III.    PRECAUTIONARY MEASURES FOR CHILDREN AND ADOLESCENTS ACCUSED OF VIOLATING CRIMINAL LAW

247.     This chapter will deal with the issues that arise in the period between a child’s first contact with the juvenile justice system, and the point at which he or she is charged with violating criminal law.  Naturally, a child’s first contact with the state’s punitive system is generally by way of the police.  The Commission will discuss some of the limits that the police must observe when dealing with a minor accused of violating a criminal law.

248.     The Commission will also discuss the measures that tend to be used to ensure the accused child’s presence for the duration of the process, also known as precautionary measures, or detention pending trial.  These measures may or may not deprive the accused child of his or her liberty.  In either case, the measures must respect, inter alia, the principle of the presumption of innocence, the guarantees of due process, and the best interests of the child.  Furthermore, as will be discussed in this chapter, the use of deprivation of liberty as a precautionary measure at the start of the juvenile justice process must be a last resort, which means that States have an obligation to have alternatives to preventive detention available.

249.     The following are among the problems that the Commission will address in this chapter: the arbitrary detention of children; the violence perpetrated against them while in police custody; the excessive reliance on preventive detention in the case of children; the disproportionate duration of preventive detention in the case of children, the lack of judicial oversight, and the failure to separate children in preventive detention from those who have been convicted in the juvenile justice system.  The IACHR will examine the standards that apply to these and other situations, and will offer its recommendations on how the member States can comply with their human rights obligations in this area.

A.       Limits that the Police Must Observe When Dealing With Children and Adolescents Accused of Violating Criminal Law

250.     A child’s first contact with the juvenile justice system is generally by way of the police authorities.  Therefore, it is important to list some of the principles and standards that establish limits and obligations with respect to how the police must treat accused and/or convicted child offenders.

251.     The information the Commission has received reveals a number of problems that present themselves when the police have contact with an alleged child offender.  First, as previously noted, the lack of specialization among police personnel often means that the child’s rights are not properly respected.  Second, as the Commission observed, police activity can reveal a pattern of discrimination which often results in arbitrary arrests of children, with no regard for the principle of legality and the principle of non-discrimination.  Third, in juvenile justice systems, detention is often the rule rather than the exception, in violation of the principle of last resort; in some cases, detentions are carried out without any immediate judicial oversight.  Fourth, parents or guardians frequently are not notified promptly of a child’s detention; children are even held in solitary confinement in police stations.  Fifth, the facilities in which children are incarcerated are frequently not appropriate to their needs.  All this is compounded by police violence and abuse to which children are often subjected, and the impunity which surrounds such acts by the police. 

252.     When a child is taken into custody, the police have an obligation to guarantee the child’s right to be brought immediately before a competent judge, to notify the parents or guardians as soon as possible, to allow the child to have contact with his or her family, and to confer with his or her defense attorney as soon as possible.

253.     Where children are involved, international law reinforces the standard of being brought promptly before a judge, as it stipulates that the child shall be brought before the specialized jurisdiction as quickly as possible. Immediate judicial oversight is essential to avoid arbitrary or unlawful detentions.[195]  As the Court stated:

Prompt judicial intervention allows the detection and prevention of threats against life or serious ill treatment ... The protection of both the physical liberty of the individual and his personal safety are in play, in a context where the absence of guarantees may result in the subversion of the rule of law and deprive those arrested of the minimum legal protection[196].

254.     In accordance with the international obligations on the subject, the competent judges are to be immediately notified of the apprehension of a child and shall hear the matter and rule on the question of the child’s release without delay.  The Committee on the Rights of the Child has stated that:

Every child arrested and deprived of his/her liberty should be brought before a competent authority to examine the legality of (the continuation of) this deprivation of liberty within 24 hours [197].

