Javier Milei's Minister of Justice, Mariano Cúneo Libarona, announced that this year he will present a project so that minors can be sentenced from the age of 14, without distinction according to the crime committed.
This Sunday (14), during an interview with Radio Rivadavia, the minister declared that “there are two systems in the world. You have the Swiss or English criteria, which divide according to crimes and classify according to age. It starts up to ten years. But in principle, from everything I've read, I prefer something without so many twists and turns.”
For Cúneo Libarona, from the age of 14, “regardless of the specific crime committed, the boy already presents deviant behavior, socially devaluable behavior (…) And this is [idade] which supports almost the 30 projects that I have on my desk, which were presented and were not legislatively accepted”.
In Argentina, according to the Minority Penal Regime promulgated in August 1980, the age of imputability was established at 16 years old, that is, minors are not punishable.
However, teenagers between the ages of 16 and 18 are also not judged by the same system as adults. Only those who commit crimes with sentences of more than two years (for example, intentional homicides) are punishable, but only at the age of 18 can they begin serving their sentence in prison. Until then, these minors may be deprived of their liberty in specialized institutes.
For Argentine criminal lawyer Francisco Oneto, “the reason why minors are not punishable is because they are considered to have a lesser capacity for discernment. This can be discussed because, for example, in civil law, discernment for illicit acts is acquired at the age of ten, that is, the ability to know whether you are doing good or evil”.
In Brazil, with the entry into force of the Penal Code in 1940 and even after the reform of the General Part in 1984, it was established that minors under 18 years of age are absolutely imputable, even though they may actually have discernment.
For young people aged 12 to 18, the Child and Adolescent Statute (Law No. 8,069/90) provides for the application of socio-educational measures, consisting of warning, obligation to repair the damage, provision of services to the community, freedom assisted, semi-freedom or hospitalization, and the application of protection measures to children (people under 12 years of age) who commit acts defined as a criminal offense.
The Argentine minister argued that the reduction in the age of imputability will apply in general, and not just to certain crimes, “because whether it is theft, theft, abuse or anything else, it already shows a personality that deserves attention and punishment. So, dividing by crimes, and leaving some without punishment or education, doesn't make sense. This boy deserves care, attention, re-education, work and training.”
According to Cúneo Libarona, the reform that the Government wants to promote is not limited to punishing minors who commit crimes, it is more comprehensive and includes a social dimension. Therefore, he proposes two ways of working. On the one hand, a “different procedural system”, considering that a minor cannot be subjected to a trial similar to that of an adult, and on the other hand, appreciation of the minor for society by giving him “tools so that he can reintegrate in society”.
“There is no point in minors going to a prison where there is capacity for 200 children, but 350 are housed. They leave worse than when they entered (…). What I want to emphasize in minors is re-education, resocialization, the obligation to study, the obligation to work”, he added.
Regarding the deadline to implement this change, the minister guaranteed that it is at the top of the list of tasks that he will seek to accomplish during this year.
The case of the girl Morena Domínguez
In August 2023, in the days before the primary elections (known as PASO) in Argentina, Morena Domínguez, a girl of just 11 years old, was murdered by two thieves who stole her cell phone when she arrived at school in Villa Diamante, in the district of Lanús .
The sequence was recorded by a municipal security camera which became the main evidence in the case, as it was observed that Morena fell to the asphalt when approached by the two robbers who got off the motorcycle to steal her belongings.
According to the preliminary results of the autopsy carried out at the judicial morgue in Lomas de Zamora, the girl died as a result of “a strong blow to the abdominal region” which caused damage to her kidneys and liver and suffered “internal bleeding”.
After the crime, seven suspects were detained, one of them is a minor under 14 years old, which once again raised concerns about the age of imputability.
When consulted about the detained minor, the then candidate for president Javier Milei, said that what would have to “be judged is the crime”. “This is a murder offense. He has to pay for being a murderer,” he emphasized.
Increase in child and youth crime
The latest data from the biannual report presented by the General Bank of Children and Adolescents (BGD) of the Supreme Court of Justice of the Nation, which counts the number of children and adolescents with criminal proceedings initiated and/or measures depriving them of liberty, issued between the 1st of January and June 30, 2023, indicate that there has been an increase in the participation of minors in criminal acts.
In the first half of the year, 1,109 criminal cases were initiated against 986 children and adolescents, which represents, respectively, 19.5% and 21% more than in the same period of the previous year.
Nine out of every ten children and adolescents against whom criminal proceedings have been initiated are men, mainly Argentineans (95%) and residents of the province of Buenos Aires (58%) and the Autonomous City of Buenos Aires (41%). The average age is between 16 and 17 years old (56%).
Of the registered crimes, those against property predominate (84%), especially various types of theft (78%). The remaining 16% correspond to crimes against sexual integrity (34%), against public administration (25%) and against people (9%), among others. Of this last category (16 cases), the crime of homicide was investigated in five (two attempted and three completed).
The report details that 60 children and adolescents had some judicial measure depriving them of their liberty. Both measures in closed socio-educational centers and admissions to hospitals or other restricted centers are counted, a number that represents 6% of the total number of children and adolescents with legal proceedings.
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