JUVENILE JUSTICE AND HUMAN RIGHTS IN THE AMERICAS
1. The Inter-American Commission on Human Rights (IACHR) has had multiple occasions to deal with the issue of juvenile justice and its relationship to human rights when examining and deciding the petitions and cases submitted to it, and the precautionary measures requested of it, when conducting its visits and adopting reports on the situation of human rights in the member States of the Organization of American States (OAS), and at the public hearings convened during its sessions. Based on the information it received, the Commission has decided to prepare a thematic report to examine juvenile justice in the Americas and to make recommendations to the member States with a view to strengthening and improving their institutions, laws, policies, programs and practices in the area of juvenile justice and to ensure that those systems are implemented in accordance with the international corpus juris on the rights of children and adolescents. To make the preparation of this report possible, the IACHR signed a memorandum of understanding with the Regional Office for Latin America and the Caribbean of the United Nations Children’s Fund (UNICEF) and with the United Nations’ Office of the High Commissioner for Human Rights (OHCHR). It also received financial support from the Inter-American Development Bank (IADB), Save the Children - Sweden, and the Government of Luxemburg. The Commission also wishes to acknowledge the cooperation of the Special Representative on Violence Against Children Office.
2. The States of the region are confronted every day with the problems associated with criminal offenses committed by persons under the age of 18. International law has clearly established that a juvenile justice system must be in place for children and adolescents who violate criminal laws. But this special justice system does not apply to all children; instead, it applies only to those who have reached the minimum age at which they can be held accountable for violations of criminal law. Once that minimum age has been reached, the juvenile justice system must be applied to all children and adolescents, without any exceptions. Therefore, it is unacceptable for States to exclude from that system any person who has not yet attained adulthood, which, under international law, is at the age of 18.
3. The report adopted by the IACHR identifies the international principles of human rights that juvenile justice systems must observe. This report underlines the member States’ obligations vis-ŕ-vis the human rights of children and adolescents accused of violating criminal law. The report makes it clear that a juvenile justice system must ensure that children and adolescents enjoy all the same rights that other human beings enjoy; but it must also provide them with the special protections that their age and stage of development necessitate, in keeping with the main objectives of the juvenile justice system, namely, the rehabilitation of children and adolescents, their comprehensive development and their reincorporation into society to enable them to play a constructive role within it.
4. In its report, the Commission observes that juvenile justice systems must respect the principles of law that specifically apply to minors, and the special ways in which the general principles of law are applied to persons who have not yet attained their adulthood. For example, a juvenile justice system must respect the principle of legality, which means that the system cannot impinge upon the life of children and adolescents by invoking a supposed need for protection or prevention of crime; instead, juvenile justice systems must be applied solely on the basis of pre-existing law in which a certain conduct has been classified as a criminal offense. Juvenile justice systems must also guarantee the principle of last resort, which means, for example, that it must consider alternatives to adjudication in the case of violations of criminal law, and non-custodial measures or other forms of deprivation of liberty, which in the case of persons under the age of 18 is to be used only as a last resort. Accordingly, the Commission urges States to move in the direction of eliminating penalties of incarceration in the case of children and adolescents.
5. Furthermore, juvenile justice systems must be specialized, which means that they must feature laws, procedures, authorities and institutions specifically designed for children and adolescents alleged to have violated criminal law. All those working within the juvenile justice system must have received special instruction in children’s rights and be trained to work with children. In its report, the Commission also highlights the point that the due process guarantees, such as the right to a competent judge, the presumption of innocence, the right of defense, the right of appeal and others, must be fully respected in juvenile justice proceedings. The Commission explains the special ways in which these guarantees are observed when persons under the age of 18, who require specific protections, are involved.
6. The Commission commends the legislative strides that many States have taken in recent years. It notes that most States of the region have a special legal framework in place in the area of juvenile justice. In many cases, the framework adopted measures in conformity with international standards on the subject. The Commission also recognizes the efforts made by some countries to bring their juvenile justice practices, institutions and facilities into line with international standards, especially in those States where economic resources are limited.
7. However, the Commission is troubled by the weaknesses within the juvenile justice systems in the region, despite the legislative progress made in many countries since the adoption of the U.N. Convention on the Rights of the Child. Indeed, the Commission observes that there is a significant gap between the language of the States’ laws and the experiences of children and adolescents accused of violating criminal laws. In this report, the Commission examines how, with the exception of a few examples of best practices, the juvenile justice systems of the Americas are characterized by discrimination, violence, lack of specialization, and an abuse of the measures used to deprive juvenile offenders of their freedom.
