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ARGENTINA | 03-05-2024 11:35

Off the grid and immune from prosecution: Juvenile delinquency in Argentina

Recent high-profile violence involving minors has put juvenile delinquency in the spotlight once again and President Javier Milei’s government says it wants to lower the age of criminal responsibility.

The prime suspect arrested for the murder of Bruno Bussanich, a 25-year-old petrol station attendant murdered in early March in Rosario while he was at work, is a 15-year-old teenager. While there is no second chance for the victim, according to Argentina’s current legislation, nobody will be held accountable for Bruno’s life. 

The minor will not be subject to criminal liability. This is established by the applicable law of the Penal Regime for Minors (Law 22,278, as amended by Law 22,803), approved in 1980, during the 1976-1983 military dictatorship. 

With the debate over lowering the age of criminal liability back on the table (the dilemma never really goes away due to media coverage of such cases) and the promise of a bill to amend the Juvenile Penal System – which Justice Minister Mariano Cúneo Libarona recently announced is ready to go to Congress – it seems like the right time to talk about a regime which evidently is not working properly.

 

‘Special protection’

“There are a lot of crimes for which people under 18 cannot be held responsible. The notion is that the minor is still growing up – acquiring ethics, morals, a sense of duty. Therefore, they require special protection,” said former security minister Sabina Frederic. 

“The current law is fairly limited and has plenty of [valid] criticism because it’s not up to the circumstances and complexities of [the] present day; it’s not just supposed to be about how to punish, but about how to prevent. The issue raised by the legislation is that minors under 16 fall outside this criminal system,” the anthropologist stated.

“The current law is for protection. Under-16s are not subject to the criminal system like a grown-up, but to protective measures. If they are [guilty of] serious crimes, they are punishable after they turn 16; they are tried, but penalties must be lower,” said former prosecutor, lawyer and criminal law professor Manuel Garrido.

“The legislation is antiquated because it’s a residue of the idea of a minor’s incapacity. A sort of paternalism. International law establishes certain measures favourable to children since they are considered persons undergoing development,” added Garrido, the president of the Innocence Project Argentina NGO.

The lawyer highlighted, for instance, the United Nations Convention on the Rights of the Child, to which Argentina is a signatory. In Article 37, it provides that “neither capital punishment nor life imprisonment … shall be imposed for offences committed by persons below 18 years of age,” and that the “child’s best interest” should be taken into account. 

“Children should have more rights than adults. It’s not about innocence, but about the protection of their rights,” argued Garrido, a former national deputy. 

A report by Argentina’s National Criminal Statistics Office, published in 2022, organising the data of those charged in cases of premeditated murder in 2020, showed that, out of a total 3,083 murders, 324 were committed by people between 15 and 19 years old (there were 901 unidentified perpetrators, and thus the number could be higher). 

Last year, in 2023, 1,767 criminal cases were opened against minors in Buenos Aires City, according to data from the General Database of Children and Teenagers of the Supreme Court. Out of that total, 54 percent were crimes committed by youths between 16 and 17. Thus, the other half (the remaining 46 percent) were committed by minors under 15.

The age of criminal liability in Argentina, 16 years old, which seems to carry consensus in terms of “adult matters” around this country, since it is also when teenagers can first vote, is among the highest in the world. 

“A minor who has not yet turned sixteen (16) years old is not punishable,” reads Argentina’s Penal Regime for Minors. “Neither shall be any minor under eighteen (18) years old, in terms of crimes for private injuries or punishable by prison sentences of up to two (2) years,” it establishes. 

Looking at the region, Uruguay’s criminal liability age is 13, Paraguay’s 14 and Mexico’s 12. In Europe, Spain and Italy established it at 14 and France at 13. In some European countries, the minimum age to pay for crimes is 10 years old or under.

“I believe it’s a reality that minors, until they reach a certain age, are not fully aware of the consequences of their actions or the degree of seriousness; however, the age of criminal liability in Argentina is not explainable at all,” said criminal law specialist Ramiro Salaber.

“In fact, in many countries it’s different. Fifteen-year-olds are not subject to liability for any crime. They do something terrible, and what are the consequences? Twenty-four hours later they’re home,” he added.

“The link between criminal decisions related to age and alleged psychological features of the subject does not stand up to analysis,” agreed former UNICEF advisor and criminology professor, Emilio García Méndez. 

