ORIGINAL ARTICLE
SALLES, Claudia Regina de Oliveira [1], BARROS FILHO, Jorge [2]
SALLES, Claudia Regina de Oliveira. BARROS FILHO, Jorge. Criminal Identification in Adolescents. Revista Científica Multidisciplinar Núcleo do Conhecimento. Year 05, Ed. 10, Vol. 21, pp. 96-110. October 2020. ISSN: 2448-0959, Access Link: https://www.nucleodoconhecimento.com.br/law/criminal-identification
SUMMARY
The present work will portray the criminal identification in cases involving minors, which is an important action to confirm the identity of an individual accused of an unlawful act, evaluating what should be the measure taken to resolve this fact without hurting the rights and individual guarantees, considering that these minor individuals receive softer punishments in relation to an adult , because they are legally based differently in relation to an ordinary adult, so the conduct of an adult is seen as a crime, but when committed by a minor is considered an infraction. In this sense, the Statute of the Child and Adolescent aims to preserve these minors from any unnecessary exposure, so it provides that criminal identification does not occur if minors present their civil identification, exceptions occur in case of doubt about the veracity or lack of this type of document. In view of this theme, the objective is to demonstrate with this study the possibilities in which the criminal identification of adolescents can be performed, through a qualitative research based on bibliographic, using articles, books, legislations and other materials that portray this theme and thus finally achieve the understanding of the procedures adopted when involving a minor offender. Therefore, it was possible to notice the demand for an expansion of the hypotheses of criminal identification of minors, in which the legislation will treat these cases with greater specificity, determining all possibilities and procedures.
Keywords: Criminal identification, minors, infraction, veracity, civil identification.
1. INTRODUCTION
The criminal identification of the defendant is the basic procedure of criminal prosecution. The Brazilian Code of Criminal Procedure lists this procedure as one of the measures that law enforcement authorities must take immediately when detecting a crime or criminal offence (Articles 6 item VIII).
This procedure can bring more simple and important evidential actions to the competent authorities to investigate cases involving minors. It is important to study these cases to identify crimes committed by children and young people so that they can take appropriate measures in accordance with the Statute of the Child and Adolescent (BOCATO, 2013).
It is necessary to take into account that young people under the age of 18 are still in training and are not fully able to understand what is right and what is wrong. This age is included in the biological standard, thus, Article 228 of the Federal Constitution establishes that minors under eighteen years of age are criminally responsible, in the light of the rules of special legislation.
Given the above, based on the current legislation, aims to answer the following problem: Is the criminal identification action in adolescents under the age of age legal? Investigate the legality of criminal identification in underage adolescents and identify the procedure most used according to our legal system.
It is indispensable that the operators of the law, public servants especially those who work with public security understand the process of criminal identification before a minor individual, which is supported by several laws that give him differentiated support, understanding this process of criminal identification may or may not occur with this. Thus, working on this theme is essential for both law operators and society in general, so that they can determine which conduct would be most conducive to the case, protecting the individual rights of the minor.
2. CRIMINAL IDENTIFICATION
Life in society makes individuals have a need to differentiate themselves from the other ones, especially those who perform crimes. Thus, individuals over time sought methodologies to identify those considered as antisocial of those considered good citizens, including as a way to protect themselves. Several types of processes arose along with the need or as one became insufficient or out of date the existing methods for the individualization and identification of people.
For Robles (2004), recognition is a process or set of processes aimed at establishing the identity of a person. On the other hand, Tourinho Filho (1999) defined it as a set of data and signs that characterize a person. Because forensic science is the study of the authorities responsible for elucidating crimes, it can identify criminals in various situations (VELHO; GEISER; ESPÍNDULA, 2017).
According to Araújo (2006) the first mode of identification used by both the civil and criminal environment was nominal. With the preparation of a form with the name of the accused and some of its characteristics, this methodology is still used today, and in more detail when the indictment of the individual occurs in the police stations, by completing the Antecedent Scan (MIRABETE, 2000). Therefore, many criminals make uses of nicknames or false names to avoid the discovery of their real names and especially their advertising, and because of this fact the nominal identification method can not be used in isolation, it is very important that it is associated with dactyloscopic due to the danger of being in front of a counterfeiter whose name is not true. In addition, there is also danger in relation to homonyms because different people have identical names, causing possible confusion in the civil sphere.
