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FRAUD | THEFT | CRIMINAL OFFENSES COMMITED BY MEMBERS OF ETHNIC MINORITIES | SPECIAL VULNERABILITY OF THE VICTIMS ON ACCOUNT OF THEIR AGE

 

Porto Court of Appeal, proc. 135/14.2GAVFR.P1, 10.05.2017

 

JURISDICTION: Criminal

SUBJECT: Aggravated fraud, aggravated theft, and possession of prohibited weapon

RAPPORTEUR: Manuel Soares

RULING: The defendants’ appeals were dismissed while the Public Prosecutor’s appeal was partially granted, with (a) confirmation of the conviction for possession of prohibited weapon, (b) repeal of the decisions pertaining to the termination of criminal procedures following the withdrawal of the complaints, the acquittals and to the convictions for simple fraud and simple theft, and (c) conviction of the defendants in prison sentences for crimes of aggravated fraud and aggravated theft.

DOMESTIC LAW:

Code of Criminal Procedure [Articles 49, 51, 97, 99(1), 127, 147, 169, 328-A, 340, 348(5), 355, 374(2), 410, 412, 417, 431(b)]

Criminal Code [Articles 28(1), 40, 67-A(1)(b), 71, 109, 116(2), 132(2)(c), 152(1)(d), 152-A(1), 155(1)(b), 158(2)(e), 160(1)(d), 169(2)(d), 175(2)(e), 204, 210, 217, 218, 226(1)]

Portuguese Constitution [Article 205(1)]

Supreme Court of Justice, judgment 3/2012,18.04.2012

Supreme Court of Justice, judgment 4/2016, 21.01.2016

Supreme Court of Justice, proc. 241/08.2GAMTR.P1.S2, 23.02.2011

Supreme Court of Justice, proc. 233/08.1PBGDM.P3.S1, 09.02.2012

Supreme Court of Justice, proc. 93/02.6TAPTB.G1-A.S1, 21.01.2016

Constitutional Court, judgment 259/2002, 18.06.2002

Constitutional Court, judgment 140/2004, 10.03.2004

Évora Court of Appeal, proc. 89/15.8GTABF.E2, 13.09.2016

Porto Court of Appeal, proc. 801/10.1TAESP.P1, 09.12. 2015

Coimbra Court of Appeal, proc. 533/12.6GESLV.C1, 26.10.2016

Coimbra Court of Appeal, proc. 202/10.1PBCVL.C1, 16.06.2015

INTERNATIONAL LAW: n.a.

FOREIGN LAW: n.a.

KEYWORDS: Fraud; theft; criminal offenses committed by members of ethnic minorities; special vulnerability of the victims on account of their age; free assessment of the evidence; in dubio pro reo; personal recognition; high degree of persuasion; physical features (sex and age); fraud as a way of life; professional performance; discernment degradation in old age; social reintegration plan; elderly people; gain empathy and trust; high level of geographical and residential mobility; minimum social income; taking advantage of the old person’s frailty; fluent; well spoken; cunningly; accomplice; shed-like houses; cultural and social rules and norms of the Roma ethnicity; strong cohesion and solidarity ties among the members of the family; marriage according the Roma customs; extended family; interpersonal relation with the members of the local community; preference for intrafamily relations; educational model typical of the ethnicity of belonging; family dynamics marked by cohesion and assistance; difficulties in adapting to the school environment; large family of Roma ethnicity; strong feelings of belonging to the group and to the cultural values of the ethnicity of belonging; odd jobs; capacity to assimilate the social values and norms in force; values and rules of behaviour underlying the Roma ethnicity; feeling of belonging centred in the family; low social and personal skills; influence of the Roma culture; social milieu associated with high levels of criminality; rules of logic, science and common experience; description of impersonal traits by the witness; modus operandi; significant changes in the defendant’s physical appearance; possession of all mental faculties; subjectivity in the age assessment; deliberate change in physical appearance; attempt to disguise the physical appearance; credibility of the recognition; corroborating evidence; professional fraudster; diminished capacity as a result of old age; special exposure to danger; smooth-talking; victims’ particular naïveté; all victims fell for the same story; act as a gang; shamelessness; commission of offenses in front of children; personality entirely insensitive to respect for social values and for the children’s needs of normative direction; reparation of the crimes; defendants’ specific social milieu; street vending; particularly high social alarm; life in the margins of society; compliance with their own codes; stronger feelings of insecurity; damaging stereotypes; Roma defendants; valid for any community of persons; social origin or belonging

