In its presentation In the Senate on May 15, the Chief of Staff, Nicolás Posse, referred to a bill to lower the age of imputability that the Ministry of Justice is working on. “An adult crime deserves an adult sentence,” said the official.
Days before, in a interview On Radio Miter, the Minister of National Security, Patricia Bullrich, had spoken about the project to lower the age of imputability: “The age is still being discussed, if it is 14, if it is 13 as it is in Uruguay, if it is 12 like in Brazil.”
What is the current age of imputability? Are there different regimes for adolescents? How do they work in Argentina and other countries in the region? What do organizations that work for the rights of girls, boys and adolescents say? We tell you in this note
What do the concepts age of imputability and juvenile criminal responsibility mean?
The age of imputability is the lower limit from which adolescents can be tried by Justice and imprisoned in prison.
“In more academic terms, a differentiation is made between imputability and juvenile criminal responsibility: the age at which a person enters the adult criminal system would be full imputability, and the age at which he or she enters a specialized system for minors – which has much lower penalties for the same crimes – would be juvenile criminal responsibility,” he told Checked Sebastián Vázquez, political scientist (UBA) by the social research team of the Fundación Sur.
For its part, Fabio Fallavelli, lawyer from the Criminal Policy and Violence in Confinement team at the Center for Legal and Social Studies (CELS), explained to this medium: “We must separate two concepts, which are the minimum age of criminal responsibility and the possibility of establishing a system of justice with a differentiated approach for minors, which is usually called juvenile criminal jurisdiction.”
The specialist indicated that once the minimum age of criminal responsibility has been determined, under which a minor under 18 years of age can be subjected to criminal proceedings, what must be established is a “special justice regime to deal with boys and girls who are in conflict with criminal law. This is so, because the Convention (on the rights of the UN child) establishes and reinforces a whole series of precautions and guarantees to protect boys and girls.”
What is the age of imputability in Argentina?
In Argentina, the Minority Criminal Regimeenacted in 1980, during the last military dictatorship, established that the age of imputability is 16 years, that is, minors under that age cannot be tried.
However, Adolescents between 16 and 18 years old are also not judged by the same system as adults. Only those who commit crimes with sentences greater than 2 years (for example, intentional homicides) are punishable (that is, they deserve punishment), but they can only begin serving their sentence in prison at the age of 18. Until that time, these minors may be deprived of their liberty in specialized institutes called Centers for the Reception and Containment of Minors.
In response to the query of Checked, the judge of the Oral Court for Minors No. 2 of the Federal Capital Diego Freedman, explained: “In Argentina the age of imputability is 16 years. Below, there is no liability for any crime. Between 16 and 18 are responsible for crimes with prison sentences of more than 2 years. They are not responsible for crimes of private action, such as libel, nor for crimes punishable by a fine or disqualification, nor for crimes punishable by 2 years or less, such as simple theft, simple damage, for example.
Vázquez warned that in Argentina, “although the Minority Criminal Regime says that people are criminally liable from the age of 16, in article 2 it establishes that if the minor is found in a situation of lack of resources – due to poverty or due to moral or material vulnerability – the judge will be able to dispose of it, that is why we have prisoners under 16 years of age.”
According to the National Survey of Juvenile Penal Devices and their Population of the Secretariat of Children, Adolescents and Family, In the first half of 2023 there were 2,407 minors in specialized detention centers, of which 1,022 were under 16 years old.
What is the age of imputability in Uruguay and Chile?
Article 34 of Penal Code of Uruguay establishes: “He who carries out the act before reaching the age of 18 is not attributable.” For those under 18 years of age, the Code of Childhood and Adolescencewhich indicates in article 69 what are the violations of the criminal law by adolescents between 13 and 17 years old.
In October 2014, in Uruguay, a plebiscite constitutional to lower the age of imputability to 16 years and to be able to judge young people between 16 and 18 years old as adults. However, it did not have enough votes to be approved.
consulted by Checkedthe lawyer and professor at the Faculty of Law at the University of the Republic, Uruguay, Martín Fernández explained: “Criminal liability is at 18. Below that age and from 13 in Uruguay there is the adolescent infraction system.” .
And he added: “Yes, they can respond from the age of 13 for infractions, but in a different system with different sanctions. It has to be a different response from that of the adult world and in accordance with the Convention on the Rights of the Child, that is, exceptional and brief.”
In Chile the age of imputability is 18 years and there is a special criminal justice system, as in other countries, for those over 14 years of age.. The Ley of Adolescent Criminal Responsibility (Law 20,084) indicates that “adolescents between 14 and 17 years of age who are responsible under the criminal law have the right to free and specialized defense, and in the event of being sentenced to custodial sanctions, they will not be referred.” “To adult prisons, but to special centers for adolescents.”
Then, he explains that “they receive a set of guarantees, such as access to education and drug and alcohol rehabilitation programs.”
What is the situation of adolescents in conflict with the law in Brazil?
The age of imputability in Brazil is 18 years old, as indicated in article 27 of the Brazilian Penal Code: “Children under 18 years of age are not criminally liable, being subject to the rules established in the special legislation.”
For minors under 18 years of age, “socio-educational measures” are established and vary from 3 years of hospitalization to participation in educational and cultural projects. The crimes are the same as in the Penal Code, but minors under 18 years of age are not imprisoned, but rather apprehended,” he explained to Checked the brazilian anthropologist Luiz Eduardo Soares. These measures are contemplated in the Statute of the Child and Adolescent and not in the Penal Code.
For its part, Vivian Calderoni, coordinator of the Igarapé Institute of Brazil, said: “In Brazil, the criminal age of majority is 18 years. The Statute of Children and Adolescents establishes that children from the age of 12 can serve a sentence for committing infractional acts (criminal conduct).”
And he explained that the planned measures are: warning, obligation to repair the damage, provision of services to the community, assisted freedom, insertion into semi-freedom, confinement in an educational establishment (a measure of restriction of freedom). “The units destined for the semi-liberty and internment regime are carried out in establishments exclusively for young people and separated by sex. The maximum period of hospitalization is 3 years,” Calderoni concluded.
Recommendations of Unicef and the United Nations Convention on the Rights of the Child
“According to art. 40.3.a of the Convention on the Rights of Children and Adolescents, States are obliged to determine a minimum age with respect to which children cannot be charged or subjected to any criminal process. That is, their actions are not punishable. UNICEF’s international recommendation on the matter is that this minimum age should not be less than 14 years, but should be as close as possible to 18 years.”, warned Fallavelli of CELS.
UNICEF, in its document ‘Ideas to contribute to the debate on the Juvenile Criminal Justice Law’, warns: “In Argentina, the reform of the juvenile criminal justice system does not require lowering the age of punishment, something that could be interpreted as a setback in terms of human rights and as a regressive measure. There are international experiences that have shown that lowering the age of punishment has not been an effective measure in the fight against insecurity.”
Furthermore, the United Nations Convention, in its ogeneral observation number 24 regarding the rights of the child in the juvenile justice system, explains that “State parties must establish a minimum age of criminal responsibility,” and urges that they not raise it and that it be as close as possible to 18 years. Furthermore, he warns that “maturity and the capacity for abstract thinking are still evolving in 12- to 13-year-olds.”
