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JUVENILE JUSTICE AND HUMAN RIGHTS IN THE AMERICAS
IV. CUSTODIAL AND NON-CUSTODIAL MEASURES IN THE CASE OF CHILDREN AND ADOLESCENTS HELD RESPONSIBLE FOR VIOLATING CRIMINAL LAWS
307. A state’s response when its juvenile justice system holds a child responsible for a violation of the law must be respectful of the child’s specific rights and the specific protections to which the child is entitled by virtue of his or her age.
308. The international standards on the subject provide that States should order confinement only as a last resort and have alternatives to confinement available. The juvenile justice system must also give special consideration to the proportionality and duration of a sentence, whether or not it involves confinement. Furthermore, sentences that constitute cruel and inhuman treatment, particularly those involving corporal punishment, are inadmissible under international human rights law.
309. In this chapter of the report, the Commission will examine the measures that States can, without violating international law, apply to children who have been found responsible for violating criminal laws. The Commission will begin with those measures that States can order in lieu of custodial measures, and then examine the deprivation of liberty of children who violate the law.
A. Alternatives to the Deprivation of Liberty
310. The right to personal liberty involves certain important qualifiers in the case of children under the age of 18. As the Inter-American Court has held, the content of the right to personal liberty in the case of children cannot be separated from the best interests of the child, which is why special measures must be taken to protect them, given their vulnerability.[242] The measures that replace, or are alternatives to, the deprivation of liberty are a means to safeguard the rights of children who have violated criminal law.
311. Thus, in order to be in compliance with the principle of last resort, which imposes a restriction of liberty on children as an exception, States have an obligation to establish alternatives to custodial measures as penalties for children found guilty of violating criminal laws. That obligation is clearly set out in Article 40(4) of the Convention on the Rights of the Child, which provides that:
A variety of dispositions, such as care, guidance and supervision orders; counseling; probation; foster care; education and vocational training programs and other alternatives to institutional care shall be available to ensure that children are dealt with in a manner appropriate to their well-being and proportionate both to their circumstances and the offence.
312. The Committee on the Rights of the Child has observed that:
An effective package of alternatives must be available (see chapter IV, section B, above), for the States parties to realize their obligation under Article 37 (b) of CRC to use deprivation of liberty only as a measure of last resort[243].
313. Furthermore, the use of alternatives to the deprivation of liberty, in the case of juvenile offenders not only adequately ensures their right to personal liberty, but also serves to protect the children’s rights to life, to physical integrity, to development, to family life and others. The Commission highlights that in order to avoid the negative consequences of the deprivation of liberty, alternatives to it must endeavor to make it easier for juvenile offenders to continue their education, maintain and even strengthen their family ties, while supporting those consigned to the state’s care and connecting the juvenile offender to community resources to facilitate his or her re-assimilation into community life.
314. At the same time, the Commission observes that some alternative measures could lead to violations of the principles of legality, proportionality of the sentence and minimum intervention, as well as jeopardize the child’s right to due process. Therefore, the way in which these measures are applied in the region needs to be examined carefully. Such measures must meet the same general requirements that apply to alternatives to adjudication in juvenile court, such as the child’s right to be heard, adequate judicial oversight of the measures, and limits on judicial discretion.
315. From the information compiled for this report, the Commission observes that there are alternatives to the deprivation of liberty everywhere in the region, although the means and manner by which they are applied vary significantly from one country to the next. The non-custodial measures most often used include the following: (a) probation programs; (b) warnings and reprimands; (c) rules of conduct; (d) community programs; (e) individualized diversion programs, and (f) penalties aimed at restorative justice.
316. The probation or assisted release programs tend to be those most often used in the Latin American countries. Generally, the assisted release programs require the child to attend a socio-educational program; while the probation programs tend to require that a professional social worker has regular contact with the child, and with his or her family and community. The non-custodial measures also tend to include warnings by the judge as to the harm done and the consequences to be faced face if the child does not improve his or her behavior, to reprimands to warn the child not to repeat the unlawful conduct. Other types of penalties tend to involve rules of conduct or behavior, such as prohibiting the child from going to certain places or events, prohibiting the child from driving motor vehicles, and others. Non-custodial measures also include punishments such as requiring the child to attend counseling and to join socio-educational programs. The laws also routinely provide for penalties aimed at restorative justice, such as providing community services, the obligation to repair the damage done or harm caused, or the obligation to provide the victim with some form of satisfaction.
