Move to lower age of criminal responsibility picks up pace

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President Javier Milei’s government is training its eye again on its bid to lower the age of criminal responsibility of minors from 16 to 13 years of age.

Human rights groups criticise the move, which was given new impetus by the March 2024 killing of petrol station attendant Bruno Bussanich in Rosario by a hitman who was only 15 years old.

The issue has long been on the agenda and Milei’s government senses its moment. It submitted a bill in June to reduce the criminal liability age of minors from 16 to 13. The statute is justified, according to the government, by the argument that there is a growing percentage of crimes in this country committed by teenagers.

Another factor, officials say, is drug-trafficking, especially in Rosario where minors are used as “little narco soldiers,” committing crimes on the orders of criminal groups.

However, there are institutions and bodies indicating that the proportion of children and teenagers in conflict with criminal law is very low compared to over 18s.

Court and Church authorities, headed by San Isidro Bishop Monsignor Oscar Ojea, met at a parish in San Justo to reject the government’s bill.

The head of the Argentine Synod called for “a more critical view” of media situations, where “there would seem to be an insistence on or demonisation of crime by minors to steer clear of a partial view.”

During a recent appearance before Congress, left-wing lawmakers asked Cabinet Chief Guillermo Francos to explain the bill, given that “only one percent of serious crimes are committed by minors.”

To put things into context, deputies highlighted that “seven out of 10 children are poor,” there are no devices in vulnerable areas to contain them and cited the disappearance of five-year-old Loan Peña in Corrientes Province three months ago, stating he could be a possible victim of child-trafficking.

Francos stressed that the current Minor Criminal Regime (Law 22,278) was enacted in 1980 and “it is not in keeping with the principles recognised in the Constitution and international legislation.”

He also questioned the criminal liability age in this country as being one of the highest in the region. It is a trend that has been seen for years: there are at least nine bills in Congress with parliamentary status to amend the regime.

Background

Legislation inherited from the military government of Jorge Videla considers a child as a subject to be protected, in opposition to the Convention on the Rights of the Child, and hence unconstitutional. This logic recognises teenagers as a subject of law, clashing with such institutions as parental responsibility, fully recognises teenagers’ rights and guaranties, even in due process, and widens the range of sanctions based on educational principles.

The Santa Fe Province government has prepared a report on police procedures with minors as protagonists and recently came out in favour of a debate on the lowering of the age of criminal liability.

La Libertad Avanza deputy Álvaro Martínez has a bill proposing to set that limit at 12. It is one of the nine bills with parliamentary status. The lamaker specified the differences of his initiative, highlighting that it would keep youths from being exploited by criminal gangs.

He said “this government is determined to have important debates, no matter how uncomfortable they may be.”

However, Macarena Fernández Hoffman, coordinator of the Criminal and Violence Policy team within the CELS (Centre of Legal and Social Studies) human rights group said that if enacted, the move could lead to disproportionate and not necessarily effective sentences: “Locking up increasingly younger kids for longer won’t solve the problems but will help to make them worse.”

She also highlighted the release by UNICEF, requesting that such an important statute “be in line with international standards, including the principles of progressivity and non-regressivity” – that is, to keep countries from lowering the age when youths may be tried.

The UN agency also rejected an increase in crimes committed by minors.

Regional comparisons

“It is worth noting that Argentine legislation is within a minority in the region in terms of the criminal liability threshold, which suggests that our legal system is outdated in this aspect,” stresses the bill, submitted by the government and the report by the Cabinet Chief’s office.

The Casa Rosada has highlighted that Argentina and Cuba are the only countries in Latin America which establish 16 as the minimum age of criminal liability. Moreover, it says that other nations changed their legislation to “avoid impunity in crimes committed by teenagers” and provides a series of examples: Chile, Colombia and Peru have set that age at 14; Guatemala, Nicaragua and Uruguay, at 13; Brazil and Mexico at 12; and Grenada and Trinidad & Tobago at seven.

Martínez said that both the Executive Branch’s bill and his own are being debated in committees. On the age of criminal liability, he remarked that though “it might seem capricious, there has to be a limit at some point.”

He went on to argue that after consulting Brazilian and Mexican officials, he attested that a limit of “12 years provided results, especially in the decrease of the use of minors by criminal gangs.”

“We consider that at 12 years old, minors already understand well what is right and what is wrong. The Civil Code already recognises the ability to understand unlawful acts after 10 and lawful acts at 12, on the grounds that when one is a child, one is taught first what is wrong and then what is right,” added the Mendoza legislator.

However, UNICEF suggested that “there is no evidence proving that lowering the criminal liability age has a favourable impact on greater security among the population.”

One of the most used indicators in this field to assess violence levels globally is the murder rate, and in this vein Argentina and Cuba are some of the least violent countries with an average of 4.2 and 4.1 homicides for every 100,000 inhabitants.

Behind the figures there are people and lives lost, but which are prepared to specify reference frameworks and standards. Thus, the data provided show that Argentina is below such countries as Brazil and Mexico, which have an average 23 homicides for every 100,000 inhabitants with a criminal responsibility age of 12, or Ecuador and Honduras, averaging 45 and 31 homicides for every 100,000 inhabitants with the same age limit.

Pablo Barbirotto, criminal judge for Children and Teenagers in Paraná, the capital of Entre Ríos Province, said that measures such as these have a “placebo effect.” The judge specified that only 0.68 percent of serious crimes, which include murders, are committed by minors.

“It does not seem fitting to offer society a security response in terms of this rate, when it is not actually done with the remaining 99 percent,” he wrote in a message to Perfil.

