Decision nº 326/2014
23 April 2014
Article 1: Definition of a child
Article 37: Torture and deprivation of liberty
Article 49 of the Constitutional Procedure Law
Articles 67, number 2, 68, 177, numbers 2 and 3 of the Angolan Constitutional
Articles 10, 25 and 26 of Law n. 18-A/92
Articles 274, 282, 291, number 3, 315, 321, 323, 371 and 655 of the Criminal Procedure Code
Articles 49, 50 of Law n. 3/08.
Articles 55, 107, 108, 109 of the Criminal Code
The appellant was preventively detained by a first instance criminal court in relation to a murder she is suspected to have committed at the age of 17 and subsequently released on the order of a higher court. However, following her release, she was indicted, meaning that the prosecution against her formally commenced, and she was once again put into detention, which she challenged unsuccessfully. The present case is an appeal to the Constitutional Tribunal to assert the appellant’s right to liberty.
Issue and resolution:
Detention. Whether minors can be subject to preventative detention once they have been indicted. The Constitutional Tribunal found that minors cannot be subject to detention when other lesser penalties, such as release on bail, are available, even after they have been indicted.
On the one hand, Article 108 of the Criminal Code states that if a person who commits a crime was under 18 years old at the time, the maximum punishment will be between two and eight years in prison. On the other hand, pursuant to a combination of Article 291 of the Code of Criminal Procedure and Article 10 of the Law n. 18-A/92, provisional release is allowed when the crime is punished with a sentence between two and eight years in prison at most. Therefore, the Constitutional Tribunal concluded that provisional release, including on bail, must be available for minors.
Furthermore, the Constitutional Tribunal took into consideration the requirements of the Convention on the Rights of the Child, which states that imprisonment should be applied to children as last resort when no other type of punishment can be applied. Therefore, the Tribunal considered that the release on bail constituted “another type of punishment”, alternative to detention, and could be applied.
The Constitutional Tribunal therefore granted provisional release on bail for the appellant.
Excerpts citing CRC and other relevant human rights instruments:
As in full-text Portuguese decision:
De resto, a República de Angola é parte na Convenção das Nações Unidas sobre o Direito da Criança aprovada em 20 de novembro de 1989 e ratificada em 5 de dezembro de 1990. Desta decorre que, a detenção, prisão preventiva ou outra medida semelhante, deve ser aplicada ao menor em última instância, ou seja, só quando outra menos grave não puder ser aplicada.
Acordam em plenário, dar provimento ao pedido da Recorrente, concedendo-se a liberdade provisória requerida, mediante caução, entretanto já arbitrada, nos termos das disposições conjugadas dos artigos 108 do Codigo Penal, (a), paragráfo 2º do artigo 291 do Código de Processo Penal, artigo 10 da Lei n. 18-A/92, de 17 de julho (Lei da Prisao Preventiva em Instrução Preparatória), artigos 67, n. 2 e 80, n.1 ambos da Constituição da República de Angola e artigo 1 da Convenção das Unidas sobre o Direito da Criança.
In English as translated by CRIN:
Besides, the Republic of Angola is party of the UN Convention on the Rights of the Child, approved on November 20, 1989, which was ratified on December 5, 1990. As a result, imprisonment, preventive detention or any related measure, shall only be applied to the minor as a measure of last recourse, i.e., when no other lesser penalty can be applied.
The judges agreed to accept the request of the Appellant, granting the temporary bail request, through bail already imposed, in accordance with the dispositions of the articles 108 of the Criminal Code, (a), paragraph 2º of the article 291 of the Criminal Procedure Code, article 10 of Law n. 18-A/92, of July 17 (Temporary Custody Law – Preparation Instruction), articles 67, number 2 and 80, number 1, both of the Angolan Constitution and article 1 of the UN Convention on the Rights of the Child.
CRIN believes this decision is consistent with the CRC. The Tribunal correctly applied Article 37(b) on the deprivation of liberty, which states that imprisonment of a child should only be used as a measure of last resort.
This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice.