Daniela Estrada - "The law has some design problems, which make it very difficult to interpret," United Nations Children’s Fund (UNICEF)’s Chilean representative Egidio Crotti told IPS.
Nonetheless, Crotti said the system under the new law would be better than under the present law, which allows children aged 16 to 18 to be tried as adults if the authorities determine that they are capable of understanding the wrong they have done.
The new law is confusing about what offences are punishable, what the corresponding punishments are, and what rules to follow to set the penalties, the expert explained, because judges must take the Criminal Code for adults as their guide.
"The text that was eventually approved is very different from the original draft law presented by the government, which wanted an autonomous juvenile criminal justice system," Julio Cortés, a lawyer with the non-governmental Corporación Opción, which works for children’s rights, told IPS. Corporación Opción participated actively in discussions of the law.
In 2005, when the presidential electoral campaign was in full swing and crime was at the centre of political debate, the Senate decided to toughen the proposed law, linking the juvenile criminal justice code to the adult system, Crotti said.
Law 20.084, which establishes criminal responsibility for teenage offenders, was promulgated by former President Ricardo Lagos (2000-2006) in November 2005, and was due to enter into force on Jun. 8, 2006.
But the executive branch decided to postpone its entry into force for one year, as the necessary infrastructure and training was still lacking. Congress, therefore, revised the law, and in passing created an Expert Committee to supervise its implementation.
The new criminal law is for teenagers who are over 14 and under 18 at the time of committing a crime.
Fourteen to 16-year-olds may be sentenced to up to a maximum of five years in closed or semi-closed detention centres, where they must take part in social reinsertion programmes. Over-16s may be sentenced to up to 10 years. However, deprivation of freedom must always be used only as a last resort.
Other penalties provided in the law include parole, community service and making reparations for damages caused. Offenders who need it will be offered drug rehabilitation treatment.
Last October the Expert Committee delivered their first report, identifying five problem areas. The first was, precisely, the existence of "obstacles to standardised rulings and problems with the legal and institutional design."
They also pointed out difficulties in "determining the load and flow of the system," and in "education and training in the institutions involved."
Lawyer Rafael Marambio, one of the 15 members of the Committee, told IPS that their second report would be released in late March, and would focus mainly on progress in infrastructure and training.
There have been improvements in both aspects, although more still needs to be done, said Marambio, who is a researcher at the non-governmental Instituto Libertad.
The National Service for Minors (SENAME) will be in charge of the internment of young offenders as well as sentences served in the community.
SENAME’s current programmes and centres — including its Observation and Diagnosis Centres (COD) and Behaviour Rehabilitation Centres (CERECO) — will be used for this new purpose.
SENAME director Paulina Fernández said that more centres are being built, at a cost of some three million dollars.
But Crotti feared that SENAME lacks the capacity to implement non-custodial penalties all over the country.
"If community-based alternatives are not in place, teenagers may end up interned in closed or semi-closed detention centres," the UNICEF representative said, while calling for these young people to be given sex education.
However, Crotti highlighted the creation of 13 independent commissions at national level to monitor the conditions in which teenage offenders are held, as announced by the Justice Ministry.
Marambio said that the technical problems posed by the law would probably not be raised again by the Expert Committee, as they can only be solved by amending it.
The government has made it clear that it is not prepared to send proposals for modifying the law to congress, the lawyer said.
On Feb. 28, Justice Minister Isidro Solís ruled out any further postponement of the law’s entry into force.
"I believe that it is better to begin installing the system slowly, rather than create an all-inclusive system that may end up as a white elephant," he said.
"We are now completely convinced that by Jun. 8, 100 percent of the range of services provided in the law will be operational," he said.
Another of Crotti’s concerns is that the public should be made aware of the system, so that teenagers are aware of the consequences of breaking the law. "It’s hard for young people to understand the rules of the game if not even lawyers are able to interpret the new law," he said.
If the system is not ready by Jun. 8, the possibility of a transition period, during which the law would only be applied for the most serious offences committed by 16 to 18-year-olds, should be considered, he suggested.
"As the law is so ambiguous, we will only find out whether it makes things better or worse when it is implemented," Corporación Opción’s Cortés concluded. (END/2007)