The issue to be addressed in this investigative work is the importance, application and deficiencies of Decree-Law 64/82 in which a system of care for children under 16 years with behavior problems is ordered where care is established from the point of view preventive to these minors who are not yet responsible for their person. The Ministry of Education, the Ministry of the Interior and social workers intervene in this task, who together adopt reorientation and re-education measures with the flexibility and agility that each case requires.
Introduction
This research work is aimed at the analysis of Decree-Law 64 of the System for Attention to Minors with Conduct Disorders which arises due to the need for special attention to children under 16 years of age who, despite presenting deviant behaviors, have not yet They have all the well-formed personality characteristics to be held criminally responsible. In this Decree-Law of 1982 three categories are established in which those minors with conduct disorders are grouped, taking into account the social dangerousness of their actions. These categories are taken as a starting point for the adoption of reorientation and reeducation measures, ensuring that they are not violated by the different bodies of the Ministry of Education and Ministry.
With this work, in addition to contributing to a better understanding of Decree-Law 64, its analysis is stimulated, its importance, application in our society as well as deficiencies that have not yet been resolved and should be resolved in order to the future.
Development
In this work it is necessary to refer to some concepts that in one way or another will be mentioned during its development, they are:
Minor: This term has its origin in the Latin word minor and is what distinguishes man as a person between those who have not yet reached the full development of their personality and those who have already obtained it.
In our environment, those who have not yet reached the age set by law to enjoy full legal capacity, recognized with the age of majority, are considered minor.
Juvenile offender: is the person who has not reached the age required by criminal law to be criminally responsible and performs an act that the law considers criminal, since he lacks the intellectual and volitional maturity necessary to understand the unlawful significance of his conduct and act according to that knowledge.
Behavior: it is the individual way and form that each person has of manifesting themselves in social communication and that is characterized by certain objectives, motivations and attitudes, taking this definition as a starting point, the following concept is assumed.
Conduct disorder: deviations that occur in the development of the personality of minors, whose behavioral manifestations are varied and stable, essentially in family, school and community relationships.
These deviations are fundamentally based on external negative influences, associated or not, with unfavorable internal conditions.
The System of Attention to Minors with Behavioral Disorders regulated in Decree-Law 64 of December 30, 1982 is governed by the Ministries of Education and the Interior, which serve minors under 16 years of age who present behavioral disorders, antisocial manifestations, whether or not they become significant indices of deviation and social danger, or participate in events that the law classifies as crimes and has the objective of reorienting or re-educating them. In addition, the system establishes different categories of care in order to avoid the possibility of secondary deviance, those with the least behavioral deviation are attended by the Ministry of Education (MINED) and those with the greatest deviation by the Ministry of the Interior (MININT), even in these of greater deviation,Minors who decide to be admitted to Reeducation Centers are divided according to the degree of deterioration in their behavior and their age, receiving multidisciplinary and specialized care according to the case. The categories are as follows:
First Category: Minors who present serious indiscipline or permanent behavioral disorders that hinder, given the complexity of the maladjustment, their learning in the schools of the National Education System.
Second Category: Minors who present antisocial behaviors, antisocial manifestations that do not constitute significant indices of deviance and social dangerousness, or who incur antisocial acts that do not show great social dangerousness in their behavior, such as, certain intentional or reckless damages, some appropriations of objects, mistreatment of work or injuries that do not have greater entity, and public scandal, among other behaviors, not very dangerous, according to the scope of its consequences.
Third Category: Minors who commit antisocial acts of high social danger, including those who participate in acts that the law classifies as crimes, repeat offenders in this sense, those who maintain antisocial behaviors that show significant rates of deviance and social dangerousness, and who manifest such behaviors during their care in special schools governed by the Ministry of Education.
This Decree-Law regulates that in cases of the first category they are attended and resolved by the Councils of Attention of the Ministry of Education, as well as those of the second category that are presented or manifested in the schools of the National Education System, after a report from the school principal. The Ministry of the Interior will deal with cases of the second category that manifest themselves outside the schools and those of the third category regardless of the place where they occur, after a report or complaint presented by any person.
