Opinion article / Adrian L. Piejko Patiño – Responsible for Bolivia in Tutator Foundation
Lawyer at UMSS and Master in Human Rights and Democracy by FLACSO-Mexico.
In recent months, Bolivia has been undergoing a broad process of reflection in relation to the Pre-Summits and the next Justice Summit, in which different sectors and organizations are debating and making proposals to improve the justice service in the country. In this way, these spaces for dialogue are a clear hope for changing the vices that our justice system contains, in which the groups in the greatest situation of violation of rights are the main victims of an inefficient and “unjust” system.
And in this context many proposals are born, a great number of proposals! These are presented in a diverse range, but in general we can identify that there are two fundamental aspects: Reform or Implementation. That is to say, on one hand, the reconstruction of the whole system is postulated, and on the other hand, the demand for the implementation of the regulations built before discarding them.
In view of these two positions, which one should we choose? It is undeniable that in our justice system there are serious problems at the root, which demand measures that go as far as an epistemological criticism of the law and its practice. And consequently, actions must be promoted that allow the reconstruction, from new pillars, of the justice system.
But it is also true that there are advanced normative provisions, which conclude in good practices and should rather be socialized throughout the Bolivian territory. An example of this is the System of Criminal Responsibility for Adolescents.
A few weeks ago, in the face of a specific event in which a group of young people and adolescents participated in a criminal act, proposals were presented that sought to reform the Code for Children and Adolescents as it pertains to the Adolescent Criminal System. This reform is aimed at toughening sanctions and introducing a punitive and repressive model, as opposed to the socio-educational and restorative approach provided for in our regulations.
It is worth mentioning that currently our regulations on Criminal Justice for Adolescents are one of the most advanced in terms of human rights and even a reference in the region when introducing restorative practices. In this regard, the Child and Adolescent Code establishes a criminal system for adolescents based on the principle of the best interests of the child, which recognizes the adolescent as a person capable of exercising rights and also of assuming responsibilities. For this reason, a system is designed in which the adolescent with criminal responsibility, is part of a process in which what is sought is responsibility for their actions – as opposed to the classic punishment -, pursuing rather that this adolescent does not relapse and build a positive life project for himself and society.
In addition to this approach, the Code introduces restorative justice practices as alternative mechanisms to the judicial system for resolving conflicts. These procedures, in addition to providing greater access to justice, are much more agile, economical and participatory practices. In which the adolescent with criminal responsibility, the victim and even the community (as the case may be) participate actively in resolving the conflict and restoring both the damage committed and the relationship or harmony broken by the act.
We could continue to make many advances in our legislation on the subject, but a whole issue of this magazine would be required to go into each of these topics in greater depth. However, it can be concluded that we have one of the best systems of criminal justice for adolescents in the region.
However, in this case the problem does not lie in reforming the precepts contained in the adolescent criminal system, but rather in implementation. Almost two years after the Child and Adolescent Code came into force, not all of its provisions have been implemented. In fact, no department has a programme of restorative practices and very few have social and educational programmes to monitor non-custodial measures.
It must be recognized that despite all the difficulties presented by the State to implement the postulates of this norm, there are good practices that – with quite limited economic resources and facing stigmas towards adolescence that some authorities present – manage to show in the day-to-day work that a socio-educational and restorative model is possible and provides better results. Thus, we can see the Program of Non-custodial Measures of Santa Cruz, the Reintegration Center of Trinidad-Beni, the work in Manuals and Protocols developed in Tarija and Cochabamba or the recently opened Orientation Center of La Paz. All these are some of the good practices which, if they could be reflected in long-term public policies and with recurrent funds, would certainly make it possible to see the results expected when the Children and Adolescents Code was formulated.
For all of the above reasons, the proposals for reforming the Code formulated in the heat of the moment may have good intentions and seek to respond to a demand for security in the country, but in order to be considered, what is provided for in our current regulations should first be seriously implemented and if, after an evaluation, it is identified that the socio-educational and restorative model does not work , other alternatives could be considered.
Finally, returning to the issue of the proposals made at the Pre-Summits and the Justice Summit, a dialectical analysis should be promoted, in which the aspects of justice that require a profound reconstruction- or deconstruction- in terms of justice are identified and, on the other hand, both normative advances and good practices that give rise to a justice that responds to our reality are recovered. In this context, the precepts of the System of Criminal Responsibility for Adolescents, such as restorative practices, can become models that contribute to rethinking justice in the country, from a comprehensive view of access to justice closer to the population, especially for groups in greater situations of rights violations.
 With the caveat that, like any norm, it can be improved and to evaluate it more seriously, it must first be fully implemented.
 It is very unlikely that other successful experiences such as those of the Restorative Circles in Lima, the socio-educational model in Costa Rica or the restorative mechanisms in Finland, and many others, will show that these models of justice are more positive in terms of “social justice”. And if we want to look closer, we have the extensive experience of the indigenous native peasant peoples of our country. Those who, from a process of cultural reaffirmation, have recovered their knowledge within the framework of a Living Well paradigm and apply systems of justice that focus on the restoration of damage rather than punishment.
Written by sociedadcivilenaccion.com, posted on May 23, 2016