In Part I we looked at a number of areas of the criminal law that are the focus of the new criminal justice bill 2013, including those relating to Financial Crimes and Corruption, Confiscation of the Proceeds of Crime, Increased Protection for Women, Protection of Minors, Intellectual Property Rights and Internet Pirating, as well as the new sentence of Life Sentence without Parole.
We now turn our attention to the other principal areas of criminal law that will see changes and new additions:
- Security Measures
- Release on License
- Robbery, theft and Procedural Changes
- Murder and False Imprisonment
- Resisting Arrest
- Minority Hate Crimes
Under this heading the government is turning it’s attention to the problem of offenders committing crimes after being released from prison. The concept of ‘Supervised Release’ was originally introduced in 2010 and applied to terrorist and sex offenders. Now, under the new criminal justice bill it is to be applied to a broader range of offenders including those convicted of robbery and other violent crimes.
A new ‘dual’ system is to be applied whereby an offender is punished according to the severity of the crime and in addition ‘security measures’ are to be applied in function of the offender’s danger to society.
Once the prisoner has completed the prison term, a judge will decide the length and extent of the control measures to be applied e.g. wear electronic locators, avoid specified places etc. up to a period of five years, though in the case of sex offenders, the period may be indefinite.
Release on License
Anyone who has been released under license and reoffends, may be returned to the prison to serve the remainder of any term that has yet to be served. This contrasts with the current system whereby any time spent out of the prison on release is discounted from the original sentence,
First the stick, then the carrot. First time offenders, with a sentence of less than three years, and who have an exemplary disciplinary record while serving their sentence, will be eligible for release on license after they have served half of the total sentence, instead of two-thirds as currently.
Robbery, Theft and Procedural Changes
The Ministry of Justice plans to convert 30% of all petty offences, known as ‘faltas’ into administrative sanctions with fines as the principal penalty which, it is hoped, will help to ease the log-jam of cases before the courts currently. The remainder of ‘faltas’ shall be converted to minor ‘delitos’, the classification typically reserved for indictable crimes.
One of the major changes within this area is that of theft, which previously was divided into simple larceny known as the ‘falta de hurto’, for small thefts, and the more serious ‘delito’ of ‘robo’ (robbery) for more serious offences.
With the disappearance of the ‘falta de hurto’, there will be a new gradation of severity applied to this crime with petty theft (of property below a value of 1000€) which will be dealt with by the new administrative system of sanctions, while if such thefts are carried-out in a more aggravated manner – for example with the use of violence, the presence of weapons in the commission of the crime, looting, theft that leaves the victim destitute, or theft carried-out in a professional manner – such as is the case with gangs of pickpockets – the more serious classification shall apply.
So, in the case of professional pickpockets, for example, a prison term of up to three years may be imposed while thefts committed from agricultural centres in the countryside will also be considered to be of an ‘aggravated’ nature with an elevated sentence as a result.
Murder and False Imprisonment
Illegal or false imprisonment whereby the victim disappears will be considered equivalent to murder and will be punishable with up to 15 years in prison; where the victim was kidnapped the term may be increased to 20 years – or 25 years if the victim is a minor or there is a sexual motive to the crime. The reasoning here is that it should not be beneficial in any way for the perpetrator to not reveal where the victim has been left.
Within the area of offences committed by failing to follow the directions of a Police Officer in the course of their duties, the new penal code provides clearer definition of what may amount to a commission of the offence and varies the penalties imposed.
Accordingly, any action that could cause injury or may put the police officer’s life at risk is included. A gradation is made such that mere passive resistance or disobedience is distinguished from violence or the threat of violence with or without arms or dangerous objects, launching blunt objects or flammable or corrosive liquids or driving a motor vehicle in the direction of the agent.
Passive resistance or disobedience have the tariff reduced to a prison term of between three months and six months from six months to one year.
Minority Hate Crimes
The government has moved to tighten and indeed to amplify those offences relating to the provocation of hatred or violence towards groups or individuals for racist, anti-Semitic motives or where hate or violence is directed at others on the basis of their religion, ethnicity, gender or sexual preference, including the production, elaboration or distribution of materials to this end.
There has been an element of uncertainty surrounding the term ‘provocation’ which the Supreme Court has stated could not be considered to be synonymous with ‘incitement, inducement or encouragement’. The offence is to be re-drafted under the new penal code and will specifically refer to ‘incitement, inducement and encouragement’ in the definition of the crimes.
Another new aspect contained in the legislation is that the commission of the offence by use of new technologies such as the internet and social media will be considered to be an aggravating factor when considering the sentence to be applied.
In fact, the commission of crimes by new technologies are an essential part of the updates made to existing legislation and so, for example, it will become a crime to use the internet, social media or other means of communication to invite others to commit public order offences.