The Buenos Aires judge Laura De Marinis declared it unconstitutional to apply the new Juvenile Criminal Regime to a minor under 14 years old

The Buenos Aires judge Laura De Marinis declared the application of the new Juvenile Criminal Regime unconstitutional and dismissed a 14-year-old offender accused of participating in an attempted robbery, in a new judicial ruling against the reform that lowered the age of criminal responsibility in Argentina.

The decision was issued by the First Instance Court in Juvenile Criminal, Contraventional, and Minor Offenses No. 3 of the City of Buenos Aires. According to the investigation, a 47-year-old man reported that he was approached by a group of 5 young people and that one of them demanded he hand over his cell phone. The victim managed to escape and sought help from a member of the City Police.

De Marinis considered that, although robbery constitutes a violent crime, the act did not come to fruition and the victim's property was not affected. Based on the particular characteristics of the case, she decided to set aside the application of the new legislation and dismiss the adolescent.

In her reasoning, the magistrate argued that the State should respond to certain behaviors of minors through assistance and rights protection agencies rather than resorting to the penal system.

"Punishing them for the failures of the adult world inevitably means shirking our adult responsibilities", De Marinis stated, adding that the inclusion of adolescents in the penal system should be "the last resort".

However, the Juvenile Criminal Regime enacted by Congress does not establish that adolescents should receive the same treatment as adults nor does it automatically mandate their incarceration. Law 27.801 specifically created a system for individuals aged 14 to 17 whose declared objectives include accountability for actions, education, resocialization, and social integration.

For this reason, the discussion opened by the ruling is not limited to choosing between state assistance or punishment. The legislation itself combines accountability mechanisms with differentiated tools for minors, precisely to avoid automatically transferring the rules of the adult penal regime.

The revoked Buenos Aires precedent

De Marinis's ruling comes after the decision of the Buenos Aires judge Marta Pascual, who had suspended the application of the new legislation for 60 days throughout the province of Buenos Aires, citing, among other points, deficiencies in infrastructure and institutional capacity.

This decision was subsequently revoked by Chamber I of the Appeals and Guarantees Court in Criminal Matters of Lomas de Zamora. The judges noted that a precautionary measure could not neutralize a law enacted by Congress with general scope and recalled the presumption of legitimacy of existing norms.

The new ruling from Buenos Aires thus brings back to the center of judicial discussion the extent to which the constitutional control of guaranteeing judges can go in the face of a penal reform approved by Congress and supported by significant popular approval.