Porto Court of Appeal, proc. 0842155, 28.05.2008

THEFT | SUSPENSION OF THE EXECUTION OF THE PENALTY | ROMA ETHNICITY | UNFAVOURABLE CULTURAL, SOCIAL AND ECONOMIC CONDITION

 

 

Porto Court of Appeal, proc. 0842155, 28.05.2008

 

JURISDICTION: Criminal

SUBJECT: Theft; suspension of the execution of the penalty

RAPPORTEUR: Isabel Pais Martins

RULING: Rejects the appeal and confirms the lower court decision, which had denied the request for suspension of the execution of the prison sentence applied to the appellant.

DOMESTIC LAW:

Code of Criminal Procedure (Article 371-A)

Criminal Code [Articles 2(4), 40(1), 50]

INTERNATIONAL LAW: n.a.

FOREIGN LAW: n.a.

KEYWORDS: Family of Roma ethnicity; social report; street vending; norms and values of the Roma ethnicity; deviant behaviour; minimum social income; nomadic characteristics; personal origin and condition; very unfavourable cultural, social and economic condition; specific family and social milieu; defendants’ immaturity; socially dangerous attitude; good prison behaviour; criminal audacity; community’s sense of justice; bold criminal personality; socialisation defect

COMMENTS:

1. In this judgment, the Porto Court of Appeal reviews an appeal lodged by an individual of Roma ethnicity against a decision which had denied his request for suspension of the execution of the four-year prison sentence that had been applied to him for the commission, in co-authorship, of a crime of theft. The text of the judgment consists, in large part, of the citation of the lower court’s ruling on the facts and on the merits, which the Porto Court of Appeal confirms, even though it does not agree with the lower court’s view that the retroactive application of a more favourable criminal law provision to cases for which there are final convictions must be made exclusively on the basis of the facts established by the final ruling in the original case. The Porto Court of Appeal makes no mention to the appellant’s ethnic origin, merely noting that, with the practice of the crime, he had shown “a bold criminal personality” and a “socialisation defect”, which in the Court’s view did not allow for a “grounded hope that socialisation could be achieved outside of jail”.

 

2. The appellant, identified as defendant C., had been convicted by a judgment of the Supreme Court of Justice, already final, in a penalty of four years of effective imprisonment. Together with his co-defendant (defendant B.), he had requested the reopening of the trial for the retroactive application of Article 50 of the Criminal Code, after it was amended by Law No. 59/2007, of 4 September 2007, since this amendment had widened the possibility to suspend the execution of penalties to prison sentences of up to five years. Once the trial was reopened, the lower court had decided to keep the previous judgment in its exact terms and the prison sentences as effective for both defendants. Only defendant C. appealed against this decision to the Porto Court of Appeal, asking that his penalty be suspended in its execution. The main argument on the appeal brief was that Article 371-A of the Code of Criminal Procedure had been breached since the lower court had not considered relevant information that was favourable to the defendant, such as the fact that he had not committed more offenses and had no disciplinary record in prison. In its review of the appeal, the Porto Court of Appeal noted that the appellant had not invoked before the lower court any facts that had not been considered by the original judgment and had not presented nor requested the production of any additional evidence. As already mentioned, the Porto Court of Appeal disagreed with the view of the lower court as to the possibility of presenting and reviewing additional evidence relevant to the ruling on the question of the retroactive application of a more favourable criminal law provision. According to the Court, the lower court could have based its decision of not suspending the execution of the penalty on facts not considered by the original ruling, more precisely, the “actual procedural status of the appellant at the time of the new ruling”, as supported by an updated Criminal Record, and the fact that the prior suspension of the execution of the penalty applied to the defendant in another criminal case had in the meantime been revoked. These “new facts”, which in no way benefited the appellant’s claim, were the only ones that the Porto Court of Appeal considered to be relevant, since the facts invoked by the appellant (not having committed more offences and having good behaviour in prison) were dismissed by the Court as “inexact” and “anodyne”, respectively.

 

3. The cultural information appears in the text of this judgment solely through the citation of the lower court ruling, which also cites long passages of the rulings issued by the different courts in the original case. The identification of defendant C./appellant as being of Roma ethnicity results from his Social Report, where it was mentioned inter alia that he “originated from a family of Roma ethnicity”, “had never had a regular professional activity and occasionally helped his parents in street vending”, “had been subject to state intervention for deviant behaviour”, and “lived from the minimum social income”. The Social Report of his co-defendant, also of Roma ethnicity, indicated inter alia that the “educational process had been marked by norms and values of the Roma ethnicity” and that he had never attended school “due to the nomadic characteristics of his family”. Even though both defendants were under 21 at the time of the events, in the original case, the first instance court rejected the application of the special regime for youths, on the grounds that it did not believe that it would be advantageous for their social reintegration. Establishing a direct causal link between the origin/milieu of the defendants and the commission of criminal offenses, the court had noted: “The fragilities and deficiencies of their milieu, namely their family milieu, without capable structures nor sufficient motivation, show that the achievement of that fundamental goal does not allow for any loosening of the reproach and even less for an hypothetical recourse to any other measure. Their own personal conditions, reflected in the social reports, in the prior convictions that they already have and in the facts in which they are now involved, serious and revealing of personalities strongly deviated from the normal standards of behaviour, show that the achievement of the penal purposes requires that they be punished as adults”. The causal link is presented in even more explicit terms in the remarks made by the same court on the subject of the penalty’s measure. “The defendants, therefore, show that they have personalities already oriented for the commission of crimes, which, though it can partly be explained by their origin and very unfavourable cultural, social and economic condition, is intolerable as the defendants not only despise the forms of support that society currently offers to those who seek them, but also defy the values and the institutions”. In another passage, the same court held that the fault shown in the way the crime had been planned and committed should be “tempered by the personal conditions of the defendants with regard to their upbringing, education and (specific) family and social milieu”. Even though these remarks can be viewed as an attempt on the court’s part to understand or, at least, contextualise the defendants’ behaviour from their positions of disadvantage, the terms in which the causal link is established are problematic, for their potential contribution to the stigmatisation of persons of Roma ethnicity. Also problematic is the allusion to the “self-segregated and ungrateful Roma” trope, suggested by the mention that the defendants despised the “forms of support that society currently offers”, which the court presented as contributing to make it “intolerable” that the defendants pursued their commission of crimes.

Patrícia Jerónimo

Nicole Friedrich

 

Cite as: JERÓNIMO, Patrícia, and FRIEDRICH, Nicole, “[Annotation to the judgment of] Porto Court of Appeal, proc. 0842155, 28.05.2008”, 2022, available at https://inclusivecourts.pt/en/jurisprudencia2/.

 

REFERENCES IN THE LITERATURE: n.a.

 

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