Comments by a magistrate about the need to amend criminal laws related to minors has reignited the debate over the age at which minors should be held criminally responsible for their crimes. 

Speaking during ongoing proceedings against two 16-year-olds charged with assault, Magistrate Donatella Frendo Dimech said that although 16-year-olds are allowed to get married, run for office and even vote in national elections, they are nevertheless considered minors when it comes to criminal punishment.

The magistrate’s comments prompted a response from Prime Minister Robert Abela, who said, "The reason our law grants an attenuation to minors is due to considerations tied with the charter of the Council of Europe”.

What does Maltese law say?

The age of criminal responsibility, or the age at which a person can be charged with a criminal offence, is established in articles 35 through 37 of Malta’s Criminal Code. 

The law sets the minimum age of criminal responsibility at 14, meaning that no person under that age can be charged with a criminal offence. However, the law also allows for the child’s parents or guardians to be held responsible for the child’s offence.

Children between the ages of 14 and 16 can be held charged with a crime, but may also be exempt from criminal responsibility if the courts decide that the offence has not been committed with malice, or what the law describes as mischievous discretion.

In order to establish that there is mischievous discretion, the courts need to determine that the child is conscious of their wrongdoing and of the impacts of their actions. In such cases, the child may be convicted of a crime but will receive a sentence which is decreased by one or two degrees.

Children between the ages of 16 and 18, on the other hand, do not have any exemption and are automatically considered to be aware of and criminally responsible for their actions, in the same way as adults.  

The law, however, grants them greater leniency in sentencing compared to adults, and they will receive a sentence that is decreased by one or two degrees - the same leniency afforded to those aged 14 to 16. 

What do 'decreased degrees' mean?

Maltese law sets out a scale of imprisonment, consisting of fifteen degrees of punishment, the highest being a period of imprisonment ranging from 10 to 40 years, and the lowest being from one to three months. 

A decreased sentence means that if an adult were to be convicted with a punishment of the first degree (10 to 40 years imprisonment), a minor would see their sentence decreased to either the second degree (eight to 30 years imprisonment) or the third degree (seven to 20 years) for the same crime.

How has Malta’s law changed?

These age thresholds were established in 2014, when Malta’s age of criminal responsibility was raised following recommendations by the United Nations Committee on the Rights of the Child.

Malta’s previous minimum age of criminal responsibility stood at nine, meaning anyone over the age of nine could be charged with a crime. Children between the ages of nine and 14 could be held criminally responsible in cases where mischievous discretion was proven. Youths between the ages of 14 and 18 were tried as adults but would receive reduced sentences.

What does international law say?

Lawyers who spoke to Times of Malta explained that European or international legislation does not specify how old minors should be before they are held criminally responsible, or whether they should be subject to decreased sentences.

That means it is up to each country to establish its own minimum age of criminal responsibility. 

Nonetheless, the UN Convention on the Rights of the Child does establish some parameters within which persons under 18 can be tried or sentenced. 

The convention states that offenders aged under 18 should not be sentenced to death or life in prison without the possibility of parole.

It also stresses that the “arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time”.

How does Malta compare internationally?

An analysis carried out by the Child Rights International Network suggests that Malta’s minimum age of criminal responsibility is broadly in line with several other European countries, where the minimum age is also set at 14. 

However, several countries have lower ages of criminal responsibility.

In Switzerland, children over the age of 10 can be charged with a crime, whilst Belgian and Dutch law sets the minimum age at 12.

In Ireland, children under the age of 12 cannot be charged with a crime, except in cases of violent crime such as rape, murder and manslaughter, in which case children as young as 10 can be prosecuted.

The UK has similar provisions, with Scotland and Northern Ireland both setting a minimum age of 10. 

Europe’s highest minimum age of criminal responsibility is set at 15, with several Scandinavian countries adopting this limit, together with Poland and the Czech Republic.

What justifies not treating 16-year-olds as adults when it comes to crime?

Speaking to Times of Malta, Children’s Commissioner Antoinette Vassallo pointed to the fact that a 16 or 17-year-old is still considered a child in both in the eyes of local law and of the UN’s Convention of the Rights of the Child.

She argued that “children are impressionable by nature, more vulnerable and susceptible to negative pressure and the court is duty bound to take this into consideration since children are still in their formative years. 

“Even though children are given more responsibilities as they get older, the ages between 16 and 18 are crucial and act as a transitional period from childhood to adulthood. This is a very critical period in which children still need protection and support”, she said.

These concerns were echoed by a lawyer specialising in child’s law who spoke to Times of Malta.

“When one deals with minors one has to balance restorative justice with juvenile law and make sure not to get minors entrapped in the criminal system when they could have been rehabilitated instead," the lawyer said.  

Criminal lawyers, on the other hand, had a slightly different view, saying that although it was justified for minors to receive decreased sentences, the age thresholds for such punishments are in need of revision.

Today’s 14 and 15-year-olds are more aware of the impacts of their actions than ever, so the court’s ability to deliver stricter sentences should reflect this reality, they argued.

One legal concern flagged by Vassallo is the fact that minors can be tried as adults, if they are accused together with adults of the same offence. Her office has been pushing to address this anomaly, she told Times of Malta.

A prominent example is the charges brought against the El Hiblu 3, a group of three teenagers aged 15, 16 and 19 charged with hijacking a ship in 2019. All three are being charged before a magistrate's court, despite two of them being minors, with human rights NGO Aditus also noting that they were held at an adult wing of prison while in preventative custody for seven months.