Presumption(s) and minority in criminal law
Jacopin, Sylvain
Presumption(s) and minority in criminal law - 2020.
75
The ordonnance of February 2, 1945, relating to delinquent children poses the principle of criminal responsibility based on discernment, understood as “the capacity to understand and to want,” to use the expression borrowed from the Laboube judgment of December 13, 1956. This question is left to the judge. Now, with the ordonnance of September 11, 2019, there is an additional condition: the age of the minor. It is a question of establishing a threshold for the minor’s capacity of discernment. The age of thirteen is now a threshold for presumption: below this age, a lack of discernment is presumed, and beyond this age, it must be proven by the public prosecutor. However, whereas the texts do not specify it, the presumption must be considered “simple”: as before, it will remain for the judge to decide, but within a more limited legal framework. It is especially important not to confuse this new age threshold with the minimum legal age threshold from which a sentence can be imposed on a minor (called “the age of criminal capacity”). This threshold, put in place as of the ordinance of February 2, 1945, is maintained at thirteen. It is also reinforced within the framework of the new system of applicable sanctions. The reform therefore brings the age threshold (thirteen) of criminal capacity into line with that of criminal minority. This situation begs questions because it reproduces the ambiguities of the past and leads to new confusion within the legal regime applicable to minors. In these circumstances, it would have been more appropriate to reserve criminal irresponsibility only for “infans” (seven years old). The solution adopted, which consists in affirming the criminal irresponsibility of the minor on the basis of a system of “presumed lack of discernment/lack of discernment to be proven,” in connection with the pivotal age of thirteen, is highly prejudicial to the criminal law of minors.
Presumption(s) and minority in criminal law - 2020.
75
The ordonnance of February 2, 1945, relating to delinquent children poses the principle of criminal responsibility based on discernment, understood as “the capacity to understand and to want,” to use the expression borrowed from the Laboube judgment of December 13, 1956. This question is left to the judge. Now, with the ordonnance of September 11, 2019, there is an additional condition: the age of the minor. It is a question of establishing a threshold for the minor’s capacity of discernment. The age of thirteen is now a threshold for presumption: below this age, a lack of discernment is presumed, and beyond this age, it must be proven by the public prosecutor. However, whereas the texts do not specify it, the presumption must be considered “simple”: as before, it will remain for the judge to decide, but within a more limited legal framework. It is especially important not to confuse this new age threshold with the minimum legal age threshold from which a sentence can be imposed on a minor (called “the age of criminal capacity”). This threshold, put in place as of the ordinance of February 2, 1945, is maintained at thirteen. It is also reinforced within the framework of the new system of applicable sanctions. The reform therefore brings the age threshold (thirteen) of criminal capacity into line with that of criminal minority. This situation begs questions because it reproduces the ambiguities of the past and leads to new confusion within the legal regime applicable to minors. In these circumstances, it would have been more appropriate to reserve criminal irresponsibility only for “infans” (seven years old). The solution adopted, which consists in affirming the criminal irresponsibility of the minor on the basis of a system of “presumed lack of discernment/lack of discernment to be proven,” in connection with the pivotal age of thirteen, is highly prejudicial to the criminal law of minors.
Réseaux sociaux