In the third category, there is an aspect that is included and that of recidivism in behaviors that determined the classification of the minor, as well as the inclusion of minors of manifest and significant danger that could be compared with the dangerousness indexes provided for in the Penal Code (drug abuse, pimping) and other behaviors of a severe antisocial nature.
In addition to the Ministries of Education and the Interior, which govern the system, other bodies intervene such as:
- The Organizational Units of both Ministries, which are those that functionally direct the System according to the competence of each organism, a Provincial Commission subordinate to the People's Power (Government) and that of the special municipality of Isla de la Juventud, these commissions decide the most appropriate treatment in cases of discrepancies that are referred to it by the Councils for Attention to Minors The National Council for Attention to Minors subordinate to the Ministry of the Interior, which controls the functioning of the Provincial Councils subordinate to this body, examines when it deems appropriate and necessary the measures provided by them and decide the ratification, modification or invalidity of said measures.The Provincial Councils give Attention to Minors attached to the Education Directorates of the Local Bodies of the People's Power and to this Municipal instance in the case of Isla de la Juventud. The Provincial Councils and the special municipality Isla de la Juventud subordinate to the Ministry of the Interior. These Provincial Councils (either the Ministry of Education or the Interior) are the ones that establish the corresponding measures on minors, monitor their execution and decide on any change in the measures provided. The Diagnostic and Orientation Centers (CDO) dependent on the Directorates of Education and the Centers for the Evaluation, Analysis and Orientation of Minors (CEAOM) of the Ministry of the Interior that carry out a study of the personalities of minors,of the events in which they participate and recommend the pertinent measures to be adopted The Schools of Conduct of the National Education System that have the responsibility of achieving the integration of students into school and social life through the creation of appropriate patterns of behavior, assisted For this purpose, educational and reeducational means and techniques, as well as offering them a general, polytechnic and labor preparation in accordance with the characteristics and schooling of the minors treated.The Reeducation Centers of the Ministry of the Interior, in charge of modifying bad habits and educational defects and ideological that have contributed to the social deviation of minors, in addition to influencing the formation of a personality in accordance with the demands of our society through general, polytechnic, ideological education,physical, moral and aesthetic of the minors and once the behavior has been modified, achieve their social reintegration in school or work life according to the case.
The work that these centers have with the families of minors is essential with a view to incorporating them as an integral part in the treatment of their children and to contribute to modifying behavior habits in the family environment.
- The organs of the police who investigate the facts in which minors have participated, including their behavior in general and that of their family environment, their social ties, providing the results of this comprehensive investigation to the Councils for Attention to Minors.
The system established by the Decree-Law offers a diversity of alternatives for the application of a fair and casuistic treatment of the minor, with measures such as:
- Internment or compulsory attendance at a School of Conduct or internment in a Reeducation Center Compulsory detention in a healthcare establishment of the network of centers under the leadership of the Ministry of Public Health Obligation of outpatient medical treatment Surveillance and care by the Ministry of Health Interior. Enhanced surveillance of parents, guardians or persons in charge of the minor. Individualized attention in the schools of the National Education System, in cases where it is feasible to correct the behavior without the need for internment in specialized schools. Location of the minor. as a trade apprentice, in a workplace, prior coordination, which includes the base union organization and in accordance with current labor legislation.Attention by social workers of the Federation of Cuban Women.
The measures of internment referred to are administered as a last resort, since emphasis is placed on providing external treatment.
Compliance with one or several measures that are decided is mandatory and any opposition by parents or legal representatives to this or another provision of the bodies that make up the System constitutes a crime of disobedience, provided for and sanctioned in article 134 of the Penal Code. On the other hand, when the Council detects the breach of obligations by parents or legal representatives in the treatment of their children, they are warned that if the lack of attention to the minor continues, it may constitute a crime against normal development or abandonment All of which is recorded in the minutes and if this behavior continues, they are brought to the attention of the prosecutor.
The term of the measures depends on the evolution of the minors, which is systematically assessed by the specialists of the Provincial Council of Attention to Minors. A significant aspect is that the cases of minors who reach 16 years are foreseen and that during their care in the centers where they are interned (Conduct Schools or Reeducation Center) it is decided that it is advisable to continue their care, extending this until the 18 years, to complete their reorientation or because the treatment goals have not yet been met.
