The Code of Children and Adolescents: Comments on a Misunderstood Law

The resignation of Carlos Emilio López, Special Attorney for Children and Adolescents from the Human Rights Defense Attorney’s Office, expresses the crisis currently affecting this recently created institution. This article discusses its financial, ideological, political and cultural problems.

José Luis Rocha

The Office of Special Attorney for Children and Adolescents, which forms part of the Human Rights Defense Attorney’s Office, was created in 2000. In its first report the following year, the office presented itself as dedicated to fostering “a culture that promotes, defends and respects the human rights of children and adolescents in the family, the state, the community and society.” Its work is legally based on the Nicaraguan Code of Children and Adolescents and its main objective is to ensure the code’s fulfillment.

Emphasis on specialized penal justice

Law 287, otherwise known as the Code of Children and Adolescents, was passed on May 12, 1998, supported by article 71 of the Constitution, which establishes the full legal validity of the UN Convention on the Rights of the Child. The code was to be the legal instrument for putting into effect the rights set out in the convention and favoring the “stable maturation” of children and adolescents—which comprise well over half of Nicaragua’s population.

Although it regulates all aspects of child and adolescent development, the code has an evident emphasis on penal justice. While its first two books—which address child and adolescent rights, freedoms, guarantees and duties, as well as the policy of the Council for Comprehensive Attention to Children and Adolescents—contain just 90 articles, the third book, which is just on the penal justice system, has 132. One of the first of the complex concerns comprehensively covered in the code is the problem of adolescents at risk. It establishes in the first few lines that “a new model of adolescent penal justice must be introduced that guarantees due process and is oriented towards integrating adolescents into the family and society.”

The code regulates comprehensive protection of children (defined as being under the age of 13) and adolescents (13 to 18), laying out norms that replace the 1973 Law for the Protection of Minors, its 1974 reform and its 1975 regulation. The new law, nearly a quarter of a century later, offers minors notable advantages. It also fills a gap, as the previous legislation offered no protection for 15-18 year olds, who were considered jail fodder and sent to prison together with all kinds of adult criminals. One effective result of applying the code was that the new district juvenile criminal courts across the country received 15,612 cases that would previously have ended up in the adult courts.

With respect to sentencing, the code distinguishes among the three age groups: children under 13, who are exempt from penal responsibility; adolescents between 13 and 15, who are subject to book 3 of the code with the exception of being deprived of their freedom; and those between 15 and 18, to whom book 3 applies in its entirety. Among other advantages, the code protects adolescents accused of crimes from delayed justice and proposes conciliation between victim and perpetrator as a possible solution that does not leave the offender with a criminal record.

With an issue “that sells”
during a government that steals

The world has witnessed a human rights boom since 1990. A whole host of conventions and new regulations have emerged and a whole host of governments have rushed to sign them. Nicaragua’s Code of Children and Adolescents, for example, is based on the Declaration of the Rights of the Child, proclaimed by the United Nations in 1959; the UN Standard Minimum Rules for the Administration of Juvenile Justice (“The Beijing Rules”), adopted in 1985; the Convention on the Rights of the Child, ratified by the UN in 1989; the UN Guidelines for the Prevention of Juvenile Delinquency (“The Riyadh Guidelines”), adopted in 1990; and the UN Rules for the Protection of Juveniles Deprived of Their Liberty, adopted in 1990.

According to Carlos Emilio López, who recently resigned as Special Attorney for Children and Adolescents, all of these conventions have been ratified because the issues of children and human rights have “good national and international selling power.” This international context explains the approval of the Code of Children and Adolescents in Nicaragua. A country’s commercial incorporation into the world markets is followed by legal insertion into international politics and law. It is naturally a weak insertion in Nicaragua’s case, owing more to the opportunist expediency of national politics.

Nicaragua’s Code of Children and Adolescents (1998), its Special Attorney’s Office for Children and Adolescents (2000) and its Law for the Promotion of Comprehensive Development of Youth and the latter’s accompanying plan (2001) all emerged during the government of Arnoldo Alemán, which was characterized by caustic relations with the European Union and US governments, NGOs and virtually all international cooperation institutions. Alemán opted to administer a nominal rule of law to mitigate the effects of the corruption scandals that sullied his government’s reputation right from the start.

