RAPE | ABDUCTION | MUSLIM RELIGION | SEXUAL DISCRIMINATION | FEATURES OF THE CULTURE

 

 

       Supreme Court of Justice, proc. 498/09.1JALRA.C1.S1, 07.09.2011  

 

JURISDICTION: Criminal

SUBJECT: Appeal in matters of fact and amount of penalty

RAPPORTEUR: Pires da Graça

RULING: The appeal was granted in part, with a reduction of the penalty applied in first instance from ten to eight years’ imprisonment.

DOMESTIC LAW:

Code of Criminal Procedure [Articles 125, 126, 127, 151, 155, 158, 355(1), 374(2), 379(1)(a)(c), 410, 412(1), 427, 428, 434]

Criminal Code [Articles 30, 40, 71, 77, 161(1), 164(1)(a)]

Law no. 26/2010, of 30 August 2010

Portuguese Constitution [Articles 13, 16(2), 25, 26(1), 32]

Supreme Court judgment, proc. 28/03.9TAVIS, 10.02.2010

Supreme Court judgment, proc. 07P2429, 26.09.2007

Supreme Court judgment, proc. 2555/06-3ª, 15.11.2006

Supreme Court judgment, proc. 1795/06, 11.10.2006

Supreme Court judgment, proc. 3268/04, 15.11.2006

Supreme Court judgment, proc. 4454/07, 06.02.2008

Supreme Court judgment, proc. 3177/07, 09.01.2008

INTERNATIONAL LAW: n.a.

FOREIGN LAW: n.a.

KEYWORDS: Features of the culture; Morocco; Muslim religion; specific values and beliefs; sexual discrimination on the basis of gender; prostitutes; prostitution; typically Muslim locality; socialisation; Muslim culture; European lifestyle; Moroccan nationality; sociocultural development; integration; discrimination

COMMENTS:

  1. This judgment is illustrative of one of the main risks involved in using cultural information in court, in particular when that information concerns ‚Äúother cultures‚ÄĚ ‚Äď the risk of contributing to confirm and strengthen negative stereotypes about the communities at stake. On the basis on information provided by the social report on the defendant, the Supreme Court of Justice ‚Äď as the lower courts before it ‚Äď considered as a risk factor to weight when deciding on the penalty ‚Äúthe features of the culture to which the defendant belongs (he originates from Morocco and is of Muslim religion), with specific values and beliefs, among which the sexual discrimination on the basis of gender, which may lead to a disregard for the rights of others, in particular women‚ÄĚ. This direct link among sexual abuse, gender discrimination and Muslim culture/religion is problematic for its oversimplification and echoes of cultural determinism. It is at odds, in any case, with the case law of the Portuguese courts, which, for the most part, do not seem to be open to arguments about a special propensity of Muslims for gender violence, intolerance of religious fundamentalism [see PATR√ćCIA JER√ďNIMO, ‚ÄúIntoler√Ęncia, integra√ß√£o e acomoda√ß√£o jur√≠dica das minorias isl√Ęmicas na Europa: Os desafios postos √† pr√°tica judicial‚ÄĚ, in Paulo Pulido Adrag√£o et al. (eds.), Atas do II Col√≥quio Luso-Italiano sobre Liberdade Religiosa. A Intoler√Ęncia Religiosa no Mundo: Estado da Quest√£o, digital edition, Faculdade de Direito da Universidade do Porto, 2017, pp. 95-100].

 

  1. The Supreme Court was called upon to review an appeal lodged by a defendant convicted in first instance for the commission of two crimes of rape and two crimes of abduction in a combined penalty of ten years‚Äô imprisonment. The defendant had appealed against this decision to the Coimbra Court of Appeal, which had dismissed the appeal and confirmed the lower court ruling in full. Before the Supreme Court, the defendant argued that there had been an omission of ruling on the part of the appellate court, since it had not ruled ‚Äúon the questions regarding the matters of fact which required the consideration as established facts of new facts pertaining to the defendant‚Äôs personality and guilt, as well as to the conditions and whereabouts of the plaintiffs‚ÄĚ. Besides the declaration of nullity of the appellate court judgment, the defendant asked the Supreme Court to apply a combined penalty of no more than five years‚Äô imprisonment and to suspend the penalty. In first instance, the defendant‚Äôs defence had relied mostly on psychological/psychiatric grounds, with the defendant requesting a psychiatric expert examination and two personality expert examinations. According to the defendant, the statements made by the experts had made very clear that he ‚Äúwas in a state of diminished conscience‚ÄĚ at the time of the facts (which led him to think that the plaintiffs were prostitutes) and also that ‚Äúthe ¬ędeviations¬Ľ he suffers from as perfectly treatable‚ÄĚ; therefore, the court of first instance should have had considered these as established facts. The Supreme Court concluded that there was no omission of ruling on the part of the appellate court, only an assessment of the evidence different from what was wished by the defendant/appellant; this difference ‚Äúdoes not amount to any nullity, provided that the court assesses the evidence in compliance with the legal criteria‚ÄĚ. The Court of Appeal had reviewed, in accordance with the law and its competences, the questions raised by the appellant on the way the lower court had rules on the matters of fact, providing an abundant reasoning for its conclusion. The Supreme Court concluded therefore that the ‚Äúlist of established facts has become final‚ÄĚ. As for the decision on the penalty, the Supreme Court noted that it requires ‚Äúa critical examination and balancing of the interplay between the facts and the convict‚Äôs personality, in order to assess the global unlawfulness at stake‚ÄĚ, and that ‚Äúthe judge has a special obligation to determine and justify which factors are relevant in each operation of the calculus of the combined penalty, both in what regards guilt for the ensemble of facts, in what regards prevention, and also in what regards the personality and the facts considered as a whole‚ÄĚ. The Court of Appeal had concluded that 10 years‚Äô imprisonment was an adequate penalty on the following grounds: (a) the unquestionable gravity of the crimes, (b) the need for a period of imprisonment sufficiently long to allow the defendant to enter an adequate and sustainable resocialisation programme, (c) the ‚Äúabsolutely devastating‚ÄĚ consequences of the facts for the victims, and (d) the need to ensure that the penalty is long enough to allow for the identification of signs of changes in the defendant‚Äôs personality. The Supreme Court agreed to reduce the penalty, considering that eight years‚Äô imprisonment is an adequate and proportional penalty. In support of its decision, the Supreme Court cited the information in the social report and the defendant‚Äôs criminal record, noting that his religious identity could not be used against him and that the facts at stake (in number and time span) ‚Äúwere the result of opportunity and not of criminal tendencies‚ÄĚ. The Supreme Court also considered the high level of unlawfulness at stake, the high general and special prevention needs, and the fact that the combined penalty ranges from five to 15 years‚Äô imprisonment.

