Children and the Administration of Criminal Justice: The Perfection of Imperfections

Abstract

The Portuguese Constitution enshrines, in Article 60, the right of children to protection by society and the State. It imposes on the legislator and on public and private entities an active duty in terms of prevention, intervention, and the promotion of public policies aimed at protecting childhood against all forms of abandonment, discrimination, and oppression, as well as the abusive exercise of authority within the family and other institutions. The administration of justice may — although it should not — involve unacceptable practices when it places children in situations of particular vulnerability. The risk becomes more acute in criminal jurisdiction, especially when the restriction of a minor’s freedom is at stake. In our discussion, we analyzed the concept of child and minor, establishing a dialogical relationship between fundamental rights, personality rights, and non-imputability due to age for legal-criminal purposes. We have seen that the transposition of Directive (EU) 2016/800 of the European Parliament and of the Council has led to some changes in the Code of Criminal Procedure aimed at providing greater protection for minors when facing criminal justice. The Code of Criminal Procedure, while inherently focused on guaranteeing rights, still lacked amendments to strengthen the protection of accused minors, notably by granting parents or legal representatives the right to information, as well as the minor's right to be accompanied by them during procedural acts. Important steps have been taken, although it is a path constantly under construction.