COMMENTS: Coming soon.

REFERENCES IN THE LITERATURE:

REIS, Eva da Silva Rodrigues Pinto dos, Apropriação Indevida de Identidade: Enquadramento Jurídico-Penal [Identity Theft: Criminal Law Framework], Lisbon, University of Lisbon, 2020, available at http://hdl.handle.net/10451/44507.

REIS, Eva da Silva Rodrigues Pinto dos, Apropriação Indevida de Identidade: Enquadramento Jurídico-Penal, Lisboa, Universidade de Lisboa, 2020, disponível em http://hdl.handle.net/10451/44507 [29.03.2022].

 

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Posted inFRAUD CRIMINAL OFFENSES COMMITED BY MEMBERS OF ETHNIC MINORITIES SPECIAL VULNERABILITY OF THE VICTIMS ON ACCOUNT OF THEIR AGE THEFT
TagsParticularly High Social Alarm Aproveitando a Debilidade do Idoso Roma Defendants Act as a Gang Professional Performance Well Spoken Odd Jobs Fraud Fraud as a Way of Life Professional Fraudster Capacity to Assimilate the Social Values and Norms in Force Physical Features (Sex and Age) Marriage According the Roma Customs Shed-Like Houses Accomplice Credibility of the Recognition Criminal Offenses Committed by Members of Ethnic Minorities Discernment Degradation in Old Age Description of Impersonal Traits by the Witness Significant Changes in the Defendant’s Physical Appearance Difficulties in Adapting to the School Environment Family Dynamics Marked by Cohesion and Assistance Corroborating Evidence High Degree of Persuasion Smooth-Talking Special Exposure to Danger Special Vulnerability of the Victims on Account of Their Age Damaging Stereotypes Diminished Capacity as a Result of Old Age Extended Family Large Family of Roma Ethnicity Fluent Cunningly Strong Cohesion and Solidarity ties Among the Members of the Family Strong Feelings of Belonging to the Group and to the Cultural vValues of the Ethnicity of Belonging Gain Empathy and Trust Shamelessness High Level of Geographical and Residential Mobility Influence of the Roma Culture Stronger Feelings of Insecurity Social Milieu Associated with High Levels of Criminality Defendants’ Specific Social Milieu Educational Model Typical of the Ethnicity of Belonging Modus Operandi Deliberate Change in Physical Appearance Cultural and Social Rules and Norms of the Roma Ethnicity Compliance With Their Own Codes Social Origin or Belonging Victims’ Particular Naïveté Personality Entirely Insensitive to Respect for Social Values and for the Children’s Needs of Normative Direction Elderly People Social Reintegration Plan Possession of all Mental Faculties Commission of Offenses in Front of Children Free Assessment of the Evidence In Dubio Pro Reo Preference for Intrafamily Relations Personal Recognition Low Social and Personal Skills Rules of Logic Science and Common Experience Interpersonal Relation With the Members of the Local Community Minimum Social Income Reparation of the Crimes Roubo Feeling of Belonging Centred in the Family Subjectivity in the Age Assessment Attempt to Disguise the Physical Appearance Valid For Any Community of Persons Values and Rules of Behaviour Underlying the Roma Ethnicity Street Vending Life in the Margins of Society All Victims Fell for the Same Story