A young person 16 years of age or older, who engages in criminal activity, shall in principle be brought to trial at a common court, where the Special Criminal Regime for Young People shall be applied (law no. 401/82 of September 23rd).

1.    Introduction

Only a few non-jurists know about the special regime for young adults which doesn't apply in all cases. It is about a legislation especially created, and approved by the law no. 401/82 of September 23rd, that may be applied in cases when 16-to-21-year-old suspects are sentenced to criminal sanctions. The law stipulates that in case of prison sentence, the judge shall decide punishment mitigation whenever he/she seriously believes that it will ease the process of the offender's rehabilitation. On the other hand, the special regime for mitigation of punishment provided by the art. 73 and 74 of the Portuguese Criminal Code, implies reducing the maximum limit of the punishment applied to that kind of crime by one third. The minimum limit is reduced to one fifth if the penalty is of 3 or more years and to the legal minimum if the penalty is shorter.


2.    Justification of the regime

The special regime is justified by the explanatory statement in the preamble of the law itself, which expresses "the necessity to find adequate measures to respond to young people's acts which are defined by law as being of criminal nature. The Criminal Law for young adults became a separate category, relating to a life cycle which corresponds to a phase of social latency and making delinquency a temporary and transitional phenomenon".
It is known that "the transition from youth to adulthood in modern societies does not take place in the same way as it used to, through passage rituals, such as graduation from school, military service or marriage. These life stages used to mark the beginning of a new chapter in the individual biography. What happens these days is more of a growing autonomy in relation to the parents and an arising dependency on a kind of society which heterogeneously categorizes young adults as financially autonomous or not, as possessing vocational training or not and as living in his parent's house or on his/her own".
Delinquency is favored in this period of social latency, in which the young adult withdraws the control of an educational institution and of the family, before engaging with any personal or professional relationship. On the other hand, as soon as the young adult assumes responsibility, the propensity to misconduct declines.


3.    Characteristics

3.1.    Non-compulsory application
There is no compulsory application of the special regime provided in the present law. In fact, it is up to the judge to decide whether punishment mitigation will be of an advantage for the offender's social rehabilitation process, or not.
The young adult's social integration is relevant to the decision about the application of the special regime. The aspects to be considered are namely his/her familiar and professional stability, personal and economic situation, behavior before and after committing the crime, especially whether there has been made any effort to repair the consequences of the wrongful act.
If the offender's personality does not show to be against social rehabilitation, the special regime may function as an incentive for social reintegration and as an inhibitor of future misconduct.
In other words, although the special mitigation is not of an automatic application, the court shall make use of it whenever a series of circumstances in the concrete case justify a prognosis favorable to the agent, in the sense that a special punishment mitigation might be of an advantage to the rehabilitation of the offender.

3.2.    Compulsory appreciation
As opposed to the concrete application of the special regime - which is always dependent on the judge's consideration - the jurisprudence has been of the opinion that the judge cannot choose to omit an explicit appreciation about whether the referred regime is applicable or not, when the young offender is between 16 and 21 years old. According to the recent judicial decision given by the Portuguese Supreme Court of Justice on March 3rd 2005 (process no. 04P4706), the application of this special criminal regime "is not a mere possibility for the judge, but rather a duty which the judge has to accomplish whenever he considers the circumstances to justify it. In that case, the application can be considered both, compulsory and of the court's responsibility." In other words, if the offender is under 21 years old, the Court is obliged to indicate the reasons for its position in both cases, application and non-application of the regime, despite its non-compulsory character.

3.3.    Appreciation by the Court
The appreciation of the non-application of the special regime does not depend on a request by the public prosecutor or the offender, being its verification of the court's entire responsibility. As a result, the judge shall proceed on his/her own initiative with the necessary actions in order to be able to evaluate the premises.

4.    Lack of elements

The lack of sufficient elements in the files is not a valid reason to omit an appreciation. In fact, the procedure code enables the judge to have access to the data mentioned in art. 4 of the decree-law no. 401/82, even without the offender's assistance. For instance, the articles 370 and 371 of the Portuguese Code of Criminal Procedure, provide the court with the possibility to request a social report or information from the social rehabilitation services, at any stage of the trial, or even its updating in case of already being part of the files, as well as to request the collection of any supplementary evidence that might turn out necessary, such as an interview with the social worker and any relevant person who could provide information about personality and living conditions of the offender.


5.    Lack of Appreciation

The lack of appreciation of the elements about the young offender's personality, his/her behavior before and after the criminal offense, as well as the offender's integration into the family, the employment and the society, which are essential to the pondering about the application of the special regime, is tantamount to the verification of a defect which, according to article 410, paragraph 2, subparagraph a) of the Portuguese Code of Criminal Procedure, amounts to the impossibility of a factual decision.

6.    Procedural consequence

However, the existence of such defect does not necessarily imply the nullity of the first trial and the repetition of the whole evidence (article 426 of the Portuguese Code of Criminal Procedure). If the lack of these few specific elements represents the only impediment to the decision about the application or not of the mitigation, it would be incomprehensible and unacceptable to repeat the whole process related to the criminal acts, since the evidence presented before the court does not relate in any way to the concrete matter of the special regime for young adults. Therefore, the best solution would be to reopen the case (art. 371 of the Portuguese Code of Criminal Procedure), having determined the necessary actions for the assessment of the missing elements, according to art. 340, paragraph 2 of the Portuguese Code of Criminal Procedure, namely the social report. Afterwards, the application of the special regime for young people shall be pondered and the result of this appreciation shall be integrated in the final decision.


Conclusion

As soon as the young offender enters prison, his/her process of reintegration into society shall be assisted by the social rehabilitation services, in an equal way as all the other inmates.
Each inmate is entitled to an educator, namely an expert, who assists the inmate during his/her imprisonment and compiles an individual rehabilitation plan.
Regarding the inmates' activities and education, there are a few references in the decree-law no. 265/79 of August 1st to the young delinquents. Apart from those exceptions, the general regime of the individual's