317. In some English-speaking countries of the hemisphere, non-custodial measures tend to be of five types. The first is that before the child can be exonerated -- the child must stay clear of any criminal activities during a certain period. The second is that the child must pay a fine to the court as a result of the violations of the law committed. A third type of non-custodial measure is to send the child to live with a “fit person”, which may be an individual or an institution. The fourth is to require that the child participate in some type of program to redress the wrong that the violation of the law has caused. The fifth is to require that the child participate in educational or vocational programs or attend therapy.
318. Although these non-custodial measures are available, the Commission is troubled by the fact that the measure most often used in the case of juvenile offenders continues to be incarceration. Non-custodial measures are not used more often because the community programs needed for the children to perform the non-custodial sentences are not available, particularly in rural areas; the funding for the non-custodial programs is not adequate; the authorities responsible for children in conflict with the law do not coordinate with each other; and the mechanisms for supervising compliance with these measures are few.
319. The Commission also observes that judges sometimes feel they have the authority to exercise greater discretion when ordering non-custodial measures. In such cases, the alternative, non-custodial measures can end up becoming a form of social control over the juvenile offender, without respecting his or her right to due process. To avoid this situation, the Tokyo Rules establish certain legal safeguards that are to be observed when selecting and implementing non-custodial measures in the case of juvenile offenders. Those rules provide that the non-custodial measures must be proportionate to the seriousness of the offence and the offender’s history, and reflect the principles established for sentencing. Any form of medical or psychological experimentation on juvenile offenders is prohibited, as are measures that pose some unnecessary risk of physical or mental harm. According to these rules, the decision as to whether to order a non-custodial measure must be subject to review by a judicial or other competent, independent authority, at the offender’s request, and his or her dignity is to be respected at all times.[244]
320. In the Commission’s view, some non-custodial measures may be inappropriate, given the States’ obligations under international human rights law. For example, a fine would not be an appropriate sentence for children and adolescents below the minimum compulsory education age under international standards. The Commission considers that ordering fines may have the effect of forcing children to engage in work that, by international standards, is inappropriate for their age. The Commission considers that ordering fines may also have the effect of forcing children to engage in work that, despite their youth, exposes them to the risk of violence and exploitation. Furthermore, the fines are generally paid by the parents, which is a violation of Article 5(3) of the American Convention, according to which punishment shall not be extended to any person other than the criminal.
321. The Commission also points out that particular care must be taken when applying measures that involve some form of restorative justice, or a measure requiring the child to compensate the victims for the damages that his or her violation of the law caused. Requiring children to return stolen property to its owners might be one non-custodial measure; however, requiring that the child financially compensate the victims, even if only a token amount, could have the effect of forcing the child to seek work in order to earn the money. This could end up being a violation of the prohibition of child labor and expose the child to needless risk.
322. As for the non-custodial measures that require the child to live with a “fit person,” the Commission believes that a distinction must be made between the child’s obligation to live with a responsible relative or adult, and the practice of referring to institutions as “fit persons”. The Commission has learned that this non-custodial measure has sometimes been implemented in practice by sending the juvenile offender to a correctional facility, which is a form of deprivation of liberty and hence cannot be regarded as an alternative, non-custodial measure.
323. The Commission is also concerned by the fact that the non-custodial measure ordered for the child may involve a broad spectrum of conditions and obligations, to the point that many children end up facing measures that are much more intrusive than the severity of their offense warrants, in violation of the principle of the proportionality of the sentence and the principle of minimum intervention. The Commission agrees with the Committee on the Rights of the Child, which has observed that States can take measures to suspend the proceedings in the juvenile justice system, which would be deemed terminated if the measure intended to suspend the process is carried out in a satisfactory manner.[245] However, it is troubled by cases in which the non-custodial measure was ordered in a final judgment but the cases are nonetheless not definitively closed and the child has to appear in court again and is charged with failure to comply with a valid court order, which in many cases would mean much more severe sentences, possibly even incarceration. The Commission points out that failure to comply with conditions attached to measures that, if satisfied, could demonstrate rehabilitation and thus suspend juvenile justice proceedings, ought not to result in more severe penalties than those that the original violation carries. They should never be equivalent to the penalties imposed on adult offenders.
