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Guest writer for CRIN, Henrique de Souza, from the Brazilian Bar Association, looks at the recently approved proposal to lower the minimum age of criminal majority in Brazil, and reviews the next steps for opposition groups.
[14 July 2015] - In the early hours of 2 July, the Brazilian Chamber of Representatives passed a bill lowering the age of criminal majority from 18 to 16 in the constitution for cases involving serious offences. Just 24 hours earlier, many local activists had expressed relief when a similar proposal was rejected after it failed to get the two thirds of total votes necessary to pass. Nonetheless, the approved bill sets out broadly similar provisions to the rejected proposal, except that it does not include drug trafficking and aggravated robbery as punishable offences. Under the approved bill, 16- and 17-year-olds can be tried as adults for so-called heinous crimes, namely aggravated murder, serious bodily harm resulting in death, aggravated extortion, and rape.
The bill was originally proposed in 1993, but until recently it appeared to be a distant possibility. Various political factors account for the bill's passage at this time. A recent political crisis meant that the government had lost its bargaining power with political allies, while the opposition continues to push measures to weaken the government, leaving space for conservative groups to promote their agendas. In this case, the Chamber floor voted in favour of the proposal to lower the age of criminal majority in a 323-155 vote after the bill was hastily passed through the special commissions where most of the discussions take place.
Nevertheless, the truth of the matter is that approval of the bill would not have been possible if public opinion was not already overwhelmingly in favour of the change. Recent polls point to an 87 percent approval to lower the age of criminal majority. A general sense of public insecurity and impunity has stemmed from alarming indicators on violence and media exploitation of violent crimes committed by adolescents, culminating in recent displays of vigilante justice. As the bill was suddenly rushed through the Chamber, it meant that there was no time for public debate. Civil society has been mobilising to foster this debate, though with limited possibilities.
Soon after the vote took place, a group of politicians from a wide range of parties filed an injunction order at the Supreme Federal Court to have the vote rejected. But this request was denied last week, pending further discussion from the plenary court. President Dilma Rousseff has expressed her opposition to the proposal; but the lack of presidential sanction or veto powers for the enactment of constitutional amendments limits her impact.
The bill will go to a second vote after the Lower House of Congress returns from recess in August. A version of the first bill that sought to lower the age of criminal majority for all offences will also be reintroduced. If approved, bills then continue to the Senate.
The Brazilian Bar Association and national NGOs are studying ways to challenge the bill in case it is passed. They argue that the way in which the bill was introduced and passed was unconstitutional as it did not meet legislative procedural requirements, which do not allow the subject of a rejected constitutional amendment to be presented to Congress in the same congressional year. Indeed, efforts by the chairman of the House to introduce the bill and get it voted on so quickly has been criticised as an aggressive procedural maneuver.
Despite this, initial signs point to the legality of the procedure based on the internal rules of the Chamber. The main discussion then will be around the applicability of the Eternity clause for the age of criminal majority, namely Article 60, §4 of the Constitution which establishes that “individual rights and guarantees” cannot be abolished.
Whatever the outcome, heated discussion is expected to continue. Considering the current political situation, it is not expected that the Supreme Court will make a bold move; but any statement or discussion could serve to delay the bill and gain valuable time for public debate on the matter. At the same time, a u-turn in Congress seems difficult, although a preliminary poll on the Senate pointed to a possible rejection of the bill.
Meanwhile another bill has just been approved in the Senate, which seeks to raise the period of detention for children for up to 10 years, starting at age 12. It is worrying that this is been treated as a more beneficial alternative to the approved constitutional amendment.