Lowering the age of criminal responsibility: are you in favor?

Milena Galdino _Senate Agency - Lowering the age of criminal responsibility is expected to be one of the most controversial topics in the Constitution, Justice and Citizenship Committee (CCJ) this year. The Constitution stipulates that minors under eighteen years of age cannot be criminally charged (article 228), and are therefore subject to specific punishments provided for in the Statute of the Child and Adolescent, but there is significant pressure from a segment of society for juvenile offenders to be held criminally responsible for their actions.

Three proposed amendments to the Constitution (PECs) on the subject are awaiting a decision from the Board of Directors in the CCJ (Committee on Constitution, Justice and Citizenship) regarding a request for them to be analyzed together. After receiving an opinion from the committee, they will proceed to a vote in the Plenary and, if one of the texts is approved in two votes in the Senate, it will be sent to the Chamber of Deputies, where it will follow a similar procedure, until its rejection or promulgation as a constitutional amendment.

The issue of the age of criminal responsibility was debated by the committee of legal experts that drafted a preliminary bill for a new Penal Code (PLS 236/2012). The experts were divided on the possibility of reducing the current limit – some consider the provision an entrenched clause of the Constitution. But the committee stressed that, in any case, the only way to make a change would be through a constitutional amendment, which was outside its purview.

heinous crimes

The three texts under analysis in the CCJ (Committee on Constitution, Justice and Citizenship) have specific nuances in the treatment of juvenile offenders. PEC 33/2012, by Senator Aloysio Nunes (PSDB-SP), restricts the reduction of the age of criminal responsibility – to 16 years – to crimes listed as non-bailable and ineligible for pardon or amnesty: torture, terrorism, drug trafficking, and heinous crimes (article 5, item XLIII of the Constitution). It also includes cases where the minor has multiple recidivism in the practice of serious bodily harm or aggravated robbery.

The rapporteur for the matter in the CCJ (Committee on Constitution, Justice and Citizenship), Senator Ricardo Ferraço (PMDB-ES), advocated for approval, highlighting that "Brazilian society can no longer be held hostage by minors who, under the protection of the law, commit the most repugnant crimes." According to him, the law does not serve to protect these offenders, "but only those who, because they have not reached maturity, are also unable to discern the correctness and consequences of their actions."

Other countries

Senator Acir Gurgacz (PDT-RO) went further in his proposal (PEC 74/2011): for him, those who are 15 years old should also be held criminally responsible for the practice of intentional homicide and robbery followed by death, whether attempted or completed.

The proposal, which still lacks a rapporteur in the CCJ (Committee on Constitution, Justice and Citizenship), cites examples from the World Map of the Age of Criminal Responsibility, prepared by the United Nations Children's Fund (UNICEF) in 2005. According to this document, in the United States, the age of criminal responsibility varies from 6 to 18 years, according to state law. In Mexico, it is 11 or 12 years in most states. South America is the region where the age of criminal responsibility is latest: in Argentina and Chile, at 16 years. In Brazil, Colombia and Peru, at 18.

In justifying the project, Gurgacz also cites a survey conducted by the Brazilian Association of Magistrates and Prosecutors for Children and Youth, according to which adolescents are responsible for 10% of all crimes committed in Brazil.

"Reducing the age of criminal responsibility from 18 to 15 years in cases of intentional homicide and robbery resulting in death is necessary due to the increased mental development and discernment of adolescents today and the need to deter minors from committing these crimes," emphasizes Acir Gurgacz.

Without exception.

The third proposed constitutional amendment (PEC) regarding the age of majority under analysis in the Constitution, Justice and Citizenship Committee (PEC 83/2011) is broader than the previous two. The text, presented by Senator Clésio Andrade (PMDB-MG), establishes a limit of 16 years for any type of crime committed. Clésio proposes a new wording for article 228: "The age of majority is reached at 16 years, at which point a person is criminally liable and capable of exercising all acts of civil life."

In the senator's opinion, those who are 16 years old should not only be subject to criminal prosecution, but should also have the right to marry, travel abroad alone, enter into contracts, and drive; in other words, they should also attain the full range of civil rights. The proposal also makes voting mandatory for those over 16 and under 18, whereas it is currently optional.

"What we have in mind is to grant full citizenship to those over 16 years of age, with the rights and responsibilities arising from this new status, including in the criminal sphere," says the author of the proposed constitutional amendment, reported by Senator Benedito de Lira (PP-AL).

Popular participation

A survey by the DataSenado Institute, published in October, indicated that 89% of the 1.232 citizens interviewed want to prosecute adolescents who commit crimes. According to the poll, 35% set 16 years as the minimum age for a person to receive the same sentence as an adult; 18% indicated 14 years and 16% responded 12 years. There were also 20% who said "any age," arguing that any person, regardless of age, should be judged and, if applicable, convicted as an adult.

In the same month, Senator Ivo Cassol (PP-RO) proposed a Draft Legislative Decree (PDS 539/2012) suggesting a plebiscite on reducing the age of criminal responsibility to 16 years, to be held during the next presidential elections in 2014.

- Maintaining the age of criminal responsibility at 18 years is to ignore the mental development of our young people. Lowering the age of criminal responsibility, in itself, would not solve our serious public safety problems. However, it would be a good contribution, because young people, due to impunity, feel encouraged to commit crimes - said Cassol in the Plenary, when presenting the proposal.