The name is a form of personalization in society even after death, which appears as one of the rights of personality in civil law. The first historical record of the use of compound names dates from 2850 a.C., when a Chinese emperor ordered the use of first or last names to better personalize people (VENOSA, 2003).
Currently, as many criminals use nicknames to avoid discovering their real names, this method should not be used in isolation, mainly due to the danger of impersonating their counterfeiters. The displayed name is not the real name and is ideal for associating it with fingerprint methods.
In a second moment, the process used was that of Ferrete, a mode of human identification considered extremely cruel, he used a red-hot iron to mark the body of the criminal or the fugitive slave with the letter indicative of the crime and the country (ARAÚJO, 2006).
The use of the ferret has two purposes, punishment and identification. It is an ancient custom, used even during the imperial trial, including the use of pliers, tweezers, flagella and other tools to remove body parts such as breasts, fingers, penises, nails and identify people by missing parts, and because it is considered inhumane, this practice has also been abandoned.
However, this can be less cruel than that of mutilation, used in the Middle Ages, with the use of its own instruments to tear out pieces of tissue from the body (SOBRINHO, 2003). This method is still used in the Middle East with the aim of marking and punishing the offender according to the crime, however there are several cases in which mutilation is done regardless of the type of crime (ARAÚJO, 2006).
The fourth process used throughout history was with the use of tattoos, influenced by an indigenous custom, also known as the Chroromium System, was suggested by Jeremy Benthan from 1832, who initially proposed that the tattoo be made on the right forearm with letters that could civilly identify the individual and numbers for criminal identification (ARAÚJO, 2006). At the time the mode of identification was arranged as an advance, but gradually became ineffective due to the natural transformations that the human being undergoes, Brazil implemented this process in 1891.
Anthropometric was one of the processes that followed in history, based on anthropology investigations were carried out under anthropometric details of a criminal, according to the theories of the psychiatrist Cesare Lombroso, who determined that the crime was due to the criminal nature that the author possessed, that is, it was born with traits that were different from honest individuals. These had traces such as the size of the skull, the occipital fosseta, and others, factors that made them inferior, and then inadequate to live in society (SHECAIRA, 2008).
This methodology of Cesare Lombroso generated multiple criticisms because it could not be used with children under 21 years and over 65 in view of the body changes that occur at these ages, and still had cases of identical twins. In addition, certain parts of the body do not have precise measures, and generated embarrassment, vexatiating situations (SOBRINHO, 2003).
Sobrinho (2003) explains that signage photography, front and profile, is still used in criminal records and was architected by Alphonse Bertillon, the same author of the anthropometric method that was previously laid out, remarkable that this author assimilated the image of the individual to crime.
According to Araújo (2006) amoedo’s dental process emerged in 1897 as a scientific tool from the Cuban Oscar Amoedo Valdés, however, some factors generated its ineffectiveness at the time, such as the lack of dental treatments, teeth were pulled out, making it difficult to identify and subsequent studies, in this sense, the method is still used to identify charred cadavers, mummified and ossadas.
The ninth process is the Papilloscopic that is based on dermatogliphya, the study of the configuration of the lines and stretch marks of the hands and feet. Then there is the process of identification through DNA, the examination is complex, time-consuming, and uses expensive reagents, still needs to be performed by a competent professional, and is used in most cases where other methods may not be sufficient (SOBRINHO, 2003).
Iris identification was another process discovered, but it became more present for functional identification, in large companies, or even for the use of passwords or magnetic cards. However, this is difficult to store and confrontation, it becomes ineffective in the day-to-day (SOBRINHO, 2003).
When an ordinary individual is civilly identified he is the one who makes such a request in the Identification bodies and thus a registration with a General Registry (GR) number is generated for him/ her, which is noted in a document popularly known as GR or Identity Card.