324. As for orders to perform community service in lieu of incarceration of juvenile offenders, the Commission considers that these might well be a suitable non-custodial measure, provided certain requirements are met.
325. First, regardless of whether these programs are designed for the general population or are specifically designed for children given non-custodial sentences, and whether or not these programs are run by government or civil society organizations, they must be strictly supervised to prevent any exploitation of the child. Second, the IACHR emphasizes that a child’s participation in community service programs must, under no circumstances, affect his or her schooling, health or physical or psychological well-being. The educational or therapeutic programs sometimes require the family’s participation. Third, it should be made very clear that the actions or omissions of third parties ought not to affect the determination as to whether or not the child has complied with the non-custodial measures. In other words, the parents’ participation in family therapy must be voluntary and their non-participation ought not to influence the evaluation of the child’s fulfillment of the non-custodial measure ordered.
326. If the orders to participate in community service programs are properly supervised, do not infringe upon the child’s rights and do not require third-party involvement, the Commission believes that they are a positive and viable alternative to the deprivation of liberty, especially when the orders to attend educational, vocational or specific therapeutic programs are intended to effect positive changes in the juvenile offender’s conduct. The Commission also believes that these programs can be an effective way to reduce the stigmatization that juvenile offenders suffer, thereby facilitating their re-assimilation into the community.
327. The Commission therefore takes a positive view regarding the laws in many countries of the region, particularly in Latin America, providing for community service orders. For example, according to the information received, Article 11 of Chile’s Juvenile Criminal Responsibility Act provides that “a sentence of community service consists of performance of unremunerated activities for the sake of the community to benefit the needy.” Guatemala’s Comprehensive Child and Adolescent Protection Act provides for a sentence of community service, which shall consist of unremunerated services for the general welfare in public and private assistance agencies, such as hospitals, schools, national parks and other similar establishments. Peru’s Child and Adolescent Code provides for a sentence of community service, which means performing tasks appropriate to an adolescent’s aptitude, without harming his or her health, schooling or work, and under the supervision of the technical staff of the Office of the Operations Manager of the Judiciary’s Juvenile Facilities, and in coordination with local governments. In the Dominican Republic, one finds the same kind of regulation of community service, where the Code for the System of Protection and Fundamental Rights of Children and Adolescents expressly states that these measures are not to affect the child’s health or physical and psychological well-being.
328. While the Commission has expressed serious reservations regarding some non-custodial measures, measures of this type are nonetheless an integral part of a juvenile justice system that is consistent with the principles and obligations established in international human rights law. The Commission is recommending that the States amend their laws to make it mandatory to apply, as a first option, a wide range of non-custodial measures as alternatives to custodial measures. The Commission is urging the States to enforce in practice those provisions that allow non-custodial measures to be used in place of the sanction of imprisonment. The Commission also recalls that the adoption of laws incorporating alternative non-custodial measures must be coupled with adequate funding for programs in which children can participate as an alternative to imprisonment. Furthermore, the guarantees of due process must be observed in all cases in which alternative measures are used, especially those that are restorative in nature.
329. States are also encouraged to enlist members of the community to help design, support and monitor the non-custodial sentencing, as this can improve the chances that the conditions are met, which in turn will encourage the courts to rely more heavily on non-custodial measures. Having members of the community participate in devising non-custodial measures and then supervising them, combined with the introduction of restorative justice processes, can help bring about a reconciliation between victims, offenders and members of the community and hasten the child’s re-assimilation into the community.