While this was his way of sucking up to international cooperation, it also offered opportunities in his Cabinet for professionals well-versed in international legislation, some of them members and supporters of the FSLN, which had been involved in a pact with Alemán to share out the juiciest, most politically influential state posts since 1998. The result of all of this was a mixture of technocracy and the politicization of state institutions along party lines.

The most controversial articles

The code has been widely criticized since its passage, not because of the rights and duties it establishes or its “philosophy” on children and adolescents. The source of discontent is concentrated in the code’s third book, which many believe safeguards the impunity of juvenile offenders. Of particular concern is article 86, which specifies that “when a minor is charged with commission of a crime, the judicial authority must refer the juvenile offender to the relevant administrative authority so it can offer him or her comprehensive protection and safeguard and protect his or her rights, freedoms and guarantees.”

Article 101 causes even more irritation by establishing that an adolescent has the right “not to be admitted to an institution—unless by written order of the relevant judge, as an exceptional measure and for the shortest possible time—and not to be prosecuted and tried more than once for the same offense, even if the legal charge is modified.” Another article seen as encouraging impunity is 105, which states that “when two different laws or regulations can be applied to an adolescent, the one least damaging to his or her interests shall always be applied.”

Journalists, shysters, columnists, legislators and many other public opinion makers have swamped the media with criticisms of the code. Christian Way, an evangelical political party on the verge of extinction, adopted one of the most extreme and belligerent positions in 2002. Citing an alarming increase in crimes by children and adolescents, this “micro-party” presented a bill to reform the code in line with a legal tendency that favors a punitive concept over one of minors’ rights, moving minors closer to adult penal law, making them more responsible for their criminal actions and offering a wider range of punishments for their crimes.

The reform proposed that even 13 to 15 year olds be subject to custodial sentences, inclusion of accomplice and accessory after the fact as categories of juvenile participation in criminal acts and expansion of the crimes for which adolescents can be incarcerated to include conspiracy, threats, damage, disturbing the peace, rustling, and drug trafficking, consumption and cultivation. During the debate on this bill, even the possibility of explicitly categorizing youth gangs as an expression of conspiracy to commit a crime was considered.

The Christian Way purported to be trying to stop the code from shielding juvenile criminals, but it was evident to many, even some who agreed with its leanings, that it was hoping this populist proposal would increase its dwindling social base and bolster its electoral pulling power.

The power comes from outside

The Special Attorney’s Office for Children and Adolescents responded to the reform bill with the publication of a document of “counter-arguments” to “demystify beliefs” about the code. As often happens in Nicaragua, the debate became polarized, with those who considered the code nothing more than a slackening of penal justice facing off against those who felt it finally gave Nicaragua one of the most advanced national laws regarding children and adolescents.

Presenting the code as a “historic landmark because it is the legal instrument that confers the right to have rights on a social sector historically marginalized from social policies and the law,” the counter-arguments focus more on the goodness of international legislation than on the goodness of children’s rights.

In other words, they allude not so much to the qualities of the code itself or the benefits of its application as to its nature as the heir of international legislation. It is more an expression of the globalization of our institutions, in line with the universal tendency of each country’s social, political and economic structures, which are increasingly being incorporated around poles and structures of power that transcend territorial and legal borders.

Highly dependent
on international cooperation

But this is not the fault of the Special Attorney’s Office. In a country in which foreign cooperation matches its total export revenue, perhaps only international authorities could quiet the detractors of a code that both embodies international legislation and makes it operational. The functioning of the Human Rights Defense Attorney’s Office itself largely depends on international cooperation, which is a key hermeneutic element to understanding its problems.

The entire Human Rights Defense Attorney’s Office, including the recently opened Special Attorney’s Office for Children and Adolescents, received a meager state budget of just 20 million córdobas (0.19% of the national budget and roughly US$1.5 million) in 2000, which was cut 7 million córdobas in 2001, Alemán’s last year. While it rose 3 million córdobas in Bolaños’ first year in office, it fell again in 2003, landing at only two-thirds of the 2000 figure and 0.11% of the national budget.

The National Assembly determines the budgetary allocation for the Human Rights Defense Attorney’s Office as a whole, but the head of that office defines the amount subsequently earmarked for each of its three special offices—for children and adolescents, women, and indigenous peoples. According to Carlos Emilio López, this administrative discretion has been the source of more than a few suspicions and conflicts.