There is sufficient scientific basis to use tytyloscopy as the main means of criminal identification, because it can be verified from the six months of existence of the fetus until the death of the individual. Thus, it has immutability, which means that once formed, digital design will no longer be changed; diversity, two fingers cannot match in its drawing, and; classification, you can classify drawings into basic types and subtypes (RABELO, 1996).
Currently when an identification process takes place through a police investigation, and if at the time of identification of the individual he does not present a valid GR, a criminal GR is generated for the sentenced.
Thus, in the identification agencies is generated a record with a criminal number for the individual indicted, linked to the file of his civil GR, making access to his criminal record easier to be accessed by the judiciary. It should be emphasized that only the identification bodies have this access.
3. LEGAL PRINCIPLES OF CRIMINAL IDENTIFICATION
Criminal Identification was regulated through Article 5 of Law 12.037/12 and can occur through the tytyloscopic, photographic process and collection of biological material to obtain the genetic profile, the latter was included through Law 12.654/12.
According to Sobrinho (2003) criminal identification cooperates with criminal procedural law enabling the knowledge or confirmation of the identity of the agent who committed the crime in investigation, and makes it easier to make it easier to make it easier to comply with the penalties arising from the crime committed. Moreover, in which it will serve as evidence made available to innocent individuals who can demonstrate that they are not the true perpetrators of the unlawful act, when there is a mistaken identity.
There is a determination that anyone who is civilly identified by any document will not be subject to criminal identification, however, Article 3 of the aforementioned Law establishes some exceptions when:
I – the document has erased or has evidence of falsification;
II – the document submitted is insufficient to fully identify the accused;
III – the accused to have separate identity documents, with conflicting information;
IV – criminal identification is essential to police investigations, according to the order of the competent judicial authority, which shall decide by letter or by representation of the police authority, the Public Prosecutor’s Office or the defence;
V – the use of other names or different qualifications is included in police records;
VI – the state of conservation or the time distance or the location of the dispatch of the document presented makes it impossible to complete identify the essential characters. (BRASIL, 2009)
According to Lopes (2007) this procedure endangers the effectiveness of the right not to produce evidence against himself, when the accused refuses to provide his fingerprints, for example, the judge will determine the compulsory extraction of office. Criminal identification must be carried out in order to avoid as much as possible the constraints and must be added to the records of the communication of the arrest in flagrante, or the police investigation, or other way of investigation, but can not be mentioned in prior atements or information not intended for criminal judgment, before the final transit of the sentence condemnatory.
The identification by photographic means, if rejected, in case of acquittal or non-offering of the complaint is provided to the subject to request removal from the file of the case or inquiry, provided that he presents evidence of his civil identification.
Regarding data related to genetic profile, these are stored in a confidential database, the National Database of Genetic Profiles, which was regulated by Decree 7.950/2013, which aimed to create an Integrated Network of Genetic Profile Banks, capable of allowing the sharing and comparison of genetic profiles contained in the banks of the Union, States and the Federal District.
Lopes (2007) explains that it is not favorable to trivialize bodily intervention, since it represents a wide violation of the privacy, physical integrity, and dignity of the human person, besides mortally injuring the right of negative silence. Several problems stem from this issue, where many cases use the “essential for investigation” statement without at least determining in what types of crimes this would be possible.
During investigations, both essentiality and judicial authorization are necessary so that abuses do not occur, in addition, a third requirement is defended by Nicolitt (2013), the informed consent of the accused, and Queijo (2012) strengthens this argument by noting that one cannot deny the principle that no one is obliged to produce evidence against himself, so collaboration is essential.
Thus, the refusal to cooperate cannot constitute a crime of disobedience, nor can coercive execution be accepted to the production of evidence. The Criminal Identification Act provides in its Article 5 that storage will take place in a database of genetic profiles, managed by an official unit of criminal expertise, these samples can not reveal somatic or behavioral traces of people. Furthermore, this genetic profile will be excluded from the database at the end of the period established by law for the prescription of the offense, or at a previous date defined in court.