255.     In the Commission’s view, and in observance of the obligation of special protection contained in Article 19 of the American Convention and Article VII of the American Declaration, States should establish an even shorter period of time for judicial oversight in a case in which a child has been taken into custody.  When one considers that children are still in the process of development, detention has a more harmful effect on them than on adults, and children are particularly vulnerable.

256.     Nevertheless, the Commission observes that within region, children are routinely held for prolonged periods in court holding areas.  For example, Jamaica’s Office of the Children’s Advocate told the IACHR that “reports coming to the Office indicate that children who are perpetrators of crime and violence sometimes spend prolonged periods in detention awaiting an identification parade as legislation with respect to the time children spend in detention is non-specific.”[198]  The Peruvian Ombudsman’s Office told the Commission that under Peruvian law, preventive detention for police investigations in cases involving illegal drug trafficking can last as long as 15 days, in accordance with a clause in the Constitution.  This is a constitutional exception to the 24-hour limit on police detention where certain other crimes are involved, among them juvenile offenses.^[199]

257.     The Commission takes a favorable view of Uruguay’s implementation of a law setting the maximum period that a child can be held in a police facility at 12 hours, and that gives the police a maximum of two hours to inform the court of the detention. However, the Commission has received information to the effect that meeting these deadlines can pose a number of problems.  The Commission has also received information to the effect that on numerous occasions, given the failure of detention centers, police premises were used to sanction children who had been convicted of violating the law.^[200]

258.     Likewise, Article 127 of Nicaragua’s Child and Adolescent Statute provides that adolescents whom the police take into custody should be referred to the competent authority within 24 hours. However, the 2007 Annual Report of the Technical Office for Monitoring the Juvenile Criminal Justice System states that: “The preventive detention facilities are in such disrepair that the authorities of the juvenile criminal justice system have agreed that 48 hours should be the maximum time period within which a child must be brought before the judicial authority.”[201]

259.     The Commission would like to point out that detained persons, no matter what their age, have a right to communicate with, and request the assistance of, third parties.  But when the person taken into custody is a child, the law recognizes his or her particular vulnerability, and that contact with family members is especially vital to mitigate the harmful effects of the deprivation of liberty and in ensuring that the child is able to receive the assistance that he or she requires.[202]  The Court has been clear on this point:

The right to contact a relative becomes especially important when detainees are minors. ... the authority carrying out the detention and in charge of the detention place for the minor must immediately notify the next of kin or, otherwise, their representatives for the minor to receive timely assistance from the person notified[203].

260.     While most States in the hemisphere have laws stipulating that these notifications must be made upon the child’s detention, in its Concluding Observations, the Committee on the Rights of the Child observed that this law is not, as a rule, respected.  Thus, in the case of Brazil,[204] Chile,[205] Colombia,[206] Ecuador,[207] Nicaragua,[208] Panama,[209] Peru,[210] Uruguay,[211] and other States, the Committee recommended that particular care be taken to ensure that the children remain in contact with their families while in the juvenile justice system.

261.     The available information indicates that notification of family members is critical to protecting the rights of a child being held in police facilities, and to ensuring observance of the guarantees of due process.  However, the presence of parents or guardians in the proceedings can also affect the decision taken in the judicial system.  For example, the Commission was told that in Uruguay, when parents or guardians are present at the preliminary hearing, preventive detention was ordered in half as many cases.  On the other hand, when the children did not have a parent or guardian present for the proceedings, preventive detention was ordered in 87% of the cases.[212]  The sub-regional consultations and consultations with experts conducted in preparing this report found that the situation is similar in the majority of countries of the region.

262.     In addition to notification of parents or guardians, children in custody should have some way to communicate with the outside world,^[213] as part of their right to communicate with third parties, to receive assistance, and of their right not to be held incommunicado. Isolation from the outside world causes moral suffering and emotional trauma in anyone, makes them particularly vulnerable and increases the risk that they will be mistreated and abused in jail.  The IACHR has therefore held that no matter what the circumstances, the law must prohibit incommunicado detention of persons deprived of liberty.[214]  These principles apply with equal force to detained children.  Therefore, the Commission rejects any state practice that involves solitary confinement of children held in police premises.