330. The Commission recommends that States ensure the programs that make non-custodial sentences possible are available in the communities in which the sentenced children live, and are not confined only to the major cities. The Commission appreciates a number of positive experiences in this regard. In Costa Rica, for example, a high percentage of the penalties imposed are non-custodial measures;[246] in Brazil, a policy guideline has been adopted to the effect that children’s needs are best addressed at the municipal level, and a new management model has been introduced that coordinates nongovernmental organizations and public authorities.[247]
331. Finally, although implementation of non-custodial measures as an alternative to incarceration is an obligation incumbent upon the States under international law, the Commission must also point out that it has received reports to the effect that the non-custodial alternatives to the deprivation of liberty are less costly than incarceration, and more effective in accomplishing the ultimate goal of a juvenile justice system, which is to integrate the children into society as constructive members, and in the process improve public safety by reducing the incidence of repeat offending.[248]
332. Custodial measures should be used once it has been shown and proven that non-custodial measures are inadvisable in a given case and after a careful review, taking into account the principles of legality, last resort and proportionality of the sentence, as well as other relevant considerations.[249]
333. The IACHR has defined deprivation of liberty as:
Any form of detention, imprisonment, institutionalization, or custody of a person in a public or private institution which that person is not permitted to leave at will, by order of or under de facto control of a judicial, administrative or any other authority, for reasons of humanitarian assistance, treatment, guardianship, protection, or because of crimes or legal offenses. This category of persons includes not only those deprived of their liberty because of crimes or infringements or non compliance with the law, whether they are accused or convicted, but also those persons who are under the custody and supervision of certain institutions, such as: psychiatric hospitals and other establishments for persons with physical, mental, or sensory disabilities; institutions for children and the elderly; centers for migrants, refugees, asylum or refugee status seekers, stateless and undocumented persons; and any other similar institution the purpose of which is to deprive persons of their liberty[250].
334. Similarly, Rule 11(b) of the Havana Rules has defined deprivation of liberty as any form of detention or imprisonment, or the placement of a person in a public or private custodial setting from which the child is not permitted to leave at will, by order of any judicial, administrative or other public authority.
335. The definitions are important to bear in mind since, where children are concerned, the member States and their laws frequently avoid the use of words like jails, deprivation of liberty, confinement or cells, and replace these words with euphemisms like homes, comprehensive treatment centers, internments, dormitories, shelters, and others. The principles and standards discussed in this report apply to all institutions, both public and private, that are used to house children under the age of 18 who have violated a criminal law.
336. In this chapter, the Commission will examine the principles that must guide and delimit the use of penalties of incarceration, which, in the case of children, should be used only as a last resort, and must be proportional to the crime, last as short a time as possible and be subject to periodic review. Care must also be taken to ensure that the children deprived of their liberty are allowed contact with their families and communities.
337. The Commission will carefully examine the classification criteria that apply to children who are deprived of their liberty and will analyze the States’ obligation to guarantee that children who are subject to these types of sanctions are able to exercise their rights. The Commission will make specific reference to the detention conditions and the need to prevent, investigate and punish any form of institutional violence. Finally, the Commission will look at some of the measures that States must take once children have been deprived of their liberty in order to ensure that their rights are protected and that they are able to rejoin their community.
1. Limits on the Deprivation of Liberty
338. The criteria that the Commission explained in the preceding paragraphs concerning the principles that must be observed when applying custodial precautionary measures also apply to the custodial measures ordered when a child is sentenced for violating the law.
339. Thus, in order to be legitimate, any sentence involving deprivation of liberty must, when applied to a child held responsible for violating the law, comply with the principles of last resort and the proportionality of the sentence; it must be for the shortest time possible; furthermore, children sentenced to deprivation of liberty must enjoy all the rights and protections that their age, gender and individual characteristics dictate. The Commission urges the States to unreservedly respect these principles and the rights of the child when he or she is incarcerated for violating the law, as every system of justice must be comprehensive, restorative and centered on the rehabilitation of the child or adolescent offender and their reintegration into the community.[251]
a. Custodial Measures as a Last Resort
340. Article 37(b) of the Convention on the Rights of the Child reads as follows:
The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time.
341. The principle of last resort is also guaranteed by other international norms on the subject, particularly Rule 19 of the Beijing Rules, and Rule 2 of the Havana Rules.