With many government officials either members or supporters of the conservative Catholic Opus Dei organization, they exact a price from the Human Rights Defense Attorney’s Office for its close relationship with the United Nations Population Fund (UNFPA)—which they believe to be promoting abortion and sexual promiscuity. The composition of the Office’s budget thus provides a good indication of the costs and benefits of its social capital. Of the 15.5 million córdobas the Office received from the state in 2003, only 6% went to the Special Attorney’s Office for Children and Adolescents, representing 19% of its total income, with the other 81% provided by international cooperation. The financial weight of foreign cooperation in that Office was double the total weight of international organizations in the public sector as a whole (40%) and even in ministries highly dependent on international aid, such as the Ministry of Health (38%).

Foreign cooperation
is today’s divine Providence

The government’s minimal contribution to the operational income of the Special Attorney’s Office surely expresses its minimal interest in the issues involved, while the extent of the foreign support paves the way for increasing external influence over the Office’s work. Through Plan Nicaragua, the Save the Children Alliance, UNICEF and UNFPA, international cooperation effectively sustains the Special Attorney’s Office much the same way it does the Nicaraguan government’s social portfolio in general.

This permanent saline drip has strengthened the links of the Special Attorney’s Office with both international funders and international law. In Nicaragua, legitimacy emanates from international organizations, which are the new version of “divine providence.” According to German thinker Hannah Arendt, authoritarian governments typically present a foreign force with superior power as a source of their own authority because that power legitimizes them. In days gone by, they appealed to divine power and some later also appealed to the myth of the people. But a novel form of providentialism has recently appeared in Nicaragua: faith in foreign cooperation.

As Nicaraguan intellectual Andrés Pérez Baltodano says, “We Nicaraguans perceive history as a process we don’t control. From this perspective, we conceive of politics as the capacity to pragmatically and resignedly adapt ourselves to our condition as a poor country, to the force of established power and the influence of the international forces that condition our reality. We don’t perceive the poverty of others as our problem, but rather as a celestial mystery, or in the best of cases a challenge for international cooperation.”

For ideological reasons
and lack of information

According to Pérez Baltodano, in the historical evolution of Latin America in general and Nicaragua in particular we have arrived at a stage of transnational development, characterized among other things by the fact that “the state apparatus tends to become an implementer of public policies designed within regulatory frameworks that are not subject to popular will.” In the issue of juvenile delinquents, this has been demonstrated in the criticism of the code, the repressive measures against youth gangs (even anti-gang laws in Honduras and El Salvador), the morbid presentation in the media of adolescent offenders and the denigrating labels applied to young delinquents, which produce such a popular echo.

But Pérez Baltodano goes even further, arguing that these kinds of conditions by the world economy arise as international financial organizations impose regulatory frameworks on the region’s countries that determine the processes involved in formulating public policies and models for the organization and functioning of the state apparatus. Quite frequently, these frameworks exclude social values that are highly relevant to the populations of the national states they are imposed on.

Sometimes, as in the case of the Code of Children and Adolescents, they not only exclude values, they also forget prejudices. And that happens because the building of national consensus around a law like this—and many others—is limited to a limited elite of technicians. Just as the IMF only talks to finance ministers when it visits Nicaragua, the participatory processes that gave rise to public policies such as the code consist of meetings between members of the Cabinet and NGO officials who assume the title of “representatives of civil society.” The average citizen receives no information and remains indifferent. Given the lack of information, consensus is produced among a small meritocracy. Carlos Emilio López recognizes two key gaps in the process when he states that the code’s main adversary has been “the whole of public opinion, for ideological reasons and lack of information.”

“One-size-fits-all” reports and policies

It would be difficult to find any documents on juvenile offenders in the Ministry of Government, the Youth Secretariat or the Special Attorney’s Office for Children that haven’t been sponsored, advised and/or completely formulated by international organizations. Most of the time they are based on standardized plans, programs and formulations applied to all countries without considering crucial cultural aspects. Nobel economics laureate Joseph Stiglitz denounced this procedure in the IMF in his famous book Globalization and its Discontents.

The UNDP is the main sponsor of documents on countries like ours, but it’s by no means alone. And while it can’t be accused of having the same capacity for imposition and impact as the International Monetary Fund, its procedures also follow the principle of “this has to be done to get the money,” even when it is not really convinced of the beneficial nature of the enterprise. The one-size-fits-all reports are thus followed by one-size-fits-all policies. We refer to them as “one-size-fits-all” because they concentrate on only a few variables related to the problems they cover—such as teenage pregnancy, unemployment, sexually transmitted infections, contraceptive use, etc.—and never include each country’s sociopolitical and cultural conditions, even though they could strongly influence the effect of these policies.

