The III Chamber of Cassation and Appeals in Juvenile Criminal Matters in Buenos Aires annulled the dismissal of a 14-year-old adolescent and ordered the investigation to continue
The III Chamber of the Criminal Cassation and Appeals Court for Juveniles in the City of Buenos Aires unanimously revoked the ruling of the Kirchnerist judge Laura Beatriz De Marinis, who had declared unconstitutional the reduction of the age of criminal responsibility from 16 to 14 years and had dropped charges against a minor offender.
The judges Ignacio Mahiques, Jorge Atilio Franza, and Patricia Ana Larocca questioned the grounds used by the magistrate and resolved that the investigation must continue under the provisions of Law 27.801, which established the new Juvenile Criminal Regime and has been in effect since September 5.
Additionally, the court ordered the removal of De Marinis from the case. The case must return to the originating court and be sent to the Office of Draws and Assignment of Cases to appoint a new magistrate.
The Kirchnerist judge Laura Beatriz De Marinis
The ruling arose from the appeal filed by prosecutors Mauro Andrés Tereszko and Paula Raffa Pirra against the decision made on September 21.
On that occasion, De Marinis had declared unconstitutional Article 1 of the new legislation regarding M.I.A., a 14-year-old thief accused of participating in an attempted robbery that occurred in Palermo.
In his vote, Mahiques argued that the declaration of unconstitutionality should be used exceptionally and questioned that the judge had demonstrated a concrete contradiction between the new age of criminal responsibility and the National Constitution or international treaties.
“Judicial control, however, does not authorize substituting one legislative option for another simply because the latter seems more convenient, less punitive, or preferable from a certain conception of criminal policy”, stated the judge.
Larocca fully agreed with his arguments, while Franza developed his own reasoning and concurred with the revocation of the ruling and the removal of the judge.
The Kirchnerist judge Laura Beatriz De Marinis
One of the points analyzed by the Chamber was the recommendations of the United Nations Committee on the Rights of the Child. The court noted that the Convention on the Rights of the Child establishes the need to set a minimum age of criminal responsibility, but does not specify what that age should be.
It also recalled that General Comment No. 24 considers 14 years as an acceptable general minimum standard, although it recommends maintaining higher ages when states already contemplate them. For the judges, these recommendations constitute relevant interpretative guidelines, but do not imply a legal prohibition for Congress to modify national legislation.
The Chamber also questioned that the particular circumstances of the offender were used to invalidate the general norm. The judge had considered his situation of "social vulnerability", the absence of physical injuries to the victim, and that the act had remained at the level of an attempt.
According to Mahiques, those elements can be considered when analyzing individual responsibility, potential alternative outcomes, or a possible sanction, but do not allow for determining on their own that the limit of 14 years is unconstitutional.
The Kirchnerist judge Laura Beatriz De Marinis
The court also highlighted that the new regime includes alternative measures to deprivation of liberty. Consequently, it questioned that the original ruling had considered the possibility of a prison sentence as a necessary consequence of the application of the law.
Laura De Marinis removed
The court also ordered the removal of De Marinis from the case, which was requested by the Public Prosecutor's Office.
The judges understood that the magistrate had made premature assessments regarding the penal relevance of the act, its degree of execution, and the impact on the legal good. Franza described the conduct as a “clear case of arbitrariness and extreme institutional gravity” and questioned the consideration of the victim's rights.
The case began on September 10, when several minor offenders were arrested after an attempted robbery against a 47-year-old man on Godoy Cruz at 2500, in Palermo. M.I.A., 14 years old, fell under the new regime, which had been in effect for five days prior.
With the Chamber's decision, the dismissal was rendered ineffective and the investigation will continue under Law 27.801.