263.     The Commission considers that arrest proceedings, questioning and subsequent detention by police constitute a risk scenario to the rights of children.  The Court has made reference to the minimum standards that police detention facilities must observe when the person being held in custody is a child:

... As this Court has recognized in previous cases, there must be a record of detainees to enable control of legality of detentions. This requires entry, among other data, of: identification of the detainees, cause for detention, notification to the competent authority, and to those representing them, exercising custody or acting as defense counsel, if applicable, and the visits they have paid to the detainee, the date and time of entry and release, information given to the minor and to other persons regarding the rights and guarantees of the detainee, record of signs of beating or mental illness, transfers of the detainee, and meal schedule. The detainee must also sign and, if he or she does not, there must be an explanation of the reason. The defense counsel must have access to this file and, in general, to actions pertaining to the charges and the detention[215].

264.     The information available indicates that throughout the hemisphere, the conditions under which children are held in police facilities are unsuitable.  One of the most frequent violations is that children are not separated from adults in facilities of this type.  Even more disturbing are the reports indicating that police abuse and violence are a widespread problem in the hemisphere. In many cases, the violence involves the police’s use of physical force, mistreatment and sexual abuse of the detained children.  The Commission observes that in many cases, police violence is discriminatory and selective in nature.  The situation is especially serious in the hemisphere due to the fact that complaints involving torture and extrajudicial execution of detained children in a number of States have been denounced and proven.[216]

265.     Despite the countless complaints of police violence against detained children, there are very few cases in which the police officers responsible for the violent acts have been identified and criminally prosecuted and punished.  According to information received by the Commission, in most States, the chief mechanism for monitoring police conduct is an internal unit that investigates the activities of its fellow police officers.  In other cases, there are centralized or specialized mechanisms that answer to the police authorities themselves.  In the Commission’s opinion, mechanisms of this type, although necessary, are not independent monitoring and investigative bodies, especially inasmuch as they are run by persons subordinate to the command structure, and who can be appointed or removed by that structure, which affects their independence and impartiality.[217]

266.     A serious, effective, independent and impartial investigation is needed of all acts of police abuse and violence.  Accordingly, there must be mechanisms that allow children to file complaints in a safe environment, and even anonymously.  The Commission would remind the States of their obligation to prevent police abuse and violence through regular medical check-ups and examinations of detained children held in police custody, undertaken by independent medical personnel qualified to be able to identify possible cases of mistreatment or torture.

B.     Non-Custodial Precautionary Measures

267.     The principle that holds that children should be deprived of their liberty only as a last resort is especially important during the preliminary stages leading up to the juvenile justice process, since they are to be presumed innocent until proven otherwise.

268.     Article 7(5) of the American Convention provides that the release of a person in custody may be subject to guarantees to ensure his appearance at trial.  With any case, but especially where children are involved, preventive detention should be used only as a last resort. 

269.     Under Article 13(2) of the Beijing Rules, detention pending trial shall be used only as a last resort and then for as short a period as possible:

Whenever possible, detention pending trial shall be replaced by alternative measures, such as close supervision, intensive care or placement with a family or in an educational setting or home.

270.     The Commission is encouraged by the fact that almost all the relevant laws of the countries of the hemisphere have made provision for precautionary measures in lieu of the deprivation of liberty in the phase leading up to juvenile court proceedings. The wide variety of measures that States have established to ensure the presence of accused children for the duration of the proceedings suggest that they have ample opportunity to avoid ordering preventive detention of children accused of violating the law. 