Valid is not always legitimate

The passage of the code was an important step towards legitimizing the discourse on children’s rights in Nicaragua, but it was far from enough. To understand just how short it falls, it’s worth bearing in mind the distinction made by German intellectual Jürgen Habermas between a law’s legal validity and its legitimacy. Validity is produced when the state authority declares that a given norm is sufficiently justified. For Habermas, the expression “legitimacy,” when applied to current legal validity, implies equitable consideration of all the interests and values distributed in it. Given that justice is not just one value among others and that some values always compete with others, norms can only be legitimized by passing the test of universalization in a juridical community, where the reality of the existing contexts, which always involve conflicting interests, cannot be ignored.

In this respect, the code achieved validity but not legitimacy in Nicaragua. Or, employing another of Habermas’ distinctions, we could say that the moment of rational acceptability has yet to merge with the moment of social acceptance.

Approval of the code means that a certain sector of Nicaragua’s juridical community recognized its correct and fair nature and expressed the desire for it to be applied in the country, but the informal limitations contained in customs, traditions and codes of conduct, which are much more resistant to the deliberated policies, have not yet socially legitimized it.

A counter-cultural product

Given all these factors, the Code of Children and Adolescents appears on the Nicaraguan scene as a counter-cultural product, with public opinion its big adversary. And by defending the code, the Special Attorney’s Office for Children and Adolescents comes into opposition with public opinion as well. Particularly given the country’s institutional fragility, so conditioned by politicians’ strategies, the Office has opted to draw its legitimacy not from actions consensually agreed upon by Nicaraguan society, but as the implementer of international legislation.

For Habermas, the much-sought political rights must guarantee participation in all deliberation and decision-making processes related to producing norms. The legitimacy of these norms thus comes from their gestation in an inter-subjective dialogue process in which the discourse principle, as a post-traditional foundational requirement, is applied to law and becomes a democratic principle. The discourse principle argues that the only valid norms are those consented to by all who might be affected by them as participants in rational discourses.

For Nobel economics laureate Douglass North, the sources of political order involve the state’s capacity to generate credible commitments, achieved by means of a democratic exercise in which all groups build compatibility between their interests and the prevailing norms.

Just as the agroexport economic model made Nicaragua dependent on the international economic structure, so the imported juridical model is prolonging the Nicaraguan state’s crisis of legitimacy, with the same consequences: dependency hinders national control over the causes and consequences of our society’s historical development.

Youth is a concept that varies
from one culture to another

Although the Code of Children and Adolescents defends the family as the nucleus for children’s development, it also proposes punishing fathers and mothers who mistreat, sexually abuse or exploit their children. The state is thus given greater authority than the progenitors, which obviously should make us wonder whether Nicaraguan society doesn’t perceive this as an attack on the culturally established order.

Does this not challenge the patriarchal culture, where the family contains no trace of democracy and the father is its supreme authority, the unquestionable sovereign? The anatomical metaphor for this traditional family has a male “head,” while other family members are only arms that work, feet that run errands and mouths to be fed, but never heads that think. Culturally speaking, the code proposes letting a public institution interfere in this fortress of the private sphere. How could this not generate rejection?

This is not the code’s only counter-cultural element, however. How easily can the Nicaraguan population embrace the idea that someone under 18 years of age must be subjected to a special penal process and lighter sentences when many adolescents of that age already have their own families and many started working at 12 or younger? As French thinker Pierre Bourdieu put it, youth is a word that expresses nothing more than a correlation of forces whose content varies greatly from one culture to another.

For most Nicaraguans, the responsibilities that adolescents assume in the economic and family spheres are incompatible with their presumed exemption from penal responsibilities. It is a perception born out of their experience, the reality they have lived and known all their lives. They thus feel that the Code has introduced laxity—almost impunity—into the legal system. But they have missed one important factor: this legislation has actually extended the age at which a person can be held criminally responsible from 15 in the previous law to 13 in the current one.

