JUVENILE JUSTICE AND HUMAN RIGHTS IN THE AMERICAS
1. The Inter-American Commission on Human Rights (hereinafter the “Commission” or the “IACHR”) is a principal organ of the Organization of American States (hereinafter the “OAS”), charged with promoting the observance and protection of human rights in the hemisphere. The human rights of children have, over the course of some years, been a subject of particular concern to the IACHR. For this reason, at its 100th session, held in Washington, D.C., September 24 through October 13, 1998, the Commission decided to create the Rapporteurship on the Rights of Children (hereinafter the “Rapporteurship”). The Commission conferred on the Rapporteurship the mandate to study and promote activities to evaluate the human rights situation of children in the OAS member States (hereinafter the “member States” or “the States”) and to propose effective measures so that the member States would adapt their domestic laws and practices with a view to respecting and guaranteeing for children the enjoyment and exercise of their human rights.
2. Through the system of cases, petitions, precautionary measures, hearings, visits and reports, the Commission and the Rapporteurship have devoted special attention to the problems of children in the Americas. The situation of children and adolescents accused of violating criminal law has been a constant source of concern to the IACHR. Therefore, at its 128th session, the Commission decided to prepare a study to identify the progress that the member States have made in this area and the challenges they still face. This report was prepared within the framework of the memorandum of understanding between the Inter-American Commission on Human Rights (IACHR), the United Nations Fund for Children (UNICEF) and the Office of the High Commissioner for Human Rights (OHCHR). Its preparation and publication has been possible thanks to the financial support of UNICEF, the Government of Luxemburg, Save The Children -Sweden and the Inter-American Development Bank. The Commission also wishes to acknowledge the cooperation of the Special Representative of the Secretary General on Violence against Children.
3. International law has clearly established that a specialized system of juvenile justice must be in place for children, and must respect and ensure, in the case of children, the same rights that all other persons enjoy. But it must also afford them the special measures of protection to which they are entitled by virtue of their age and stage of development. This is the meaning of Article 19 of the American Convention on Human Rights (hereinafter “the American Convention” or “the Convention”), which provides that “every minor child has the right to the measures of protection required by his condition as a minor on the part of his family, society, and the state.” This provision must be understood as an additional and complementary right that the Convention establishes for persons who, because of their physical and emotional development, need special protection. Moreover, Article VII of the American Declaration of the Rights and Duties of Man (hereinafter the “American Declaration”) requires that the States guarantee children and adolescents the special protection, care and aid that they require.
4. In order to gather information on the implementation of the juvenile justice systems in the member States, in August 2008, the Commission sent the member States and civil society organizations a request for information in the form of a questionnaire, which is attached to the present report. The following were the States that answered the questionnaire: Argentina, Brazil, Chile, Colombia, Costa Rica, the Dominican Republic, Ecuador, El Salvador, Guatemala, Guyana, Honduras, Mexico, Panama, Paraguay, Saint Kitts and Nevis, Saint Lucia, Suriname, The United States, Uruguay and Venezuela. The information that these States and several civil society organizations supplied was very helpful to the Commission.
5. In preparing this report, the Commission and staff of the Executive Secretariat visited a number of member States. During those visits, meetings were held with authorities and representatives of civil society who work in areas related to juvenile justice. The visits gave the Commission an opportunity to observe the workings of the courts and institutions where juvenile justice cases are examined, public defender’s offices and the detention facilities in which children accused of violating the law are held. The delegation from the Commission also held meetings with UNICEF field personnel and academics with expertise in issues of juvenile justice.
6. The Commission also conducted five regional consultations to which government representatives, NGOs and academics from the region were invited, and two meetings with experts in juvenile justice to seek their input concerning the human rights standards that apply to children facing the juvenile justice system.
7. The Commission recognizes that the member States have made important efforts to bring their domestic laws into line with the U.N. Convention on the Rights of the Child (hereinafter “the CRC”) and the American Convention on Human Rights. The bulk of that effort has gone into ensuring that domestic laws comply with international standards on juvenile justice. Indeed, some member States have approved special laws and statutes on the subject of juvenile justice. Some member States are considering bills to amend laws currently in force on this subject.
8. The foregoing notwithstanding, the Commission is troubled by the fact that some of these bills would be a retrograde step, leaving the domestic laws even more detached from the international standards on juvenile justice. For example, the Commission has been informed of bills to amend laws that would eliminate procedural guarantees in the case of children in conflict with the law, which would lower the minimum age for application of juvenile justice, lower the minimum age for referral to the regular criminal system as an adult, stiffen penalties, and other regressive changes.
