The Law governing Youth Custody, Protection and Re-education – absence of any mechanism for deducting the time a minor has spent while held under a preventive care measure at an education centre (under a semi-open or closed regime) from the duration of a youth custody, protection and re-education measure, also at an education centre
Protection and re-education of minors;
Principle of equality;
Youth custody, protection and re-education measures.
RULING No. 177/13
20 of March of 2013
The fact that the Law governing Youth Custody, Protection and Re-education does not provide for a time-deduction mechanism like the one that exists in the Penal Code, under which the time an accused person spends in custody, on remand or in home detention is deducted in full from a subsequent prison sentence, is intentional. There is therefore no gap in the law that might be completed by analogy. The specific goals of youth custody, protection and re-education measures – namely that a minor be taught to be law-abiding and be inserted in community life in a dignified and responsible manner – imply an assessment of the minor’s personality and an estimation of his/her future development, in which the effects of the application of earlier measures must necessarily be weighed up. The demanding nature of this evaluation process would not appear to be reconcilable with the rigidity and automatism inherent in the ‘institute’ of a criminal-law time deduction. The differences between the measures applied to persons who have committed facts that are qualified as criminally unlawful by the regime established in the Law governing Youth Custody, Protection and Re-education on the one hand and the time-deduction rules laid down in the Penal Code on the other is thus materially justified.
As such the Court found that the norm under which the time a minor has spent at an education centre under a preventive care measure is not deducted from the length of his/her detention under a custody, protection and re-education measure is not unconstitutional.
The appellant in the present case was a minor who was the object of a custody, protection and re-education measure in the form of his institutionalisation under a semi-open regime at an education centre for one year. The court of first instance denied his request that the time he had already spent at an education centre under the terms of a preventive care measure be deducted from the time he was then ordered to spend in an institution. This was upheld by the Court of Appeal, whereupon the minor appealed to the Constitutional Court against the decision at second instance.
In a 2008 Jurisprudential Standardisation Ruling the Supreme Court of Justice held that there is no place for time deductions of this type in youth custody, protection and re-education proceedings.
The appellant argued that there was a breach of the principle of equality, in that this position means that comparatively speaking, a minor who has committed the same illicit facts as an adult and who, under the terms of the Law governing Youth Custody, Protection and Re-education, has first been the object of a preventive care measure which restricts his/her individual freedom, and is then sentenced to a custody, protection and re-education measure which also restricts his/her liberty, is treated less favourably than that adult. Application of the protection and re-education measure entailing institutionalisation under a semi-open regime implies that the minor must have committed a fact that is qualified as a crime against one or more persons and is punishable by a maximum term of more than three years’ imprisonment, or two or more facts that are both qualified as crimes (though not necessarily against persons) and whose commission can be punished by prison terms that can exceed three years. If the applicable regime were that established by the Penal Code, the agent would be able to deduct the time already spent under the terms of an initial measure depriving him/her of his/her freedom from the prison sentence. Not so in the case of the Law governing Youth Custody, Protection and Re-education.
The Constitutional Court noted that although its competence includes assessing the reasonableness and internal coherence of infra-constitutional normative solutions, it is not just any incoherence or lack of harmonisation that justifies criticism on constitutional grounds The constitutional command that requires acts of the legislative power to comply with the principle of equality may lead to the prohibition of legal systems included in different normative solutions that are not in harmony or are incoherent with one another. This means that in order to be considered incongruent, the lawmakers’ choices must be reflected in the fact that the solutions to certain subjective-law situations must have been configured in different ways and that there be no justifiable reason for the extent of this inequality. The members of the Constitutional Court are responsible for preventing laws from establishing unreasonable regimes – i.e. legal disciplines that differentiate between persons and situations that deserve the same treatment or, on the contrary, treat people and situations in the same way when they ought to be handled differently. The Court cannot issue findings of unconstitutionality if what is at stake is the simple existence of a minor internal incongruence in a legal system that does not lead to an unreasonably different treatment of subjective-law positions.
In the case before it, the Court held that there are reasonable motives which materially justify the legislator’s choice. The constitutional norm that enshrines the right to freedom and security distinguishes between the total or partial degrees of deprivation of freedom derived from detention, remand in custody or the imposition of a prison term on the one hand, and the subjection of a minor to protective, assistential and educational measures at an appropriate establishment on the other. What is more, recognition of the special need to protect children itself justifies the difference in regimes. Inasmuch as juvenile delinquency is practised by human beings who are in the process of being formed and trained, the justice applicable to minors must take account of the resulting specificities.
The Constitutional Court therefore took the view that the considerations which formed the grounds for the normative differentiation between penal measures and youth custody, protection and re-education measures set out in the above-mentioned Jurisprudential Standardisation Ruling by the Supreme Court of Justice were valid.
The principles applicable to the law in the field of the protection and re-education of minors are distinct from those in penal proceedings, and the teleology of criminal penalties is situated on a plane that is quantitatively and qualitatively different from that on which youth custody, protection and re-education proceedings take place. Criminal procedural principles are guided first and foremost by the need to protect legal assets that are important to the community, with a view to defending society, whereas the youth custody, protection and re-education process emphasises the minor’s private interest in receiving education that will help him/her to be law-abiding and re-socialise him/her – i.e. that will enable him/her to return to, or remain in, the general social fabric without thereby undercutting the law. This also serves to fulfil the state’s interest, in that the state is responsible for defending society from its most prevaricating members, even if the citizens concerned are minors.
The imposition of custodial, protective and re-educational measures is thus underlain by the need to teach young people to abide by the law – a need which is displayed when a person commits a fact and which must continue to exist at the moment when the court decides what to do with him/her. The purpose of the intervention is not to seek retribution for the harm that has been caused. The law applicable to minors is not a punitive law – one that is targeted at sanctioning the commission of an illicit fact; its goal is to correct the personality of the offending minor.
Notwithstanding the commission of a fact which the penal law qualifies as a crime, it is not actually imperative that the state intervene at all, if the fact is really not serious and there is no evident clash with important community values. This possibility of there being no state intervention because it is unnecessary and would be disproportionate is incompatible with penal law, but legitimate with regard to the law in the custodial, protective and re-educational field.
The way in which a measure that entails the institutionalisation of a young person is implemented also contrasts with a prison term, nor is preventive care at an education centre the same as remand in custody. Although the youth measures entail limitations on freedom, their legal regime is characterised by its greater flexibility.
In addition, the regime governing the review and revision of youth custody, protection and re-education measures, which is dominated by the principle “rebus sic stantibus” and makes it possible to adapt the measures to the minor’s educational needs, is incompatible with the regime on the execution of criminal penalties.
If one were to deduct the time spent while held under a preventive care measure from the duration of a youth custody, protection and re-education measure, the latter’s compression would work against the interests of the minor by prejudicing the scope of his/her re-education. This was not in the legislator’s mind when it intentionally failed to provide for such a deduction.
The Constitutional Court therefore declined to find the norm before it unconstitutional.
Rulings nos. 232/03 (13-05-03); and 546/11 (16-11-2011).