And what is the maximum time of the measure, is it the same as when sentencing an adult?
No, it should be remembered that custodial sentences “are the most exceptional measures”, that is, they can only be imposed on minors in age groups II (from 14 to less than 16 years old) and III (from 16 to less than 18 years old).
For age group II, the maximum duration of the measure is “3 years”; while for age group III, the maximum duration of the measure is “5 years”, i.e., here the criminality of the crime for which the measure is imposed does not have a weighting at the time of applying the penalty, so the judge can only apply the measures for these maximums.
MAXIMUM AGE GROUP FOR THE DURATION OF THE MEASURE
(GROUP II) From 14 to less than 16 years of age. 3 years.
(GROUP III) From 16 to less than 18 years of age. 5 years.
Likewise, it is necessary to specify that these measures of deprivation of liberty can only be imposed when any of the typical conducts are deployed, such as: Kidnapping; Kidnapping; Kidnapping; Kidnapping; Kidnapping; Kidnapping; Kidnapping; Kidnapping; Kidnapping; Kidnapping:
- Trafficking in persons;
- Aggravated extortion;
- Against health.
- Firearms and Explosives Crimes;
- Homicide, Feminicide;
- Malicious wounding, endangering life; and,
- Aggravated robbery (committed with violent means).
That is to say, only for any of the crimes mentioned above, the judge “according to each case” must weigh the suitability of applying this measure of internment, “FOR NO OTHER CONDUCT can this measure of internment be applied.
Therefore, no measure of deprivation of liberty can be imposed on minors who are in the first age group (from 12 to less than 14 years of age), even if they have committed any of the previously mentioned conducts, in that case, the judge must weigh the non-restrictive measures that are more suitable for the specific case.
But why can they be behind bars for such a short period of time?
Well, we must remember that although they committed these behaviors and perhaps we could say that they have full intellectual capacity, the legislator has intended to ensure that these juvenile offenders can reflect on their actions with measures that effectively ensure not only their social reintegration but also their reintegration into society.
A case of great social impact that is worth remembering is the case of “El Ponchis”, a 14-year-old minor who published photographs posing with weapons, drugs, cars and slitting the throats of his adversaries. This adolescent was part of the “Los Beltrán Leyva” cartel and, despite the atrocity of the unjust acts he committed, he should be considered as an adolescent and punished according to the rules established for this purpose. This does not mean that minors in our country enjoy full impunity, since criminal law reacts through the imposition of a security measure.
And if a person turns 18 years old on July 23, 2021, and on July 22 of the same year, this person deprives another person of life, should he or she be tried as an adolescent?
The imputability is fixed at the moment of the commission of the offense. Consequently, in the case in question, the criminal sanction could not yet be applied to him, and therefore only a security measure would be applicable.
What happens if Juanito Perez rapes a girl when he was 16 years old, runs away to the United States, returns and is arrested for this crime when he is 20 years old, should he be tried as an adult or as an adolescent?
As I specified in the previous question, imputability is established at the time of the commission of the offense, therefore, if he committed the offense of rape when he was 16 years old, he must be tried as a minor; however, if it is determined that a custodial sanction should be applied, he would have to serve it in an adolescent reinsertion center, but in a separate area, that is, he will not be “mixed” with the minors.
In conclusion, a minor CAN go behind bars, when his conduct fits any of the above mentioned crimes; however, the duration of the security measures as we have seen “is totally different” than the penalty imposed on an adult, remembering that the motivation for this lies in the fact that the purpose of these two figures is very different.
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