342. The Commission, for its part, has observed that when applying measures that deprive the child of liberty, one consideration has to be that deprivation of liberty is the ultima ratio, and therefore other types of measures must be preferred, without resorting to the judiciary system, whenever this is adequate.[252]
343. The IACHR has also indicated that:
... international human rights law favors reserving those penalties that most severely restrict a minor's fundamental rights for only the severest of crimes. Hence, even in the case of criminalized offenses, laws protecting the child must advocate some form of punishment other than imprisonment or deprivation of liberty[253].
344. Observance of the principle of last resort requires prioritization and the availability of non-custodial sentences.[254]
345. Furthermore, the principle of last resort serves not only to protect children’s right to liberty, but also their rights to life, their right to survival and development, and their right to a family life. In reference to Article 6 of the Convention on the Rights of the Child, which protects the right to life and the right to survival and development, the Committee on the Rights of the Child has observed that “the use of deprivation of liberty has very negative consequences for the child’s harmonious development and seriously hampers his/her reintegration in society.”[255]
346. As mentioned in the chapter on non-custodial alternatives to the deprivation of liberty, almost everywhere in the region there are provisions allowing judges to apply non-custodial measures in lieu of a sentence that would deprive the child of his or her liberty. Nevertheless, those measures are not uniformly applied, and judges continue to opt in favor of sentences of incarceration as the preferred sentence for juvenile offenders, in violation of the standards of international law. Furthermore, due process and other children’s rights are often violated when the non-custodial measures are ordered. The States of the hemisphere do not have the funds to finance programs that allow implementation of non-custodial measures; that lack of funding is one of the principal obstacles to guaranteeing the right of juvenile offenders that prison will be used only as a last resort.
347. The Commission observes that a number of States have established minimum ages at which the juvenile justice system can deprive children of their liberty. For example, Mexico’s Constitution provides that at both the federal and state level, incarceration will be used only as an extreme measure and for the shortest appropriate period of time, and can only be used in the case of adolescents over the age of 14 convicted of very serious, antisocial behavior. In Nicaragua, children and adolescents between the ages of 13 and 15 cannot be sentenced to imprisonment.
348. Some States have established age brackets, such that the maximum custodial sentence that can be administered in the case of children and adolescents subject to the juvenile justice system is age-based. For example, in Venezuela, the maximum custodial sentence that children over the age of 12 but under 14 can receive is two years; whereas children of 14 but under 18 can be deprived of their liberty for up to 5 years. In Guatemala, children between 13 and 15 years of age can be deprived of their liberty for up to two years, while those between 15 and 18 can be deprived of liberty for up to six years. In Nicaragua, only those over 15 but under 18 can be deprived of their liberty for up to 6 years.
349. The Commission reiterates the recommendations made in the chapter on non-custodial measures, and urge the States to spare no effort to make the principle of last resort a reality, as it must be one of the underlying principles of every juvenile justice system and should be administered as well in the case of children found responsible for violating criminal laws. The Commission is also recommending that regulations be adopted to limit the degree of discretion that judges can exercise in administering criminal punishments and custodial sentences, based on the principle of last resort. This can be accomplished either by regulating the minimum ages at which children can be deprived of their liberty or establishing age brackets that distinguish the maximum custodial sentence a child can receive according to his or her age, provided the maximum custodial terms are very short.
b. The Proportionality of Custodial Measures
350. Under international rules and standards, the response to children found responsible for violating criminal laws must respect the principle of proportionality of the sentence.[256] This means that the punitive reaction must be in proportion to the seriousness of the offense; in other words, the lesser the offense, the lesser the penalty should be; the lesser the role that the person played in the commission of the offense, the lesser the sentence that he or she should receive. Under Article 40(4) of the Convention on the Rights of the Child, the proportionality of the sentence is related to the child’s circumstances and the offense; but not to the educational needs.
351. Thus, the penalty for a juvenile offender must consider the proportionality between the conduct and the degree of harm that the offense caused with respect to protected legal rights. Furthermore, the measure must be selected in accordance with the principle of minimum intervention.[257] Rule 5(1) of the Beijing Rules provides that:
The juvenile justice system shall emphasize the well-being of the juvenile and shall ensure that any reaction to juvenile offenders shall always be in proportion to the circumstances of both the offenders and the offence.