271.     For example, Canada has established bail programs under which the child remains at home with his or her family, but meets regularly with a professional from the community who monitors his or her conduct and helps the child rejoin community support systems.  In the Dominican Republic, the judge who examines cases of violations of criminal law committed by children may, upon a duly grounded request from the Public Prosecutor’s Office, order one of the following non-custodial precautionary measures:  a) a change of residence; b) periodic appearance in court or before the court-appointed authority; c) a prohibition banning the child from leaving the country, community or territory; d) a ban on visits or contact with certain persons; and e) placement in the custody of a particular person or institution. In Bolivia, there are two non-custodial precautionary measures: guidance and supervision orders, and a summons under penalty of law.

272.     The precautionary measures regulated under Honduran law include guidance and community-family support; rules of conduct; and assisted release libertad asistida.  In Venezuela, the law provides that whenever the circumstances are such that preventive detention can be reasonably avoided in favor of other measures that are less onerous for the accused, the competent court shall, on its own or at the request of the interested party, order other measures in lieu of preventive detention, among them the following: the obligation to submit oneself to the care or supervision of a certain person or institution, which shall file regular reports with the court; the obligation to appear in court on a regular basis, or to present oneself to the authority that the court designates; a ban on leaving the country, the community in which he or she lives, or the area specified by the court without authorization; a ban on attending certain meetings or frequenting certain places; and a ban on communicating with certain persons, provided one’s right of defense is not thereby affected.

273.     However, the Commission observes that this catalogue of non-custodial, precautionary measures as established in the legislation are not always effectively applied in practice; and that frequently the very first measure that the authorities resort to in the case of children accused of violating the law is preventive detention.  The IACHR urges the States to ensure strict observance of the principle of last resort, whereby preventive detention from the start of the juvenile justice process is used only in exceptional cases.  It would also urge the States to step up their efforts to put into practice non-custodial precautionary measures that observe the principle of innocent until proven guilty.

C.     Custodial Precautionary Measures

274.     As stated in the preceding paragraphs, deprivation of liberty is widely used as a measure to ensure that a child accused of violating criminal law is present for the duration of the juvenile justice process. Preventive detention is the precautionary measure most often used, but all forms of detention, institutionalization or custody whereby children accused of violating criminal laws are confined in public or private institutions for the duration of the process against them, are considered measures for their deprivation of liberty.

275.     Irrespective of how the various States label custodial precautionary measures imposed on children accused of violating criminal laws, in order to be considered legitimate, such measures must observe certain basic principles that apply to all non-convicted persons deprived of their liberty.  In addition to these general basic principles, the preventive detention of children under the age of 18 must meet special requirements to safeguard their right to special protection by reason of their age, as provided in Article 19 of the American Convention and Article VII of the American Declaration.

276.     Therefore, in order to be legitimate, any custodial precautionary measure applied to a child accused of violating criminal law must be in accordance with the principle of last resort; in other words, it must be applied only if the child poses an immediate and real threat to others;[218] as a last resort, when no other alternative is available; for as brief a time as possible, and subject to periodic review; finally, children in preventive detention must enjoy all the rights and protections that their age, gender and individual characteristics dictate and, most especially, their right to be separated from adults and from children who have already been convicted.

277.     The Commission is recommending to the States that they make certain that their juvenile justice systems observe the principle of last resort where the deprivation of liberty is concerned, and that parameters be established both with respect to the decision to order preventive detention in the case of a child, and with respect to the duration of that detention. Accordingly, the IACHR is recommending to the States that they arrange precautionary measures that are alternatives to the deprivation of liberty but that still ensure the child’s appearance for trial and that, as warranted, they honor their obligation to replace these measures with less onerous ones.  The Commission observes that, in practice, preventive detention must conform to the minimum standards for all persons deprived of their liberty on preventive or precautionary grounds and must also take care to guarantee a child’s right to measures of special protection.

278.     In order to provide guidance to the States on how best to comply with this recommendation, the Commission will now examine each of the requirements that preventive detention must meet when the person being confined is a child accused of violating criminal law. 

