intervene in the field of criminality through a selection and filtration system. Minors who are in “obvious” conflict with the law are generally children and youngsters that did not have or could not make the most (for different reasons) of schooling and professional training opportunities which jeopardizes seriously their future regarding social integration. School and professional training play an important role in an intervention which pretends to be educational and this way also responsibilizing. But it is obvious that we must never forget that the need for schooling or professional training is not enough on its own to justify the intervention of juvenile justice and especially the application of detention measures more or less limiting or depriving them of their liberty.
The measure imposing obligations, to which we have referred before, can also consist of: frequenting an educational establishment controlling the regularity and schooling benefits or frequenting a professional training establishment. The measure imposing the participation in training programmes can also consist of participating in professional orientation programmes. The educational centres – medium age of the target group between 16 and 17 and with a low schooling level – always invest in official education and training programmes which allow scholar and professional certification in order to promote social reinsertion. Unfortunately there is no information available on the influence of these programmes on the recidivism rates. We need to invest more in this area.

Q.- What is the training level of the professionals who work specifically with minors in conflict with the law?

A.- La Ley does not entrust specific entities or organisations with the insurance of the execution of educational protection measures except for the Directorate-General of Social Reinsertion and this only regarding the educational surveillance measure and the detention measure in an educational centre. Professionals who work there with the minors must have carry out their educational orientation tasks or give psychological or social support. Others carry out the tasks of accompanying minors in their daily tasks. These professionals must have a technical and professional course degree, although a lot of them have a university degree because of the shortage on the job market.
The General-Directorate of Social Reinsertion (or until recently, the Institute for Social Reinsertion) invests traditionally a lot in the training of its personnel.

Q.- Which principles ensure the complete protection of children’s and adolescents’ rights? Which legal assistance mechanisms for minors exist in Portugal?

A.-The Law on the Protection of Children and Youngster in Danger to which I have referred before, is an important instrument in the promotion and protection of children’s rights because it applies the following principles: superior interest of the minor, respect of privacy, early and minimum intervention, proportionality principle, relevance, the parents’ responsibility, listen and inform the minor and its parents about their rights and the subsidiarity of the intervention – which means that protection commissions of children and youngsters on a community level, only intervene when necessary and after the competent entities in infancy and youth affaires and that Family and Juvenile Courts only intervene when necessary and after the intervention of the competent commission.
According to the Educational Protection Law, a legal assistance is offered during every act of the process involving the minor. This law is completed by a long and detailed General and Disciplinary Rules for Educational Centres (Decreto-Lei n.º 323-D/2000, of the 20th December), without this, the law could not have come into force.

Q.- What is the situation regarding juvenile violence in Portugal? Various incidents that have appeared in the press concerning juvenile violence have caused European Governments to plan or modify the national legislation using a more repressive approach. What about Portugal?

A.- Juvenile delinquency registered in Portugal is only a small part of the general registered delinquency and we can say that the statistics are full of trifles. Fortunately violence is not very highly represented. It is curious how girls – who are, like in other countries les present than boys – are proportionally more violent than boys. We must however mention that over the last years there has been an increase of juvenile violence in groups and of bullying. But we must take into account that this last phenomenon is far less recent than we think; what did change is the social visibility and the attention that is been given to this phenomenon. Not so numerous juvenile violence cases registered over the last years have received a lot of media attention and this has caused the lowering of the age of criminal responsibility from 16 until 14 years or even 12. Since centuries, aging societies like for example the European society do not trust youngsters and they are afraid of them… fortunately, the Government did not follow this road of false alarming which has nothing to do with statistics. Although you here people say from time to time that the law is not strict enough.

Q.- What is your biggest hope for the future of juvenile justice in Portugal?

A.- I would really like it if they change the age of criminal responsibility from 16 to 18 and that there finally comes an end to the absurd legal distinction between the “civil minor” and “penal minor”. This would completely avoid minors of 16 and 17 to be treated by criminal law like adults and, without distinguishing between minors and adults, to be sent to prison and to be mixed with adults. Portugal was one of the first countries to ratify the Convention on Children’s Rights, but in this aspect, the Convention is not being carried out yet. The legal concept of «minor» must get rid of this perverse ambiguity.