352. Both the Inter-American Court[258] and the Committee on the Rights of the Child have addressed this principle. The Committee has observed that:
...the reaction to an offence should always be in proportion not only to the circumstances and the gravity of the offence, but also to the age, lesser culpability, circumstances and needs of the child, as well as to the various and particularly long-term needs of the society. A strictly punitive approach is not in accordance with the leading principles for juvenile justice spelled out in Article 40 (1) of CRC ...[259].
353. Many countries of the hemisphere have laws upholding the principle of the proportionality of the sentence. By way of example, Article 26 of Costa Rica’s Juvenile Criminal Justice Act clearly states that the sentences imposed in the proceedings shall be reasonable and proportional to the offense or crime committed. Article 27 of that law prohibits open-ended sentencing.
354. Nevertheless, even though such provisions are common in the hemisphere, the Commission has received information to the effect that, in practice, States do not observe this principle when sentencing juvenile offenders. In fact, open-ended sentences are still being handed out in some places in the hemisphere. The Commission was informed, for example, that in Suriname, the courts do not necessarily specify how long the child is to remain in custodial care; generally, children remain in prison until they turn 21.[260]
355. The juvenile justice system’s response is often based on a juvenile offender’s personal or family circumstances rather than the offense itself. For example, the Commission was told that in Brazil, a considerable amount of discretion is exercised in proceedings conducted against juvenile offenders, such that the sentences seem to be the result of a friendly conversation between judges, advocates and defense attorneys. The system produces entirely different outcomes for similar offenses.[261]
356. Contrary to the principle of proportionality of the sentence and the principle of equality and non-discrimination, there are too many cases in which the punitive response to the conduct of juvenile offenders is harsher than it is in the case of adults who have committed a crime. For example, the Commission has received information indicating that in the United States, children are prosecuted with adults for the same crime, and yet the children can receive tougher sentences than their adult co-defendants.[262]
357. The Commission was disturbed to learn that in many States in the United States in which children can be tried in adult court, judges are not allowed to consider the child’s age when deciding the length of his or her sentence. The mandatory sentencing guidelines are particularly problematic in the case of children. According to the information concerning the United States, a homicide conviction in South Carolina carries a mandatory minimum sentence of 30 years without the possibility of parole.[263] In California, murder with special circumstances carries a presumptive sentence of life in prison, with no possibility of parole, except where there is good reason to replace the life sentence with a sentence of 25 years.[264] In some States, gang murder is a circumstance that creates a presumptive sentence of life in prison without the possibility of parole.[265] In addition, in some States within the United States, children who do not commit the murder themselves but are instigators or accomplices –for example, if they drive the car in which the escape was made- can also face life sentences without the possibility of parole.[266]
358. The Commission was also struck by information it received to the effect that in some countries of the Caribbean, children are sentenced to deprivation of liberty in an institution for a specific period of time, irrespective of what law they have violated. The idea is that they are participating in a rehabilitation program and must spend a certain amount of time in the program if it is to have any effect. According to the information that the Commission obtained during its visits, in Guyana, children are sentenced to time in the New Opportunities Corps, for not less than one year and no more than three; in Belize, children are sentenced to the Juvenile Hostel and to the National Youth Cadets to serve for two years; in Trinidad and Tobago, children are sentenced to the Youth Training Center for three years if the sentence is imposed by a magistrates’ court, and four years if sentenced is imposed by a superior court.
359. The IACHR encourages States to enforce laws allowing the state’s response to offenses by children to be in proportion to the circumstances under which the offense was committed, the seriousness of the offense, the child’s age and needs and other considerations.
c. The Duration of Custodial Measures
360. When, in observance of the principles of last resort and the proportionality of the sentence, a State decides to sentence a child to some form of deprivation of liberty for violation of a criminal law, it must also make certain that the measure has an upper limit, which should be reasonably short.
361. Article 37 of the Convention on the Rights of the Child expressly prohibits capital punishment and life imprisonment without parole:
...Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age.
362. The CRC thus prohibits capital punishment. The same is not true of life imprisonment, which is not prohibited outright, but can be used provided the possibility of release exists. As for the scope of the possibility of release, the Committee on the Rights of the Child has interpreted this provision as follows: “the possibility of release should be realistic and regularly considered”[267].