It is remarkable that there was no regulation of the exclusion of the profile before the possible filing of the police investigation or absolutory sentence, so this project needs to receive certain criticisms, the collection of genetic material, in these perspectives, hurts human dignity. Furthermore, it guarantees ample possibilities regarding the collection of human material, and the exclusion of this only occurs when there is the prescription of the case, which is not favorable, since archiving or acquittal should authorize this exclusion.
Thus, there is no definition of the crimes that would be committed with a serious nature against the person to authorize the collection of this material and inclusion in the databases. Likewise, it does not clarify whether only convictions made to court with these characteristics may require such action, and, finally, there is no possibility of excluding data from those who have been convicted of such offences.
However, this project does not provide for the refusal of the investigated to supply the genetic material, as well as the consequences of such refusal. Therefore, it is understood that criminal identification has several specificities that have not received proper legislation, causing doubt to the judicial system, as is also the case involving minors.
4. CRIMINAL IDENTIFICATION INVOLVING MINOR
The Convention on the Rights of the Child, ratified by Brazil on September 24, 1990 and in force since October 23, 1990, determines that the child is every human being under eighteen years of age, except in the cases provided for in the law in which the age of majority is reached before.
Crime is a phenomenon that plagues society. In certain circumstances, in Brazil, this issue causes a dangerous prejudice, because it is known that the participation of minors is increasing, criminals use factors related to social class to greatly encourage the participation of minors (MONTEIRO; SANTOS JÚNIOR, 2007).
Saab (2017) explained that the increase in serious criminal activities of middle and upper class minors completely excludes the view that minors are required to act in this environment due to the lack of family infrastructure. Therefore, the reasons for the marginalization of adolescents are very broad and unknown, not limited to the lack of purchasing power.
Magna Carta stipulates that minors under the age of eighteen are subject to criminal liability, but special laws. In turn, the Criminal Law stipulates that minors under 18 years are not attributable in article 27, in this way, the Statute of the Child and Adolescent follows this rule and imposes disciplinary action on sanctions and other protective measures.
All conducts criminally typified as a crime or misdemeanor, when committed by a child or adolescent, is called an “infraction”. This is a special rule of the Right of children and adolescents, which with this differentiated designation expands the extracriminal character of the matter, as well as the care to be provided to this individual (DIGIÁCOMO; DIGIÁCOMO, 2010).
The objective of the (ECA – Child and Adolescent Statute) is to provide full protection to children and young people, given their special situation as a developing person and their conditions of integration, it is concerned with giving differentiated treatment of general legislation. According to the description of the Statute, there is no difference between the concepts of crime and infraction, and it should be considered that both belong to the category of illegal acts. The difference between these terms is due only to the fact that it is necessary to emphasize the special treatment of people under 18 years of age.
According to Trindade (1996) children and adolescents, in a sense, enthusiastically accept all the experiences they have experienced. This is always new in their lives. They cannot mediate between the impulse and the outside world, which explains the general non-accountability required by law, and lack sorority, an important requirement to add facts to its consequences. That’s why they should be prevented from being guilty.
Obviously, the mental abilities of young people are still developing, and the social environment in which they live affects their current and future personality. At this stage, individuals are not yet fully aware of their actions, especially illegal actions, which must be condemned by society and the judiciary. The awareness of breaking the law is very small and depends on the environment, friendship and relationship of these people with the family environment in which they live.
The Statute of the Child and Adolescent determines that any adolescent apprehended by force of court order or seized in flagrante of infraction will be referred to the competent authority. Thus, when there is a specialized police office to assist this adolescent and in the case of an infraction performed in conjunction with a larger one, the attribution of the specialized office will prevail, which, after the necessary measures and according to the case, will forward the adult to the police office itself.
It is noted that the criminal identification process handled by the ECA respects the fact that adolescents are subject to a differentiated legal regime.
The compulsory identification of art. 109 of Law No. 8,069/1990 comprises typoscopic and photographic individualization. The exceptions are presented in relation to distrust regarding the veracity of the document, it is also considered that the submission of an adolescent to vexor embarrassment is a crime provided for in Article 232 of the Statute (VERONESE, 2006).