The promulgation of Decree-Law 64 of December 30, 1982 that created the System for Attention to Minors with conduct disorders constituted an important step forward in the care of these minors and marked a new stage in the conception, treatment and methodological work for their education and re-education and remove them from Criminal Law by replacing the traditional criminal legal system in force with one based on pedagogical, sociological and legal conceptions whose competence is fundamentally determined by the entity of the lack or danger that minors present.
Precisely for this reason, the treatment of behavior disorders in minors under 16 years of age does not correspond to the courts of justice, but is a task of education, that is, it requires an educational treatment with the flexibility and agility that each case requires. Minors cannot be held criminally responsible, which is nothing more than treating them as if at their age they could discern between good and evil as an adult would.
Fortunately in Cuba, the minor ceased to be a subject of crime and began to be treated under the doctrine of comprehensive protection with psychopedagogical and social and non-repressive treatment, being one of the highest achievements in criminal matters.
Decree-Law 64 implements a coherent and planned system where the Ministry of Education and the Interior adjusts its efforts for the sake of prevention, re-socialization and adjustment of deviations with the conduct of minors.
2.2. Shortcomings
In the Cuban System of Attention to Minors, as has been said previously, minors are not criminally responsible, regardless of the result of their actions and are not tried by courts of justice, so the minor does not have the procedural guarantees that usually be known in the so-called liberal process that includes the well-known rules of due process, the legitimacy of the evidence, the right to defense in any stage of the process, the state of innocence (called presumption of innocence) and the appeal of habeas corpus, when is the commissioner of a criminal act, or exhibits antisocial behavior, determining, for example, their internment or compulsory attendance at a School of Conduct or internment in a Re-education Center, depriving the minor of the aforementioned procedural guarantees.
Such deficiency may find its justification in the fact that our system of care for minors instituted by Decree-Law 64 regulates psychological, non-repressive, showing social guarantees, lacking any type of repression that is harmful for a real and non-technical rehabilitation of minors, since from the moment inappropriate behavior is detected until an act classified as a crime is known, various bodies intervene that do not give rise to doubts that there may be helplessness of these minors with problems. In the first place and before adopting any type of measure, the parents or legal representatives are immediately informed so that they are present during the process that is followed and if their presence is not possible for various reasons, the prosecutor is notified.
To guarantee compliance with socialist legality in the prosecution of juvenile offenders in Cuba, the Councils have been empowered to control the processes and procedures of instructed minors, this management consists of the knowledge that the Councils of each one of offenses committed by minors and possess the highest degree of information possible that allows the Council to oversee the entire process, ensuring that the terms established for each body are not violated and that, on the contrary, it is made agile and flexible, so that the taking measures is increasingly immediate to the act committed and therefore they have an educational and moral character in each case.
On the other hand, the Provincial Council controls and reports the circumstances of the cases to the National Council and both act on the other bodies that intervene in the System, in order to avoid violations in the process.
The personal conditions of the minor and the characteristics of the event are assessed by the police and the Juvenile Prevention Officers and at its discretion it may be decided not to process it, if there is a need for a process, the minor is evaluated by a technical team made up of psychologists, pedagogues, psychiatrists, doctors and jurists, all the documentary evidence is compiled to initiate a file that is sent to the Council of Attention to Minors constituted by a multidisciplinary team (psychologists, pedagogues and jurists) who carry out a detailed study of the case and carry out an initial interview with The purpose of deepening the knowledge of the misconduct or the facts that are attributed to the minor. Supplementary instructions can be made if necessary to delve into some extreme.
Parents or legal representatives participate with their child in the aforementioned interviews. Subsequently, the case is analyzed in a collegiate way where different factors participate and have opinions, the Prevention Officer who attends to the minor, the social worker, the delegate of the Popular Power and as many people as necessary, in this socializing way the members of The Council agrees on which measures should be applied and the role to be carried out by the executors of these to provide the specialized treatment that it deserves.
These measures, which can be external or internal, are notified in another interview with the parents and the minor and in case it has been decided to officially warn the parents, it is in this act where the warning is made, it is also reported the measures to the bodies that must execute them. If the measure is internal, the parents or legal representatives can visit the minor in the Center and also based on their evolution, the minor becomes a creditor of permits or passes that contribute to maintaining communication with their family and social environment.