363. The foregoing notwithstanding, the IACHR observes that the trend today is to eliminate the possibility of life sentences for children and adolescents who infringe the law. In the Commission’s view, that trend is very much in keeping with the States’ obligation under the American Convention and the American Declaration, which is to afford children special protection. In its General Comment on children’s rights in juvenile justice, when interpreting the CRC, the Committee on the Rights of the Child recommends that all forms of life imprisonment be abolished inasmuch as “life imprisonment of a child will make it very difficult, if not impossible, to achieve the aims of juvenile justice despite the possibility of release.”[268] For the Commission, children and adolescents must be treated in a manner that serves to preserve and cultivate their dignity, the objectives of juvenile justice and the State’s special obligations to respect and guarantee their rights, so that all forms of corporal punishment, or any punishment that violates their personal integrity and thwarts their reintegration as constructive members of society, are to be eliminated.
364. The IACHR concurs that a sentence of life imprisonment for children under the age of 18 makes it impossible to achieve the purposes that punishment under the juvenile justice system is intended to serve, such as the child’s rehabilitation and his or her reintegration into society. It echoes the Committee on the Rights of the Child when it recommended to the States parties that they eliminate all forms of life imprisonment in the case of offenders under the age of 18. In the Commission’s view, the possibility, in law, of release is not per se sufficient to make a sentence of life imprisonment compatible with the international obligations the States have undertaken to afford children special protection, nor does it serve the purpose of punishment under the American Convention. Either way, the question of whether there are opportunities for periodic review, and whether the principles governing the state’s punitive authority vis-à-vis children are being observed, must be evaluated.
365. Even so, the Commission has received information indicating that in some States of the Americas, children can still be sentenced to death. From what the Commission has been told, a law is still in force in Saint Vincent and the Grenadines that prohibits capital punishment in the case of minors under the age of 16; in other words, capital punishment is a possibility in the case of minors between the ages of 16 and 18.[269]
366. Indeed, the sentence of life imprisonment is common in some States of the hemisphere. Through its system of cases and petitions, the Commission has learned of the situation in Argentina,[270] where Decree-Law 22,278 sets up a system in which the rules that apply to adults also apply to juvenile offenders for purposes of sentencing and the possibility of release. Under that law, children can face the maximum sentences allowed under Article 80 of the Argentine Penal Code, specifically, life imprisonment and confinement. The Commission observes that while Decree-Law 22,278 provides that juvenile offenders are to begin to serve their sentence once they turn 18 years of age, the States’ obligation to afford special measures where juvenile justice is concerned is not based on the age at which the sentence will be served, but rather on the age at which the crime was committed. Therefore, based on the objectives and principles of juvenile justice, the state’s response to such violations must be different from its response to violations committed by adults. The Commission is concerned that under these provisions, children who were found guilty of violating criminal laws before attaining adulthood are treated as adults and sentenced to life in prison, which is incompatible with the purposes that penalties under the juvenile justice system are intended to serve.
367. Similarly, according to the information the Commission has received, more than 2,500 persons are serving life sentences in the United States for crimes committed when they were still under 18 years of age. Also, the laws in Belize permit a sentence of life in prison without the possibility of parole, for crimes committed by persons under the age of 18.[271] In Saint Lucia,[272] Saint Vincent and the Grenadines[273] and Jamaica,[274] a person who has committed a crime while still a minor can be sentenced to life imprisonment. In Antigua and Barbuda,[275] the law does not specify how long a person who has committed murder as a minor can be held, which means that confinement for life is possible.
368. The Commission was concerned at reports it received to the effect that in a number of Caribbean countries, children can be held for an indefinite period, and that review is not required. This can amount to a sentence of life imprisonment without the possibility of parole. For example, the Commission was told that in Barbados[276] and Dominica,[277] a child can be locked up for an indefinite period of time, at the discretion of the Governor-General and President, respectively.