9. Furthermore, the Commission would again make the point that “even though the Convention on the Rights of the Child is one of the international instruments that has the greatest number of ratifications, not all countries of this continent have harmonized their domestic legislation with the principles set forth in that Convention, and those that have done so, face difficulties applying them.” Thus, in a number of member States, laws and mechanisms that are based on the child and adolescent protection concept coexist alongside provisions that recognize children as subjects with their own rights, set forth in the CRC. Furthermore, most Caribbean member States still have work ahead to adapt their laws to comply with their international obligations vis-à-vis the rights of the child, particularly those accused of violating criminal laws.
10. In the Commission’s view, far-reaching legal reforms are still needed to adapt the member States’ domestic laws to international human rights norms on juvenile justice. Even in those member States whose laws on this subject are more advanced, the Commission notes a considerable disparity between the language of the law as approved by the member State and the reality that children accused of violating the law encounter. Hence, full implementation of the existing rules and modification of institutional practices are the main challenges that the member States must face when it comes to children accused or convicted of violating criminal law.
11. The Commission’s report, therefore, includes a number of recommendations to enable member States to fully comply with their international obligations vis-à-vis the rights of the child. The Commission hopes that this report will prove to be a useful tool for the member States and helpful to them in fulfilling their obligation to respect and ensure the human rights of all children facing the juvenile justice system.
 For the purposes of the report, when the Commission uses the term “children” it is referring indiscriminately to all boys, girls and adolescents, understood as every human being below the age of eighteen, as provided in the Convention on the Rights of the Child and in the international corpus juris on the subject. For purposes of juvenile justice, in this report the IACHR makes no distinction between “children” and “adolescents”.
 I/A Court H.R., Juridical Condition and Human Rights of the Child. Advisory Opinion OC-17/02 of August 28, 2002. Series A No. 17, para. 54; Case of the Gómez-Paquiyauri Brothers v. Peru. Merits, Reparations and Costs. Judgment of July 8, 2004. Series C No. 110, para. 164 and I/A Court H.R.. Case of the Juvenile Re-education Institute v. Paraguay, Preliminary Objections, Merits, Reparations, Costs. Judgment of September 2, 2004, Series C No. 112, para. 147.
 Whenever possible, the information supplied by the States has been updated to December 2009 and, in some cases, to the date of approval of this report.
 The questionnaire was prepared by the IACHR’s Rapporteurship on the Rights of the Child in cooperation with UNICEF’s Regional Office for Latin America and the Caribbean (TACRO).
 For this report, staff of the Executive Secretariat visited the following specific countries: Suriname, Guyana, Trinidad and Tobago, Belize, Barbados, Saint Lucia and Jamaica. The present report is also based on information compiled during visits that the Commission made to El Salvador, Guatemala and Honduras (2004), Haiti (2005 and 2008) and Jamaica (2008).
 The detention centers visited were the following: Opa Doeli Remand Center in Suriname; New Opportunities Corps in Guyana; the Youth Training Center in Trinidad and Tobago; the Wagner Boys Facility, located in the Kolbe (adult) Prison in Belize; the Boys Training Center in Saint Lucia; Delmas 33 in Haiti, and Stoney Hill Remand Center in Jamaica.
 The consultations were conducted in Paraguay (November 20 and 21, 2008), Costa Rica (March 2 and 3, 2009), Bogota (March 5 and 6, 2009), Barbados (May 27, 2009), and Washington, D.C. (August 31, 2009).
 The meetings of experts were held in Uruguay (September 29, 2009) and Washington, D.C. (October 23, 2009). The first meeting included judges, academics and experts from Uruguay, Argentina, Ecuador, Chile and Brazil, among them the following: Miguel Cillero, Edgidio Crotti, Susana Falca, Andrés Franco, Emilio García Méndez, Eloisa Machado, Stella Maris Martínez, Ricardo Pérez Manrique, Farith Simon and Carlos Uriarte. The second meeting included representatives from the United States, Canada, Trinidad and Tobago, Guyana, Mexico and Panama. The second meeting featured academics and experts from Mexico, Panama, the Bahamas, Trinidad and Tobago, Guyana, Puerto Rico, Canada, and the United States, among them the following: Elena Azaola, Jorge Giannareas, Hazel Thompson-Ahye, Wendy Singh, Nicholas Bala, David Fathi, Alberto Concha-Eastman, Alexandra Guedes, and Nadine Perrault. Representatives from UNICEF and from the IACHR and its Executive Secretariat participated in both consultations.
 IACHR, Written and oral interventions related to Advisory Opinion OC-17/02. In I/A Court H.R., Juridical Condition and Human Rights of the Child. Advisory Opinion OC-17/02 of August 28, 2002. Series A No. 17, p. 22.