The Councils for Attention to Minors periodically receive information from the bodies in charge of executing the measures of the minor's evolution and for their part, the Councils systematically check the execution of these measures, either at school, in the area of residence, in the School of Conduct or the Reeducation Center, as the case may be, examines the evolution and analyzes in case of regression what factors are influencing, adopting the pertinent measures for its solution. Based on the information obtained from these checks, the Boards can assess the measures and decide to maintain, modify or discontinue them.
The National Council of Attention to Minors conducts review processes in the face of claims from parents, legal representatives, family members or bodies executing the measures and in its decision, which is irrevocable, those imposed in the first instance may be modified, ratified or ceased. It is pertinent to specify that the information processed about the minor is strictly for the use of specialists, that is, it is in no way taken as a criminal record or published in the mass media. It is worth noting that during the entire process minors can freely express their criteria, always in the presence of their parents or legal representatives. Prosecutors, whose fundamental obligation is to ensure compliance with the law, have access to the existing documentation on the minor,but under no circumstances can it intervene in the decisions, care and treatment of the minor.
All of the above shows that the aforementioned deficiency is not entirely insufficient, since its justification is found in the explanation made.
Another deficiency of Decree Law 64 is evidenced in the reading of its article 11, which stipulates that minors who have participated in intentional acts that appear in the Penal Code and represent a high level of danger in their active agent, upon reaching 18 years of age. age, the Provincial Council of Attention to Minors, may adopt if the person still has a significant index of social danger, a measure of internment in a center for the elderly that may not exceed five years.
Which occurs without the minor who has already reached the age of majority having the right to the corresponding process as happens with the other subjects of daily life who are over 16 years of age (age from which they are criminally responsible) they break the law and are brought to trial where they are heard by a court and defended by a lawyer. When the minor reaches the age of 18, he ceases to be a minor, so as of legal age he must finally have the same opportunity that the law grants to the adult commissioner of a criminal act, in this way the courts will be who will decide whether or not to continue confined from that moment in a penitentiary center.
In addition, article 11 of Decree Law 64 establishes that the Council of Attention to Minors adopts such a decision when the person has reached 18 years of age, however from the age of 16 that minor is criminally responsible according to the Penal Code (Law 62) in its article 16.2, which is why the measure being accepted is a bit late, evidencing incompatibility of laws.
Conclusions
Almost always at the end of a work, many people expect to read a long list of conclusive recommendations, as a sample of an efficient investigation, it is not intended to criticize this principle, only that the subject presented here is a challenge to every psychologist, pedagogue, jurist, sociologist, etc., of our present time.
In world practice, there are penitentiary establishments for children or juvenile offenders, on the contrary, in Cuba several types of special institutions have been conceived capable of guiding and directing the reeducational and re-socializing work of minors with certain types of disorders. Well, even when the offending act carried out by the minor is of the same circumstances and consequences as that committed by an adult, these minor offenders must be cared for and treated but based on the deterioration suffered by their personality and therefore fight to amend their behavior and re-socialize them through a reeducational program and not punish them.
In addition, the investigation carried out shows how the situation of minors can lead to more unfair situations than those faced by an adult offender who is formally protected by the guarantees of a liberal process such as due process, the state of innocence, and the right even a Habeas Corpus.
On the other hand, despite the fact that with the International Convention on the Rights of the Child, new paths have been opened in favor of Guaranteed Minority Justice, there is still much to define and do, especially because although it has guaranteed non-disclosure in advertising media, do not escape the terrible and cruel phenomenon of stigmatization, undoubtedly these will be marked forever.
Finally, it must be recognized that the crime and the offender are the product of the social environment, which is why internment can be limited, leaving it as a last resort exceptionally for a specified time and for the shortest possible time, applying measures that not only re-educate the minor but also to your living environment.
Bibliography
Decree-Law 64 of the System for the Attention of Minors with Conduct Disorders, of December 30, 1982. City of Havana, Palace of the Revolution, 1982.
Interviews conducted with:
Andrey Armas Bravo, Secretary of the Provincial Council of Attention to Minors (CAM).
Isabel García Morell, Director of the municipal Diagnosis and Orientation Center (CDO)
Ihovanny Reyes Castro, professor at the José Martí University Center.
