The lowering of the age of imputability

The lowering of the age of imputability

The project sent to Congress by the Executive – raised by the disagreements of last week – that proposes the lowering the age of imputability to 14 years and recent aberrant acts of insecurity involving minors have once again awakened a debate that requires definitive conclusions. Currently, minors are not punishable until they are 16 years old and there is no shortage of those who promote setting the limit at 12 years old. The discharge proposed by the Government does not contemplate a distinction between crimes and places emphasis on the re-education or resocialization of the minor.

Some human rights specialists oppose such initiatives. They maintain that they have no impact on the problem of crime, that they deepen the stigma and state and social violence towards children, that they constitute a criminalization of the poor for the mere fact of being poor and that they evade a central responsibility of the State, such as that of guarantee the full exercise of children’s rights. These are compelling arguments, but are they true?

We must clarify that there is no legal impediment to lowering the age of imputability of a minor. Argentina acceded to the Convention on the Rights of the Child, which does not set an age for punishment, and gave it constitutional status. The treaty establishes, among other provisions, that States parties shall ensure that the arrest or detention of a child is carried out in accordance with the law and is used only as a measure of last resort and for the shortest possible period. Therefore, States parties can charge crimes and impose prison sentences on a child.

However, it is unquestionable that poverty and marginality – two different phenomena that require different responses that are not effectively addressed by States – encourage the insertion of children and adolescents into crime. Statistics reveal that many minor perpetrators of crimes have suffered in these areas the violation of their rights since childhood or pre-adolescence through family violence, the absence of exemplarity and values, lack of education and contact with drugs. Argentina has an enormous social debt to pay off in these increasingly populated spaces. The question is what to do in the meantime. Because until governments decide to face the situation through a forceful educational intervention that opens ways for the values, institutions of society and the law to penetrate these areas, it is essential to take measures that address the consequences of the social evil that is growing. unceasingly. In this context of overcrowding, deprivation and abandonment, many children and adolescents are left to the recruiting power of drug trafficking taking refuge in the slums, as well as youth gangs and adult criminal professionals who take advantage of their immunity from prosecution and use them for their vile purposes.

Lowering the age of imputability does not criminalize children and adolescents at risk. Punishes and prevents adolescents who have fallen into crime. It must be recognized that hundreds of thousands of adolescents who live in deprived areas are educated and work away from crime. The punishment of those who fall into criminal practices has a deterrent and exemplifying effect that prevents recidivism and, with it, the possibility of adding more victims in a society with worrying crime rates.

We must take the issue out of the ideological trenches. In fact, No one can understand how in our country a subject – adolescent or not – who commits a crime registers a history of two, three or seven criminal interventions and still remains free. He has stolen, he has abused others and he has attacked, armed, against his fellow men. This is a person who is dangerous to himself and to third parties regardless not only of his age, but also of who is responsible for the physical or psychological injuries that led him to behave in that way.

The fact that he is free does not necessarily mean a failure of the minority penal regime or the penitentiary, but fundamentally the evident ineffectiveness of a system of incarceration or protective custody that takes into account the repetition of crimes of violence as an impeding factor for the granting of releases. In this sense, today the waters are also divided, precisely between terms such as recidivism and reiteration. It is a matter of procedural law. Of the law and the interpretation that judges make of it. Guaranteeing the rights of a detainee does not mean renouncing compliance with the duties to which the political, police and judicial authorities are obliged in the face of crime. The malfunctioning of the re-education system of juvenile institutes or prisons cannot act as an excuse for judges to release people, minors or not, whose behavior results, regardless of the existence or not of final convictions, of unquestionable evidence of the choice of crime as a way of life with the social danger that this represents. The lives of many are at stake.

Neighboring countries and much of the world’s legislation establish regimes where liability applies from the age of 13 or 14. Identifying society as ultimately responsible for the evil does not relieve the minor of its guilt or of the need to remedy it for his own good, for the protection of the victims of crime and the entire community. The time has come to raise a serious and responsible debate, devoid of ideologies, that considers the serious dangerous conditions of those who, without any respect for life, both their own and others, commit crimes of all kinds. Reviewing the juvenile penal regime will also be part of the task ahead.


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