 

  1. It must be pointed out that the Supreme Court acknowledges that the defendant‚Äôs religion cannot hinder him in the decision about what penalty to apply, because that would be contrary to Article 13(2) of the Portuguese Constitution. This reference to the constitutional principle of non-discrimination is, however, somewhat weakened by the fact that the Supreme Court immediately juxtaposes other constitutional principles and fundamental rights, such as the right to integrity of the person (Article 25 of the Constitution), seemingly to note that the defendant‚Äôs right not to be discriminated against on the basis of his religion is not more important than the right of his victims to equality and their physical and mental integrity. The excerpt, with a complicated phrasing, deserves a direct quote: ‚ÄúHaving regard to the fact that the defendant‚Äôs socialization process took place in a favourable family and emotional context, although marked by the specific values and beliefs of his culture (Muslim), and that the fact that this contrasts with the risk factor represented by the features of the culture to which he belongs, with specific values and beliefs, among which the sexual discrimination on the basis of gender, which may lead to a disregard for the rights of others, in particular women, cannot, from a constitutional standpoint, hinder the defendant, in light of Article 13(2) of the Portuguese Constitution, which however also prescribes that all citizens have the same social dignity and are equal before the law ‚Äď Article 13(1), and that the physical and moral integrity of individuals is inviolable (right to integrity of the person) ‚Äď Article 25, and that all are entitled to legal protection against any form of discrimination ‚Äď Article 26(1); with the constitutional and legal provisions on fundamental rights having to be interpreted in line with the Universal Declaration of Human Rights ‚Äď Article 16(2)‚ÄĚ. It could be argued that, since it introduces the equality caveat, the Supreme Court should not be criticised for the statements made about the Muslim culture/religion, largely copied, in any case, from the social report made by the social reintegration services. It is nevertheless regrettable that the Supreme Court accepts the social report‚Äôs description of the Muslim values and beliefs without any reservations, and that the rapporteur decided to include in the summary of the judgment ‚Äď as it was published in the DGSI website ‚Äď the excerpt of the social report where it is mentioned that the Muslim values and beliefs (‚Äúin particular the sexual discrimination on the basis of gender‚ÄĚ) are a risk factor to consider when setting the penalty.

 

  1. The cultural information was not brought into the court procedure by the defendant, but instead by the social report made by the social reintegration services. There is no mention in the text of the judgment to a discussion of the defendant‚Äôs religion as a possible motivation for his actions during the trial hearing. As already noted, both the Supreme Court and the lower courts seem to have accepted the information provided in the social report without questioning it and transcribed the information ipsis verbis in their judgments. Besides the excerpt already cited in paragraph 1 of these comments, the social report includes the following cultural information: (a) ‚ÄúAA originates from Morocco, from a typically Muslim locality, a culture which influenced and determined his socialization process‚ÄĚ; (b) ‚ÄúAA‚Äôs socialization process took place in a favourable family and emotional context, although marked by the specific values and beliefs of his culture (Muslim)‚ÄĚ; (c) ‚Äúhis integration in Portugal and respective culture, with only nine years of age, may have created some difficulties in his psychological working and in his interpersonal relations‚ÄĚ; and (d) ‚Äúhe did not show significant difficulties, neither at school nor in his social integration, often adopting an European lifestyle, in particular in what regards his use of recreational spaces‚ÄĚ [italics added]. Worth noting here are the cultural determinism [(a)], the negative perception of Muslim values and beliefs, suggested by use of ‚Äúalthough‚ÄĚ [(b)], and the identification of the use of recreational spaces with the ‚ÄúEuropean lifestyle‚ÄĚ [(d)].

Patrícia Jerónimo

 

REFERENCES IN THE LITERATURE:

JER√ďNIMO, Patr√≠cia, ‚ÄúIntoler√Ęncia, integra√ß√£o e acomoda√ß√£o jur√≠dica das minorias isl√Ęmicas na Europa: Os desafios postos √† pr√°tica judicial‚ÄĚ, in Paulo Pulido Adrag√£o et al. (eds.), Atas do II Col√≥quio Luso-Italiano sobre Liberdade Religiosa. A Intoler√Ęncia Religiosa no Mundo: Estado da Quest√£o, digital edition, Faculdade de Direito da Universidade do Porto, 2017, pp. 59-100.

 

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