1.      Preventive Detention as a Last Resort

279.     Multiple international standards –among them Article 37(b) of the CRC, Rule 13 of the Beijing Rules, Rule 6(1) of the Tokyo Rules and Rule 17 of the Havana Rules- provide that in the case of children, preventive detention must be a measure of last resort.  Rule 13 of the Beijing Rules provides that, in the case of children:

13.1 Detention pending trial shall be used only as a measure of last resort ....

13.2 Whenever possible, detention pending trial shall be replaced by alternative measures, such as close supervision, intensive care or placement with a family or in an educational setting or home.

280.     The Inter-American Court has also clearly held that the use of preventive detention must be reserved for the most exceptional cases, given the limits imposed by the presumption of innocence and the principles of appropriateness, necessity and proportionality.[219]

281.     The IACHR has observed that:

with respect to preventive detention, the Commission notes that international jurisprudence is consistent in holding it as an exceptional measure that must respond exclusively to procedural purposes, and this interpretation takes on special importance for children who, by their condition, are at greater risk[220].

282.     The Court was emphatic in stating that:

When preventive detention is ordered for children, the rule must be applied with even greater rigor, since the norm should be measures that are alternatives to preventive imprisonment. Those measures might include the following: strict supervision; permanent custody; foster care; removal to a home or educational institution; care, guidance and supervision orders; counseling; probation; education and vocational training programmes and other alternatives to institutional care ...[221].

283.     To be warranted, custodial precautionary measures should aim to ensure certain legitimate procedural ends.  Under Article 7(5) of the American Convention, the only legitimate ground for preventive detention is the danger that the accused might attempt to elude justice or obstruct the judicial investigation. Furthermore, flight risk or the risk of obstructing the investigation must be based on objective circumstances.  Thus, merely alleging this risk will not suffice to meet this requirement.

284.     When considering a preventive detention measure, the principle of proportionality must be considered; thus, the precautionary measure cannot be used when the offense with which the accused is charged does not carry a penalty of imprisonment.  However, the Court has been categorical in asserting that under no circumstances shall a precautionary or preventive measure be determined on the basis of the offense with which the individual is charged.[222]  Excluding certain violations of criminal law from the scope of preventive detention would distort the precautionary nature of this measure and transform it into punishment imposed in advance.

285.     The Commission notes that the applicable international standards provide that children ordered into preventive detention must have the opportunity to question the grounds for preventive detention with the assistance of their defense counsel.[223]  The time taken to decide the appeal must be less than the maximum period of the preventive detention.  The guarantees of due process must be assured, the child’s right of defense must be respect, and he or she must be permitted to participate in the hearing proceedings.

286.     Even though these norms and standards are very clear, the information the Commission has received indicates that the use of preventive detention of children accused of violating criminal law is widespread within the hemisphere.  For example, the IACHR was told that in Peru in 2005, 33% of the adolescents deprived of their liberty in juvenile facilities were awaiting sentence; three years later, in 2008, 70% of the children deprived of their liberty in juvenile facilities had not yet been sentenced.[224]  According to another source of information, in 2008, a total of 2,628 children were deprived of their liberty; of these, 1,238 –slightly fewer than half- were still awaiting sentencing.[225]

287.     The Commission was also told that in Chile in 2006, preventive detention represented 15.6% of precautionary measures imposed on adolescents.[226]  The Commission was also informed that in Uruguay, preventive detention (called provisional holding) has increased.  According to the information received, in Montevideo, during the 2004-2005 period, preventive detention was ordered in 59% of the cases, whereas in 2006, it was ordered in 66% of the cases.[227] The Commission also received information to the effect that in 2007, 371 children had allegedly been ordered into preventive detention in Guatemala, and only 29 had been ordered to be incarcerated after sentencing.  Thus, out of a total of 400 detentions, 92.75% were preventive detentions.[228]

288.     The Commission therefore recommends to the States that they enact laws establishing clear limits on the use of preventive detention as described in the preceding paragraph, so that the issue is not left to the discretion of the judges or administrative authorities in charge of cases of violations of criminal laws alleged to have been committed by children under 18 years of age.