“These decisions have to do with criminal policy which, a posteriori, sought scientific legitimacy, laying a patina of legitimacy on what was actually a political resolution by the legislator. Sixteen years of age refer to a decision which, originally, the [1976-1983] dictatorship had placed at 15 and then under pressure by minor judges, this was raised to 16,” recalled García Méndez, the author of Historia y futuro de la cuestión penal juvenil (“History and future of the youth criminal question,” 2019) and La cuestión de la responsabilidad penal de los adolescentes (“The question of teenagers’ criminal liability,” 2004).

 

Due process

The 2022 edition of the government’s “Map of Children and Teenagers with Criminal Intervention in the Argentine Republic” provides data by province of the ages of detainees. In Córdoba, for example, out of 1,811 minors with cases opened, 38 percent were teenagers aged 13 to 15. In Misiones, out of 1,173 cases, 10 percent of detainees are up to 12 years old, 36 percent between 13 and 15 years old, and 48 percent between 16 and 17 years old. In Salta, out of 2,106 minors with cases opened, 16 percent are up to 14 years old; 29 percent between 14 and 15 years old; and 54 percent between 16 and 17.

The data coincides on several points. Firstly, minors with criminal cases account for a much lower percentage out of the total number of people charged. Secondly, most teenagers with cases opened are between 16 and 17 years old. Thirdly, there are many children under 16 facing cases who, because they are immune from prosecution, will not pay for their crimes. 

The problem is that – because they are immune from prosecution – they will not go through due process and therefore, it will never be known whether they are guilty or not guilty as charged.

“Minors under 16 are the only human beings who may be imprisoned but not subject to trial. The fact that they are immune from prosecution means they are not entitled to that due process. It will never be established whether that minor accused of a crime is guilty or not guilty,” explained García Méndez. “In some cases, they are imprisoned, placed in an institution and they cannot go out of their own free will, without knowing whether or not they are innocent. In practice, with minors aged 16, the discretion of judges is absolute.”

The entry of minors “into the criminal circuit increases the chances” of youngsters slipping into long-term criminality, said Professor Ángela Oyhandi.

“Naturally, I know that teenagers aged 14 [and under] can understand the unlawfulness of their actions, but my rejection of the lowering of the age of criminal liability is based on the evidence of the inability of institutions in the system to meet their objectives: providing education, accountability and integration,” added Oyhandi, a researcher of the Universidad Nacional de La Plata. “Adding new contingents to this punitive scheme can have the opposite effect: professionalising and consolidating very young people in the world of crime.”

A report by the Centre of Latin American Studies on Insecurity and Violence of the UNTREF University (CELIV - UNTREF) supports Oyhandi’s position. Their archive shows that imprisoned minors are more likely to reoffend in the future, compared to adults doing time after they turn 18. 

Data indicates that “among those who stated they have been incarcerated previously, they were largely in custody in juvenile institutions in their youth, left home before 15 and had best friends who committed crimes,” among other features, said the report. However, the same article provides that “judges rule on the past and never on the future,” and thus tomorrow’s possibilities have no place in a trial.

“An important question is raised: how to prevent children from committing serious offences. We have to try to make changes beforehand to prevent serious events from occurring, with the help of prior protective measures. In that case, devices are not about security or punishment, but about socialisation, strengthening the bonds with the education system,” Frederic suggested. 

“What happens with these minors who commit serious crimes – like the case of the 15-year-old who murdered Bruno – is that they are locked up. They are institutionalised, not ‘let loose.’ We have to combat the idea that a teenager under 16, because they are not punishable, is free. Now, the truth is that Argentine legislation does not make it clear what to do, not so much in terms of the sanction, but it does not establish how to work to prevent this type of event,” added the national security minister (2019-2021).

Whatever side of the debate, the question of conscience remains ever-present.

“A child aged 15, 14 and even 12 has a conscience. Maybe, at any rate, it would not be advisable to impose life imprisonment on a 14-year-old child. But they do have to be punished for serious offences. A teenager aged 17 robs a kiosk without violence, theft, and is not punishable, because the penalty can only occur for serious crimes. A youth of that age already has full consciousness of these things,” opined specialist Ramiro Salaber.

“I believe this is one of the multiple factors why in Argentina we have so many crimes committed by minors. In fact, sometimes grown-ups send minors to commit certain crimes, getting on a motorcycle to rob, as has been the case lately. It doesn’t matter, they’re not punishable,” said Salaber.

 

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