Bill 740.

Summary.

The bill amends Article 7 of Law 40 of August 26, 1999 to limit its application to children under twelve (12) years of age when the offense occurs. It provides that anyone who has reached twelve (12) years of age would be investigated, tried and sentenced under the ordinary system, in accordance with the Criminal Code (Código Penal) and Criminal Procedure Code (Código Procesal Penal), with constitutional and procedural safeguards. Children under twelve (12) would remain subject to a special protection system. The amendment to Article 8 distinguishes people aged twelve to under fifteen from those aged fifteen to under eighteen, and provides for ordinary criminal procedure in specified exceptional cases from age ten, following an assessment of capacity, maturity and understanding of unlawfulness.

The amendment to Article 9 excludes children under ten from criminal liability and assigns child and adolescent judges responsibility for protection, treatment, psychological care, family guidance and reeducation measures. For children aged ten to under twelve, it lists intentional homicide, aggravated homicide, femicide, homicide for payment, reward, promised remuneration or commission, terrorism resulting in death, and the intentional killing of two or more people. Through an interdisciplinary assessment, the court must establish all the required conditions: understanding of the act and its unlawfulness, direct intent, capacity to govern one’s conduct and absence of coercion, threats, manipulation or direct use by an adult. If those conditions are not established together, the child would be declared not criminally liable and referred to the child and adolescent jurisdiction.

The bill adds Articles 35-A, 35-B and 35-C to the Criminal Code. A finding of exceptional criminal capacity would require forensic assessment, a special hearing, a reasoned judicial decision, specialized defense counsel, participation by the Public Prosecutor’s Office (Ministerio Público) and proof of age. The penalty prescribed for the offense would apply, subject to a possible reduction of up to one third based on personal circumstances. Certain penalties and forms of confinement would be prohibited. Sentences would be served in a specialized facility; on reaching eighteen, a hearing would determine whether the person remains there or transfers to an adult facility. The bill also increases the penalty for an adult who uses a person under eighteen to commit an offense against life. The amendment to Article 67 governs referral of cases to the child and adolescent jurisdiction and, for exceptional cases, to the Public Prosecutor’s Office in the ordinary criminal jurisdiction.

The remaining provisions guarantee specialized defense from the first investigative act, a representative’s presence, identity protection, preliminary assessments, review of precautionary measures, appeals and separation from adult facilities. Provisional detention is limited to the specified circumstances and must take place in specialized premises. The bill sets factors for determining the penalty. It directs the Public Prosecutor’s Office to investigate conduct or omissions of parents, guardians and other legally responsible persons connected with the offense; criminal liability requires sufficient proof, and complementary family measures are provided. Their civil liability would be decided in a separate proceeding. The Ministry of Government (Ministerio de Gobierno) would establish specialized units providing education, health care, treatment and reintegration programs. Convictions would be reviewed automatically every two years. The provisions would apply to acts committed after entry into force; the Executive Branch would issue regulations within six months of promulgation, and the law would take effect six months after promulgation. Contrary provisions would be repealed. The bill could concern criminal and child and adolescent courts, the Public Prosecutor’s Office, the Ministry of Government, families, victims, forensic professionals and services providing care and education to minors.