8. One of the chief causes of concern to the Commission is the fact that in a number of States of the Americas, very young children are held responsible and accountable for violations of criminal law; in some States, children as young as 7 can face criminal prosecution. The Commission is also disturbed by the fact that in the vast majority of States in the region, children and adolescents of 15, 16 and 17, are denied access to the specialized juvenile justice systems and are frequently tried in the ordinary adult criminal justice system, even though they are minors. Under some juvenile justice systems, children and adolescents are often transferred to ordinary courts, where they receive adult sentences and are forced to serve their sentences in adult prisons. Many children and adolescents in the region are thus being denied the protections afforded by the juvenile justice system. In summary, the IACHR is troubled by the practice on the part of some States of denying or offering fewer procedural guarantees, lowering the minimum age of criminal responsibility, and stiffening penal sentences.
9. The Commission is also troubled by the fact that in some cases, children below the minimum age at which they can be held criminally responsible, are deprived of their liberty through so-called “protective” proceedings that end in punitive measures against the minor; all too often these proceedings are not conducted in strict observance of due process guarantees. The information compiled shows that on occasion, children and adolescents who have been abused, are indigent or have been deprived of their social and economic rights, are treated as criminals or routinely held responsible for violations of criminal law because of their condition in life, and are subjected to the juvenile justice system without ever having violated any criminal law. The same thing happens in the case of children and adolescents deemed to be “beyond parental control,” children and adolescents in “irregular situations,” children and adolescents accused of “status offenses,” i.e., acts they committed that would not be criminalized if committed by adults, or children or adolescents who have mental illnesses or diminished mental capacity who are criminalized instead of being given the proper medical care.
10. The first contact of children and adolescents with the juvenile justice system is through the police, and is frequently a traumatic experience. The police often treat children and adolescents in a discriminatory manner and selectively arrest those that are poorest, belong to minorities, or those identified as belonging to certain groups because of their appearance. The IACHR has learned of police practices in which children and adolescents are routinely detained based on their appearance, or simply for being in certain places or because they are assumed to be 'at-risk', or abandoned because they are living on the streets or wandering around; the police sometimes round up such children and adolescents because of an increase in crime in some area, or because they are assumed to be gang members. It often happens that children and adolescents who commit or are accused of committing crimes are removed from any contact with family and community - contacts which are essential for the enjoyment of their rights and their development.
11. Despite the international laws requiring that whenever possible, alternatives to adjudication are to be used in the case of children and adolescents, the IACHR report reveals that alternatives of this type are rarely used in most States of the region. The Commission also observes that in some States, officials of the judicial system, especially those outside the major cities, have little or no training in the area of children and human rights. Thus, the proceedings conducted in the juvenile justice system do not always observe due process guarantees and the principle of the best interests of the child.
12. Similarly, although deprivation of liberty should be used only as a last resort in the case of children and adolescents, and should be for the shortest time possible, the Commission’s report shows that most juvenile justice systems in the Americas resort to deprivation of liberty, both before trial and after conviction. The IACHR also observes that the principles that must govern the sentences administered, such as the principle of proportionality, are often ignored in favor of prolonged sentences on the pretext that such sentences aid in the “rehabilitation” of children and adolescents. In some member States, this criterion leads to the imposition of indefinite sentences in which the children and adolescents will remain deprived of their liberty until such time as the person is deemed “rehabilitated” or reaches a certain age.
13. The IACHR is also troubled by the failure to observe the human rights of children and adolescents when they are deprived of their liberty. In its report, the Commission observes that conditions in the facilities in which children and adolescents are deprived of their liberty are, in general, inadequate and often breed violence among the children or adolescents, or by State authorities. Furthermore, the detention conditions do not always properly guarantee the other rights of children and adolescents, rights that must never be restricted they are in custody, such as the right to life, to physical integrity, to health, to food, and to education and recreation.
14. The report also examines how corporal punishment, solitary confinement, the use of psychotropic drugs to control juveniles, and other cruel, inhuman and degrading treatment continue to be used to discipline children and adolescents deprived of their liberty in the Americas, despite the fact that these punishments are strictly prohibited under international human rights law.
15. The foregoing is compounded by the fact that, in many States, there are no mechanisms for filing complaints or securing independent supervision of the situation of children and adolescents accused of violating criminal laws or deprived of their liberty; in those States that do have such mechanisms, they are underfunded and therefore have very little effect. Thus, the States are not complying with their obligation to adequately prevent, investigate, punish and repair human rights violations of which children and adolescents are frequently victims during all phases of the juvenile criminal justice system.
16. In its report, the Commission calls upon the member States to undertake to comply with their international obligations to protect and guarantee the human rights of children and adolescents in their juvenile justice systems. It also makes a number of specific recommendations concerning the measures that the States must take to adapt their juvenile justice systems to international standards in this area.