2.      The Duration of Preventive Detention

289.     Article 7(5) of the American Convention provides that any person detained shall be entitled o trial within a reasonable time or to be released, without prejudice to the continuation of the proceedings. The Court has warned that protracted preventive detention runs the risk of turning the presumption of innocence on its head, converting a precautionary measure into punishment imposed in advance.[229]

290.     The organs of the Inter-American system have vigorously condemned disproportionate preventive detention.  The Court has addressed the use of preventive detention in the case of minors, and ruled that:

... preventive detention must strictly conform to the provisions of Article 7(5) of the American Convention: it cannot be for longer than a reasonable time and cannot endure for longer than the grounds invoked to justify it. Failure to comply with these requirements is tantamount to a sentence without a conviction, which is contrary to universally recognized general principles of law[230].

291.     The Court went on to say that:

… when, however, preventive detention is deemed necessary in the case of a child, it must be for the shortest period possible, as provided in Article 37.b) of the Convention on the Rights of the Child ...[231].

292.     Rule 13(1) of the Beijing Rules also provides that detention pending trial shall be used only as a measure of last resort and for the shortest possible time in the case of minors.

293.     The Commission is concerned that in a number of countries of the Americas, detention pending trial or preventive detention as a precautionary measure is used too often and for too long.  The Commission said as much, for example, in its report on the situation of human rights in Bolivia in 2007.[232]

294.     Little was learned from the information provided by the States in response to the Commission’s question about how long children remain under custodial precautionary measures before being sentenced.  For example, in answer to the questionnaire the Commission sent out in the process of preparing this report, El Salvador stated that children remain detained for between one and three months; Uruguay said that preventive detention lasted between 30 and 60 days; Guatemala said that preventive detention lasted anywhere from 24 hours to 12 months; Costa Rica gave assurances that preventive detention never lasted more than 6 months; the Dominican Republic explained that 23 adolescents were held in preventive detention for less than a month, and 238 were held for one to three months, 177 for three to six months, 21 for six to twelve months, and 3 were in preventive detention for twelve to twenty-four months.  In the Caribbean countries, the average duration of preventive detention was 28 days in Guyana and one to three months in Saint Lucia.

295.     The Commission received alarming information on the duration of preventive detention during the visits it made to prepare this report.  In Trinidad and Tobago, for example, the IACHR found that 18 children were being held in the Youth Training Center on charges of murder.  The Commission was able to speak to half these children, not one of whom had been there for less than one year; indeed, one had been at the facility for four and a half years.  In Belize, the Commission found that the children being held on murder charges had been in preventive detention for over a year.  In Saint Lucia, employees of the Boy’s Training Center stated that sometime in the past, three children had spent four years at the Center awaiting trial on charges of homicide.  In Haiti, the employees at Delmas 33 said the average period of preventive detention was 22 months.[233]

296.     At the same time, the Commission appreciates the fact that a number of States have set upper limits on the duration of preventive detention.  In Brazil, for example, the maximum period of preventive detention is set at 45 days[234].

297.     The Commission observes that setting a legal limit on preventive detention is a positive step, provided the permitted period of is reasonably short.  At the end of that time period, extensions should not be allowed and the child should be released immediately.[235]  The Commission would also suggest that the law should establish penalties and consequences for those officers of the court that do not comply with these deadlines.

298.     The Commission observes that the deprivation of liberty as a preventive measure in these cases ought to be as brief as possible.

3.      The Periodic Review of Preventive Detention

299.     Article 7(5) the American Convention clearly provides that States have an obligation to observe the right of any detained person to be brought promptly before a judge or other officer authorized by law to exercise judicial power. If preventive detention is ordered, States also have an obligation to ensure that the measure is temporary and to establish a periodic review mechanism to decide whether preventive detention should be terminated or replaced with another measure, if there has been a change in circumstances justifying the reasons why preventive detention was ordered in the first place.