As for the recommendation of “non-regressivity,” the ruling party deputy claimed that he does not view it as affected because we must “not stay stagnant with laws which may not be reflecting contemporary needs.”

Martínez commented that criminal law “is not applied retroactively” and that society clamours for solutions to such heinous crimes as the murder of the petrol station attendant, which he deemed as “a message to the government” in its fight against drug-dealing.

Minimum? Recommendation?

On this point, in 2019, the United Nations International Committee on the Rights of the Child issued a General Observation (No. 24). Although the entity does not usually indicate a recommended set minimum age for juvenile criminal responsibility, it established a minimum limit of 14.

In the bill submitted by Milei’s government it is claimed that the “rate of crimes committed by teenagers increases year after year” throughout the country.

Its claim is based on the General Database of Children and Teenagers prepared by the Supreme Court, qualifying the statistics as “overwhelming evidence.”

Statistical reports on “the first halves of every year prove that over the last four saw the following increase in court interventions on teenagers: 822 in 2021 – a 22-percent increase from the previous year; 906 in 202 – a 10-percent increase approximately compared to the to the year before; and 986 for the same period in 2023 – up nine percent from the previous year.“

“Most crimes were committed by teenagers who, at the time of the event, were between 16 and 18 years old -68 percent of cases during the 2021-2023 period, and 32 percent by teenagers under 16- in that period” continue the data from the highest court of the land, cited by the ruling party.

“They were mostly crimes against property – 84.5 percent of cases in the 2021-2023 period,” it concluded.

Yet when consulting the latest update of the report by the Court, it is observed that the main data show that 907 minors were involved in criminal cases commenced in Minor Courts, or an eight-percent decrease compared to the same period in 2023. They also show that 920 cases were commenced in this venue, 16.7 percent fewer than the same period the previous year. Crimes against property still comprise the majority (84 percent), and generally include theft, robbery and carjacking, among others.

Consulted about the statistics, the La Libertad Avanza deputy warned that it is not so simple to take this into account, due to what is known as the revolving door.

“Many claim that the percentage of crimes committed by minors is negligible, and we don’t know if it’s so because many don’t enter the system, they’re quickly released. The scant information one learns is generally in very serious cases,” he retorted.

Data

A report prepared by the Security Ministry of Santa Fe shows that as of August 19, 2024, there were 594 teenagers aged 16 and 17 apprehended, the departments of Rosario (418) and General Obligado (42) being the places with the highest number of arrests. This accounts for 0.72 percent of total detentions, of all ages, which reached the figure of 82,315. Depending on the type of crime, 166 of these events were for “Theft”, 52 for “Robbery”, 37 for “Possession of a firearm” and 28 for “Coverup". According to the data obtained by PERFIL, considering only the proceedings records, this age group accounts for 1.99 percent of the total, and when looking at the total police arrests, minors aged 16 and 17 account for 9.4 percent. From the government of Maximiliano Pullaro they claimed that in “crimes related to a criminal organisation there should be no floor for the criminal liability age.”

By way of example of the low proportion of unlawful acts committed by minors, UNICEF underlined that only two percent of all criminal investigations started in 2023 by the Buenos Aires Province Public Prosecution are for teenagers accused of committing an infraction.

The 2022 National Survey of Juvenile Criminal Devices and its Population, prepared by the Security Ministry, the Childhood and Adolescence Secretariat and UNICEF indicated that there are 4,112 youths in juvenile criminal devices, out of which 1,853 are aged 16 and 17 and 34 are under 16 (0.8 percent). When putting both groups together, they account for less than 0.1 percent of all teenagers aged 14 to 17 in the country, according to the population projections by the INDEC Statistics Bureau after the last census.

According to the statistical records of the Buenos Aires Province Public Prosecution, there were 1,060,542 criminal investigations in 2023, out of which 23,846 are related to minors, which accounts for 2.25 percent. They claim that 0.3 percent of teenagers in that province were involved in juvenile criminal proceedings and that between 2014 and 2022, the number of youths in conflict with criminal law went down by 63 percent.

According to the Planning Secretariat of the Buenos Aires Province Supreme Court, in 2017, criminal investigations against teenagers accounted for 12.2 percent of the total investigations of the Buenos Aires Province Judiciary. This gradually decreased from that year until, in 2023, cases against teenagers went down to 7.78 percent of the total universe.

Criminal policy

“A solution must be given both to the minor, so he does not follow that path, and the victims so they have some kind of reparation. We have to do this by updating statutes and with all constitutional and international guaranties,” commented Martínez.

“It’s a criminal policy decision," he added beyond the data.

In addition, the deputy criticised that detractors of the bill only look at the age intended to be lowered for criminal responsibility and not the staggered series of penalties and follow-up established by his bill in accordance with the age of the liable party and the type of unlawful act. In that vein, he highlighted that in both ruling parties' initiatives a prison penalty for minors is a “last resort,” depending on the case and seriousness of the crime.

Judge Barbirotto suggested that authorities tend to make a “Buenos Aires City-centric appreciation”, since in most provinces, except for Santa Fe, Córdoba and Mendoza -with a situation more similar to Buenos Aires-, the proportion of crimes committed by minors is “extremely low.” However, he used a phrase on which different specialists agree: “It is worse to do nothing”, in relation to the fact that the juvenile criminal regime cannot remain as is.

“We have to understand that Argentina has been condemned for this”, Fernández Hoffman recalled, and said that “there cannot be life imprisonment or such long sentences as per the Executive Branch’s bill.” On the other hand, he concluded by emphasising that “a child cannot be treated as an adult,” and that one proposal could be a differential criminal regime dealing with such matters as more lenient penalties and greater possibilities of social reinsertion.

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