THERE IS NOTHING STOPPING US FROM CHANGING THE PENAL TREATMENT OF JUVENILE OFFENDERS IN BRAZIL

CONCEPTUAL CONFUSION AND HYPOCRISY OBSTRUCT CHANGE

 

To not see today’s precocious development of delinquency and lack of punishment as factors of violence is to act on hypocrisy. 

By: Antonio Fernando Pinheiro Pedro

 

Underage crime rates have reached alarming numbers in Brazil and the precocious development of delinquency is an undisputable social reality of today.

Society is urging for change and the State of Brazil must alter the penal treatment of underage kids – already notorious for its inefficiency.

This change finds a strong resistance in the actions of a significant portion of our legal bureaucracy. Confronted with disastrous rates of juvenile criminality, the heralds of judicial monotony take shelter under tables dotted with clichéd reports and statistics, waiting for the system to absorb the facts and remain impassive.

Many of them play the “unconstitutional” card when it comes to the fair pretention of change. The obstacle, however, is non-existent.

Let us look at the evidence: 

The Constitution and the confusion over concepts

Article 228 of the Brazilian Constitution reads:

“Minors under the age of eighteen are non-imputable and therefore subject to special legislation norms.”

The rule established a legal age for penal imputability. Thereby, it is important to first understand what “imputability” is. 

Imputability is the capacity attributed to an individual who understands his own conduct and therefore can orient himself according to that understanding. This capacity is considered during the sentencing for the criminal act.

The article turned the every minor under 18 non-imputable, therefore, subjecting them to a specific law.

The legal remission to the special law is not gratuitous and, contrary to what the monotony heralds usually say, it dislocates the range of conceptual understanding of the norm.

In the present case, the penal non-imputability constitutionally established to minors is absolute. Absolute, yet under no circumstance fundamental!

Furthermore, the norm may be applied in the hypothesis of the minor incurring penal infringement. It’s a subjective public right, if too much of it.

It’s important to comprehend what are subjective public rights.

Subjective public rights give the practice of judicial function, such as parental power, the exercise of authority, the collective defense of the environment, the exercise of professional prerogative, etc.

Some public rights are fundamental guarantees, others not. Many are institutionalized by infra-constitutional rules. They may be modified in the form of law according to the general principals applied to the norm. A good example is the right of the defendant to receive agreement proposals to suspend the process in the special penal court, in case of crimes with the lowest potential of offense.

Not to be confused with public subjective rights, granted without distinction to everyone by the Federal Constitution. Fundamental guarantees of the citizen against the free will of the State; political rights, that allow citizenship and social rights to be exercised, norms that force the State to provide essential services. 

Public subjective rights have plain efficiency and may be applied immediately. They do not depend on the infra-constitutional rule, as defined by article 5, § 1 of the Charter. It is the case of individual rights and guarantees – unchangeable rules, according to article 60, § 4 of the Federal Constitution.

They want to fit penal imputalibity of minors in this list. However, article 228 of the Charter is not included in this list of fundamental clauses. It is not a guarantee or a civil right. It’s a penal non-imputability rule applied hypothetically, with express reference to the law that must regulate it.

Therefore, the Constitution does not raise a barrier against proposing an amendment that would modify the imputation criteria contained in art. 228.

Of course integrated policies must be adopted,
but repression of juvenile criminality is
 one of them and it’s essential

Hypocrisy is the real obstruction to change

The obstruction considered until here, however, is hypocritical. It serves as a “politically correct” barrier to guarantee impunity to individuals who cruelly harm fundamental guarantees granted to all citizens.

That indeed is unconstitutional, as it hurts the trivial principles of morality, proportionality, the efficiency of the Administration in repressing offenses and punishing delinquents, negative penal jurisdiction in loss of the Public Order, etc…  

Professor André Martins Vilar de Carvalho, interviewed by the Estado de São Paulo newspaper (April 6, 2013), said he senses that “everything being made in Brazil today is to build a façade, hiding our most profound problems”.

This “benefits the spread of the idea that Brazil is a no man’s land, a place where everything can be done, including heinous crimes, to people with lower psychological structure.”  

Maintaining the current status will not “reeducate” underage murderers who set defenseless people on fire, psychopaths who rape and kill, or cowards who shoot nonresistant citizens in the head… all gone unpunished in some way.

Therefore, to support the obstacle to a more than necessary change is to conduct the social frailty felt in Brazil and something close to a serious breach. 

Antonio Fernando Pinheiro Pedro - lawyer (graduate of the University of São Paulo - USP), journalist and environmental consultant. Member of the Green Economy Task Force of the International Chamber of Commerce, member of the centenary Institute of Brazilian Lawyers - IAB and member of the National Environmental Law Committee of the Federal Council of the Brazilian Bar Association - OAB. Journalist, is the publisher of the "Portal Ambiente Legal" (www.ambientelegal.com.br)  and head of the blog "The Eagle View".