300.     The Committee on the Rights of the Child has also recommended that the States Parties adopt strict legal provisions to ensure that the legality of a preventive detention is reviewed on a regular basis, preferably every two weeks. It observes that when the conditional release of a child –by alternative measures, for example- is not possible, the child should be formally charged with the alleged offences and brought before a court or other competent, independent and impartial authority within no more than 30 days after his or her preventive detention begins.[236]

301.     The Commission reiterates the point that when children accused of violating the law are deprived of their liberty, the judge must periodically review the grounds to determine whether the reasons for ordering preventive detention still persist.[237]  In its decision, the authority should clearly set out the circumstances of the case that allow one to reasonably presume that the flight risk is still present, or set out the evidentiary tests that still have to be conducted, and why they cannot be done if the accused child is released.

4.      The Rights of Children and Adolescents in Preventive Detention

302.     Any minor subjected to preventive detention shall enjoy the same rights that apply to persons deprived of their liberty, as well as all the specific guarantees and protections to which he or she is entitled by reason of his or her age.  Article 13 of the Beijing Rules provides that:

13.3 Juveniles under detention pending trial shall be entitled to all rights and guarantees of the Standard Minimum Rules for the Treatment of Prisoners adopted by the United Nations.

13.4 Juveniles under detention pending trial shall be kept separate from adults and shall be detained in a separate institution or in a separate part of an institution also holding adults.

13.5 While in custody, juveniles shall receive care, protection and all necessary individual assistance-social, educational, vocational, psychological, medical and physical-that they may require in view of their age, sex and personality.

13.3 Juveniles under detention pending trial shall be entitled to all rights and guarantees of the Standard Minimum Rules for the Treatment of Prisoners adopted by the United Nations.

13.4 Juveniles under detention pending trial shall be kept separate from adults and shall be detained in a separate institution or in a separate part of an institution also holding adults.

13.5 While in custody, juveniles shall receive care, protection and all necessary individual assistance-social, educational, vocational, psychological, medical and physical-that they may require in view of their age, sex and personality.

303.            Even so, the IACHR has received information indicating that many States of the region do not have separate institutions to house children in preventive detention, with the result that they are routinely placed in institutions that house children who have already been convicted or, even worse, in adult facilities.  From the information it has received, the Commission has learned that in some States, the detention conditions to which children who have not yet been convicted and sentenced are subjected may be even worse than conditions at facilities housing those already found guilty of violating the law, which is a violation of the principle of the presumption of innocence.

304.            By way of example, the Commission received disturbing information to the effect that children in preventive detention in Honduras are not separated from those who have been convicted by the juvenile justice system.[238]  In Venezuela, the Ombudsman’s Office has revealed that in most juvenile facilities, the separation rule is not rigorously applied and that in many facilities, the convicted and sentenced children are intermingled with convicted adults.  The Ombudsman’s Office found that the law requiring segregation of convicted children from those not convicted was observed only in the States of Barinas, Mérida and Anzoátegui.[239]

305.            A number of international instruments on the subject uphold the right of children in preventive detention to maintain contact with their families, to be separated from the adult population and from children who have already been convicted.  These include Article 5 of the American Convention, and Articles 10 and 37 of the Convention on the Rights of the Child.  The Court has specifically addressed this right, and observed that the lack of separation contributes to the climate of insecurity, tension and violence in facilities where juveniles are held.[240]

306.            The Commission reiterates that facilities housing children preventive detention must ensure that their human rights are respected and conduct programs that respect the principle of the presumption of innocence.[241]  They must also guarantee all the rights to which children deprived of their liberty are entitled, such as contact with family, access to the right to education, recreation, health, religious practices and others.