According to Italian Law, the minor has not reached sufficient intellectual development in order to comprehend the social-ethical value of his/her actions. For this reason, Italian Criminal Law excludes criminal imputability for those individuals who are under-age. In other words, being underage excludes any kind of criminal imputability. Under this circumstance, it appears important to distinguish minors under fourteen and minors between fourteen and eighteen.
Generally speaking, in any case, the minor under fourteen can be imputable. In particular, whatever the criminal offence and the intellectual development are, the minor under fourteen will never be imputable or sanctioned. On the contrary, minor between fourteen and eighteen is imputable only in case the judge assessed he/she was of sound mind at the time of the fact.
As it was previously affirmed, in relation to minors under fourteen, a complete presumption of non-imputability applies. Then, whatever the criminal offence and the intellectual development are, the minor will not be subject to criminal proceeding. In fact, even if the minor has committed a murder, the sole fact he/she is under fourteen states that he/she cannot be subjected to a criminal proceeding because he/she was unsound of mind.
However, even if a minor under fourteen is not imputable, he/she might be subjected to a security measure. In fact, whenever the minor has been judged socially dangerous, security measures might be applied. In particular, with the purpose of avoiding further criminal acts, the following security measures might be activated:
Italian Criminal Code affirmed that minors between fourteen and eighteen are fully imputable only if he/she has been found sound in mind at the time of the fact. Then, it is for the judge to assess whether the minor was in full possession of his/her mental faculties.
In the event the minor has been found guilty of a specific crime, the sanction will be reduced compared to a standard sanction which targets an adult. Furthermore, even in this case the judge will have to assess whether the minor might be considered socially dangerous.
Now, it appears relevant to analyse most important children rights in the following contexts:
Right to Familiar support – Familiar support has to be referred to the economic aspects of the physical and psychological development of the child. However, according to last judicial interpretations, family support shall extend to those needs connected with current social-economic context. In particular, family support must include means of communication, transport, sport, leisure time, culture, et cetera.
The right to education – Children have the right to receive education according to their inspirations and natural inclinations. Then, children have the right to complete their mandatory study programmes as well as university studies if they require it.
The right to moral assistance – Moral assistance means the participation of both parents to children everyday life with the purpose of advising and listening and, in general, supporting them.
The right to the recognition – The child born from an unmarried couple has the right to be recognised by the father which cannot to recognise the child. In the event that the father refuses to recognise the child, a recognition paternity action might be carried out with a subsequent DNA test.
The right to grow up in a family – The so-called “biparentality right” affirms that the child has the right to stay with both parents for equal time periods; even after couple separation. Then, both spouses must not remove the child against the other spouse will; in this case, the first spouse may lose child care.
Children rights in respect of the State and the Institutions
The right to a family – States must enforce parents’ right and duty to ensure children proper relationship with couple members: even after couple separation or if they live in different countries.
The right to privacy – Children have the right to privacy and nobody shall control their correspondence or spying his/her private life.
The right to a well-balanced adoption – States must always control that, during the adoption process, child-oriented decisions will be taken. Also, Institutions need to enforce children right to have a family checking the conditions of the adoption and ensuring moral and physical conditions of the child.