But we have that it is not always possible to individualize two or more adolescents to measure the authorship of the infraction, despite the civil identification, unless through criminal identification, based on the principle of the founded doubt. In view of this, Cury (2010) explains the importance of performing this identification, considering the indisputable need to know the physical attributes of the eventual offender in relation to his identity, seeking to prove his/her participation, so it is not possible to properly investigate a case due to his age.
According to Elias (1994) the adolescent is being supportd as long as he has any document that identifies him, such as the birth certificate or identity card provided by the Secretariat of Public Security, and, in this way, it only matters that he is properly identified. In the exceptions allowed, when it comes to confrontation, they occur due to cases where minors already liable for infractions use false documentation, as provided by the author, which occurs with a certain frequency.
Cases are common where adolescents when seized attribute the identity of another individual, especially so that the practice of infractions is not properly in contact. Some even present birth certificates of close relatives, or even present themselves as adolescents, seeking to receive differentiated accountability (ROSSATO; LÉPORE; CUNHA, 2011).
Elias (1994) states that while one wants to avoid an act that could be vexatiating to the minor, causing even damage to the child’s right, one cannot fail to take the necessary measures to identify him correctly if there is doubt. In addition, the author points out that a minor will never receive punitive measures, so it is necessary to perform an analysis in each case to examine this need for compulsory identification, and this should occur without damaging the rights owed to them.
It is then noted that an adult will be identified criminally in certain situations, while the adolescent will be, at most, compulsorily identified in the hypotheses presented, and it is also noted that the ECA presents a certain omission as to the processes for carrying out this in cases of doubt founded and what should really be done with the material collected in the identification (photos, file…).
Therefore, it is noted the need to expand the hypotheses of criminal identification for adolescents, as well as the registration of this information in appropriate databases applying the provisions of Law No. 8.069/1990 and Law No. 12.037/2009, using such forms in such ways as the doubt based falls on one of the possibilities of Article 3 of the Criminal Identification Law, taking into account the instituted in the ECA.
5. METHODOLOGY
The present work follows a qualitative line, in which it deals with phenomena performing a hermeneutic analysis of the collected data. This type of research makes possible the understanding and interpretation of the phenomenon, considers the meaning that others give to their practices (GONSALVES, 2003).
Thus, it performs a reasoned through bibliographic sources such as books, scientific articles, journals, and texts extracted from the Internet, can describe or explain the theme, using a deepening in the desired area (VERGARA, 2006).
The basis for the eligibility criteria defined information from scientific publications, scientific journals and university websites provided by the database such as Scielo. However, it was decided to search for the latest information without time limit, so publications that do not reach the chosen theme or are incomplete, and duplicate publications or publications whose content is very similar to other selected work were excluded.
6. FINAL CONSIDERATIONS
Given the information mentioned above, it is understood that the Statute of the Child and Adolescent aims to provide a differentiated treatment to young people who have committed an illegal act, due to the fact that their personality is still developing and this suffers great influence from the environment in which they live.
In this sense, there is also a differentiated position for criminal identification, if this individual has any documents that prove his identity, they will have support so as not to go through other methods. It is important to identify it correctly, and compulsory identification will only occur under the permitted exceptions, especially when the minor responsible for the infringement used false documents.
However, it is remarkable that the ECA presents a certain omission in relation to the procedures for the identification of this minor in case of reasoned doubt. There is a need to cover and determine criminal identification actions for the minor, in which all situations that require identification and the methods used for each case are imposed, respecting the determinations of the ECA.
The present work fulfilled the proposed objective of demonstrating the way in which the criminal identification of a minor occurs in accordance with the legislation, thus, these will be submitted to the process only in certain cases. However, it is still of paramount importance to conduct further research in the area, especially to determine which identification processes are used, and whether there is compliance with the current standards.
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[1] Graduated (Graduated) in Letters Administration from UFG – Federal University of Goiás, and Academic of the 10th Period of the Law Course at UNIRG – University of Gurupi.
[2] Advisor. Law Degree; Specialization in Civil Procedural Law, Specialization in Court of the Procedural Jury.
Submitted: September, 2020.
Approved: October, 2020.