The police weigh in:
“The code promotes impunity”

Members of the police force have also weighed in with their own prejudices. They rightfully feel that the code came into force in Nicaragua before the proper conditions had been prepared for its full application and that their institution does not have a budget big enough to respond to what the code establishes. No special prison cells or areas are set aside exclusively for adolescents, for example, and it has not been possible to improve hygienic conditions at detention centers.

According to a document published by the Special Attorney’s Office itself, the police are also dissatisfied with the coordination between the Public Prosecutor’s Office and the National Police. The police force is not given any precise orientation on how it should contribute to an investigation. Generally speaking, when the Prosecutor’s Office is called in on a case, no official turns up at the relevant police department and, as a result, the judicial authorities order the release of the adolescent in question when the case gets to court. This critique is particularly serious given that the National Police, the judicial branch and the Special Attorney’s Office for Children and Adolescents are the institutions charged with implementing juvenile penal justice.

Perhaps most significant of all is the fact that the police admit to feeling impotent about the current Code as they perceive it as a legal obstacle to exercising their functions, particularly when public order has to be reestablished and they can’t detain adolescents who are disturbing the peace.

Police officers complain that the code promotes impunity, “because it takes us longer to apprehend them than it takes the judicial authorities to set them free.” So while the Special Attorney’s Office sees the drop in the number of adolescents in prison from 449 in 1998, before the code, to 70 in 2002 and 36 in 2003 as demonstrating the code’s successful application, the police see it as a failure of justice and the triumph of impunity.

An assessment of public safety carried out in 2002 by the Ministry of Government—the first of its kind in Nicaragua—echoes the police laments. It states that youth gangs use children and adolescents because “while people are increasingly changing their perception of children and adolescents, youth gangs exploit them because they generate less fear among the population and know that they will always receive a more lenient punishment than a young person or adult due to the Code of Children and Adolescents.”

The initial balance

After its first two years, the Special Attorney’s Office for Children and Adolescents launched a study to assess the code’s impact on the application of justice to adolescents.

The study found that the police did not report the reason for detention in 21% of the cases studied; only 10.6% of those detained said the police had informed their family of their detention; 47% were mistreated during their detention (65% of whom said they had been hit or kicked); 27% testified in court without the judicial authority being present; 51% said they didn’t know if they had been assigned a defense attorney; and 25% were kept in cells with adults. Meanwhile, the files of 45% of the detained adolescents had not yet been referred to the relevant authority; the police either failed to report to the Public Prosecutor’s Office or took more than the legally prescribed 24 hours to do so in 42% of the cases; and in 34% it took over 5 days to present the charges to the Juvenile Penal Court. Finally, in 16% of the cases, the Public Prosecutor’s Office presented the charges without the adolescent having made an official declaration; in 14% it failed to investigate; in 27% the investigation took longer than 10 days; and in 11% the declaration was taken without a lawyer present.

First world laws
in a third world country

It is evident that in this issue, this institution and this law—like so many others—Nicaragua is confronting problems resulting from the incorporation of globalized norms without the right national conditions. The population is neither informed nor sensitized; the necessary budget is not allocated; the judges are not on a professional career ladder and are named because of their links with the caudillos of the big political parties; there’s only one juvenile criminal court for the whole of Managua, while other courts cover several different departments; no penal or rehabilitation centers have been built for adolescents…

In fact the Ministry of Government’s public safety assessment recognizes that “many juridical norms that are modern from the doctrinaire and technical perspective cannot be applied given the lack of the right institutional apparatus or sufficient economic resources to apply what is stipulated by the law, and can therefore only partially be fulfilled.“

In this case, the contradiction lies not only between those responsible for formulating the policies and those who receive them, but also between their formulation in first world conditions and the meager resources available for their implementation in third world conditions. Nicaragua lacks the ability to provide health, education and dignified housing, much less provide juvenile courts, speed up legal procedures and create juvenile rehabilitation centers, although this has as much to do with cultural obstacles as with financial resources.

The biggest inconsistency: priorities

Perhaps the most radical inconsistency lies between the code’s formulation and the options and priorities of the top government officials, which also explain the limited resources available. The Nicaraguan government quickly obtained resources to insure that Nicaraguan troops could be sent to Iraq, but it keeps trimming the budget of the Special Attorney’s Office, despite the institution’s importance in defending the rights of over half of Nicaragua’s population.

José Luis Rocha is a researcher at Nitlapán-UCA and a member of envío’s editorial council.

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