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RIGHTS-ARGENTINA: Adolescents in No Man’s Land

Marcela Valente

BUENOS AIRES, Nov 6 2008 (IPS) - The recent murder of a man allegedly at the hands of teenagers has sparked a heated debate in Argentina between advocates of lowering the age of criminal responsibility and those in favour of a juvenile justice system in line with the United Nations Convention on the Rights of the Child.

The incident that revived the debate occurred on Oct. 20, when burglars who broke into a house in the upscale Buenos Aires district of San Isidro shot and killed the owner and left his17-year-old son seriously wounded.

The controversy broke out as soon as it was reported that two minors had been arrested in connection with the case.

Daniel Scioli, governor of the eastern province of Buenos Aires, called for an “in-depth debate towards reducing the age of criminal responsibility of minors involved in serious offences.” He pointed out that other Latin American countries, such as Brazil, Ecuador, Mexico and Paraguay, have already done so.

But in those countries and in almost all of Latin America there is a special justice system for juvenile offenders that affords children and adolescents due process protections and the right to defence when they are accused of a crime, under a specific regime that is entirely different from the criminal justice system that applies to adults.

Most countries in the region have established a statutory minimum age under which minors are not considered legally responsible for their actions, which ranges from 12 to 14. But 18 is still the age of criminal responsibility.

In Argentina, by contrast, young people are not considered legally liable until the age of 16, but 16 and 17-year-old offenders are frequently transferred to adult criminal courts – running counter to international standards – or are held in juvenile detention centres for longer periods than their offences actually warrant.

The reason for this is that Argentina lacks a special system for minors, as stipulated by the Convention on the Rights of the Child (CRC) adopted by the United Nations in 1989 and ratified by Argentina in 1990. Moreover, still in force in the country is a decree issued by the 1976-1983 dictatorship, which grants judges a great deal of discretion and thus increases the possibility of arbitrary rulings.

This has led experts on juvenile justice issues and lawmakers to recommend that the obsolete decree be repealed without delay and a new juvenile court system be implemented in its place, to provide alternatives to imprisonment, lighter sentences, and access to schooling and health care, among other measures.

Consulted by IPS, Gimol Pinto, a specialist in legal reform and child welfare with the United Nations Children’s Fund (UNICEF), said that in most countries of the region the minimum age for a person to be tried under juvenile criminal law ranges from 12 to 14 years.

Pinto added that in 2007 the Committee on the Rights of the Child, which monitors implementation of the CRC by signatory states, considered that 12 was too young an age for children to be criminally prosecuted, and that the ideal minimum age would be between 14 and 16.

In Argentina there are currently 14 bills proposing the creation of a juvenile justice system, all of which set the minimum age at which minors can be held legally responsible for their actions at around 14. The U.N. Convention defines children as “every human being below the age of eighteen years.”

The country cannot fully “comply with the Convention unless it reforms its criminal law system, and this reform must involve a discussion not only of the minimum age (of criminal responsibility), but also of the need to put in place a juvenile justice system that considers depriving juvenile offenders of their liberty as a measure of last resort and applies it only for the shortest time possible,” Pinto said.

In 2005, prompted by reports presented to the Inter-American Court of Human Rights of cases of juvenile offenders who were sentenced to life imprisonment, Argentina’s Supreme Court ruled that anyone under 18 who commits a serious offence must receive a penalty in accordance with the scale of attempted crimes as provided for under the criminal code, which establishes lighter sentences.

But legislators and jurists insist that what is needed is a specific justice system for minors. Officials close to Governor Scioli explained that what he was referring to was precisely such systems, in order to deal with offences involving minors with more appropriate mechanisms.

Buenos Aires police chief Daniel Salcedo maintained that in his jurisdiction young people are involved in approximately one million crimes a year, of which only 1,000 to 1,200 a month are reported.

However, experts on children’s issues, jurists and Catholic activists say that most juvenile delinquents have not committed serious offences, like murder or kidnapping, and that what is needed, rather than a tougher law enforcement approach, are social policies aimed at strengthening family ties and keeping kids in school.

The cry for a tougher law enforcement approach to minors voiced by thousands of San Isidro residents at a demonstration held shortly after the Oct. 20 murder in that neighbourhood was seen by Nora Schulman, head of the Argentine Committee for Monitoring and Implementation of the Convention on the Rights of the Child, as “a step backwards.”

Referring to the demand for a reduction in the age of criminal responsibility, Schulman told IPS that “We see this as a knee-jerk reaction to social pressure. In the absence of effective public safety policies, the chain breaks at the weakest link, and apparently the easiest way to solve things is to lock kids up at increasingly younger ages.” But this demand goes against some advances seen at the national level, she said.

“The national government has shown that it is willing to acknowledge the problem, and to that end has just completed an assessment of the situation,” she said, referring to a report called “Adolescents in the Criminal Justice System”, released in October by the Ministry of Social Development and UNICEF.

According to the report, in 2007 there were a total of 6,294 juvenile offenders and suspects, 90 percent of whom were male, 72 percent of whom were above the age of 16, and 70 percent of whom were involved in crimes against property, although in two-thirds of these cases no weapons were used.

The study – which does not mention the age of criminal responsibility – also maintains that “a legal reform is not essential to put an end to detentions in police stations, overcrowded conditions and abuses in institutions, or the use of deprivation of liberty as a measure of first, instead of last, resort.”

The report’s authors also recommend creating “a specific criminal justice system” for children and adolescents, with alternative programmes, institutions appropriate to their age, and the “commitment of handing down prison sentences only as a measure of last resort and for the shortest period of time possible.”

These recommendations are within the spirit of the Convention on the Rights of the Child that Argentina incorporated into its constitution in 1994. They are also innovative measures, considering the high degree of discretion that judges currently have, which means that minors brought to trial are left at the mercy of the judge who hears their case.

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