Paulina Fernández Fawaz, graduate in Sociology at the University of Brasilia (Brasil). She specializes in Youth and Public Policies, Youth, Education and Work, and the Design of investigative proposals. Together with UNICEF she has elaborated the investigation ‘State of the Art Research on Adolescence in Chile’ and has worked as a National Director of the National Youth Institute. Former National Director of the National Service for Minors (SENAME) in Chile. On the field of investigation, Paulina has collaborated in, amongst others, the study ‘Construction of a methodological theoretical model for the measurement of the social integration’ and in the project ‘Development and test of a methodological theoretical model for the evaluation of drug programmes’, studies elaborated by the School of Psychology of the University Diego Portales.

Question.- What was the situation of juveniles in conflict with the law before the ‘Law on criminal responsibility of juveniles’ was approved in Chile?

Answer.- Currently, minors of 16 years can not be punished by criminal law, while adolescents between 16 and 18 years old must be trialled first on their discernment. If they are considered able to discern, they are trialled as adults, with hardly any reduction of the punishment they can receive. This means that the fact that they are adolescents, that they are immersed in an educational process, is not taken into consideration. On the other hand, if they are considered unable to discern, they can be placed under protective measures, usually detention, without the necessary guarantees. In general, at the present adolescents do not have any guarantee of the necessary process. They are not only judged for the commitment of the crime but also for life situations and they do not have any alternatives nor efficient opportunities to obtain their social reinsertion.

Q.- What main changes or improvements does this law contribute to the juvenile’s welfare?

A.- As soon as this law comes into force, the adolescents subject to this law will have all the guarantees civilians have against criminal pursuit. They will also have some special guarantees due to their ‘educational condition’, like concentration and immediacy of proceedings, the possibility to have legal assistance during the fulfilment of the punishment, the right to make a statement to the police in presence only of their council, the possibility to take into account, during the application of the punishment, the major interest and the suitability of the punishment to obtain their social reinsertion, etc.

Q.- At what level or levels will minors notice this change as a result of the recently passed law? (Seen from the minor’s point of view)

A.- Adolescents will notice the changes directly in their daily life, both in the lives of those who have been charged with a crime as of those who are serving a punishment. The main changes concern a higher respect of their rights, a reinforcement of the services aimed at restoring those rights that have been violated, better opportunities to obtain an efficient social reinsertion and, although it may sound paradoxical, better opportunities to assume responsibility of the consequences of their actions and, therefore, to choose different alternatives to delinquency.

Q.- Which principles will be used to assure the integration of the protection of the rights of the child and adolescents?

A.- According to the principle of the separation of channels, it is important to separate the reaction of the State towards adolescents violating the criminal law and the response concerning the protection of their violated rights. However, we cannot forget that the rights of adolescents, who commit a crime, are or have been violated. Therefore a full protection of those rights means that they do not only include the guarantees that each citizen has in criminal proceedings, but that they also need the implementation of extra alternative protective measures. These measures allow the adolescent to have access to the offer of specialized restoration of their rights in a voluntary way. The adolescent can have access to different treatments: detoxification of drug abuse, mental health programmes, violence and abuse management, etc. Generally, they also need restoration of the stigmatization and criminalisation processes they have been subjected to as a consequence (or not) for having violated the criminal law.

Q.- What is the age range for the application of this Law?

A.- The Law will be applied for adolescents between 14 and 18 years old.

Q.- What kind of custody measures will be applied after the Law comes into force?

A.- The Law will provide ‘garantía judges ’ to apply deprivation of liberty as a cautionary measure as a reaction to the accusation of a crime. Deprivation of liberty in closed and semi-closed regime is also considered as sanctions. In centres with a semi-closed regime, the adolescents will sleep at the centre and will develop activities during the day both inside and outside the centre.

Q.- What kind of training will be given to the people in charge of the educational programmes for minors in conflict with the law?

A.- People in charge of attending directly to the adolescents, the so called ETD (Direct Treatment Teachers), have to receive training in, amongst others, law and its regulation, the specific needs of the adolescence, the management of conflicts and crisis situations, the criminal peculiarities of adolescent crimes and the self-care in a team.

Q.- Which principles and mechanisms will be used to establish the criminal responsibility of the minor?

A.- The punishment system of this law depends mostly on the punishment system established in the Criminal Code. The law establishes rules to determine both the duration and the nature of the punishment.
Concerning the duration, and taking into account the kind of crime committed by the adolescent, article 21 of the law allows reducing immediately by one degree based on the minimum established by the criminal law for the respective crime. If there are extenuating or aggravating circumstances, the judge can reduce or increase the penal degrees. Once this phase is finished, he has to establish the nature of the punishment, choosing, according to the seriousness of the offence, out of a range of punishments, depriving minors of their liberty or not. To make his choice, the judge can apply the traditional judicial criteria, apart from the age and the suitability of the punishment to obtain the adolescent’s social reintegration.

Q.- Which circumstances have caused the postponement of the coming into force of the law 20.084 on the criminal responsibility of adolescents?

A.- The postponement of the law was caused by the lack of a complete programme offer, especially concerning the necessary infrastructure for the deprivation of liberty sanctions in semi-closed regime. Furthermore there was no adequate and installed multi-sector offer, both for adolescents deprived and not deprived of their liberty, which would allow to respect the standards established in the law concerning the access to regular education, professional training and the specialized treatment for mental health and detoxification, etc. There was also an insufficient training of the different actors in charge of the implementation of the law, the absence of an information system which allows to estimate the workload of the system and the follow-up of the punishment system and, finally, a lack of adaptation of the intervention models to the objectives of the law and the standards of the social reintegration demanded by the law.

Q.- At what level this new penal system for minors will be different from the adult penal system?

A.- The main difference with the adult criminal system is, in my opinion, the punishment system, where you have a wider range of punishments than the adult system. There exist for example a series of special guarantees, the possibility of replacing or ending in advance the punishments, the control by a judge of the fulfilment of the punishments and a reinforcement of the social reintegration work concerning the programmes.

Q.- What are the programmes or the alternative resources that replace the deprivation of the minor’s liberty?

A.- The Law establishes the following non-custodial measures: a reprimand, fine, amends for the caused damage, community based sanctions, probation and special probation. Furthermore, alternative measures can be added to the proceedings in the framework of the criminal legal code (which can be applied in a supplementary way) like restorative agreements and conditional adjournment of the proceedings, apart from the non-custodial cautionary measures.

Q.- When the law comes into force, what kind of psychotherapeutic resources will be available for minors?

A.- The National Council for the Control of Narcotics (CONACE), organism specialized in the control and prevention of drug traffic and use, will install in the detention centres and short stay centres, equipment for the treatment of drug abuse as well as, in coordination with the Ministry of Health, equipment for the treatment of serious mental health problems. A similar offer will be installed in the open regimes for those adolescents that are fulfilling non-custodial measures. The National Service for Minors will also offer the adolescents that are fulfilling cautionary measures or punishments, a series of protectional measures which include specialized psychotherapeutic intervention.