369. The Commission also notes that while a number of States in the hemisphere prohibit life imprisonment, a number of States also have laws that prescribe very long maximum sentences. For example, according to the information the Commission received, the maximum sentence in Costa Rica is 15 years; in Chile 10 years; 8 years in Honduras, Paraguay and Colombia; and 7 years in El Salvador. However, according to information the Commission has obtained, under El Salvador’s 'Anti-Mara' Law, the maximum sentence could be extended for up to 20 years.[278] Similarly, under Peru’s Law to Counter Aggravated Terrorism, children between 16 and 18 years of age can be sentenced to no less than 25 years. In the Commission’s view, this type of legal solution is incompatible with the principle of the brevity of the deprivation of liberty applicable to minors.
370. In the case of minors, prison sentences that are excessively long violate the provision of the Convention on the Rights of the Child under which imprisonment is to be for the shortest appropriate period possible. They also violate the States’ obligations under Article 19 of the American Convention and Article VII of the American Declaration, which recognize children’s rights to measures of special protection. Such sentences also defeat the purpose of penalties in juvenile justice.
371. The Commission urges the States to establish, by law, the maximum duration of the sentences that minors held responsible for violating the law can receive, and to ensure that the length of the sentence is suited to a child’s age and development, recognizing that the adverse effects of incarceration are even more pronounced in children. The Commission also recommends that the States abolish the death penalty and life sentences for minors.
d. The Periodic Review of Custodial Measures
372. The principle requiring that deprivation of liberty be a measure of last resort and for the shortest period of time possible requires that States introduce mechanisms to make periodic review of custodial sentences possible in the case of juvenile offenders. If circumstances have changed and the child’s confinement is no longer necessary, States have a duty to release them, even when they have not served out the full term of the custodial measure ordered in each case. States must therefore ensure that their laws provide for early release programs.
373. Interpreting Article 25 of the CRC, which provides for periodic review of the child’s treatment and other circumstances related to his or her deprivation of liberty, the Committee on the Rights of the Child has emphatically stated that “the possibility of release should be realistic and regularly considered.”[279]
374. Rule 28(1) of the Beijing Rules provides that:
Conditional release from an institution shall be used by the appropriate authority to the greatest possible extent, and shall be granted at the earliest possible time.
375. Some States in the region have made provision for early release programs. From the information it obtained, the Commission has learned that these programs are of various types, which include: permits that allow the child to return to his or her family and community on certain days; regular time-off regimes (every weekend, for example); replacement of the custodial measure with other measures, such as semi-release or non-custodial measures.
376. In Uruguay, for example, the periodic review involves an assessment of whether the goals of the custodial measure or any other penalty have been accomplished. Article 94 of Uruguay’s Child and Adolescent Statute provides that an order is to be issued as soon as it is established that the socio-educational purpose has been accomplished. The applications to replace, modify or terminate the measures will give rise to a hearing at which the child, his or her legal representatives, defense counsel and the Public Prosecutor’s Office will participate.
377. In the case of Brazil, where a child can be deprived of his or her liberty for no more than three years –doubtless one of best pieces of legislation in terms of compliance with the brevity principle-, Article 121 of the Child and Adolescent Statute also requires that the custodial measure be reviewed every six months until the child reaches the age at which he or she must be released, which is 21.
378. Article 371 of Ecuador’s Child and Adolescent Statute provides that the judge can modify or replace the sentence imposed, if the report prepared by the team of experts from the institution in which the child is serving his or her sentence is favorable, and any of the following circumstances is present: a) the child has, by the time he or she turns 18, served half his or her sentence; b) the Director of the custodial facility for juvenile offenders requests it; and c) every six months, if the child or his or her representative so request.
379. All the Central American countries allow a custodial measure to be replaced by a non-custodial measure; a number of States allow conditional execution of a custodial sentence, as in the case of Costa Rica,[280] Guatemala,[281] and Panama.[282]
380. In Canada, a child’s custodial sentence is periodically reviewed to determine whether he or she should be released earlier than stipulated in the sentence. Under Canadian law, a portion of a child’s sentence, normally one third, must be served in the community. The objective of this law is to ensure a period of transition between the time the child leaves the institution and is sent back to his or her community, which also gives the parole department at least one third the time of the sentence to assist the child in rejoining his or her community. Planning for the child’s release begins once the child is subject to the custodial measure, and plans for his or her re-assimilation are tailored to the specific child’s needs, with a social worker who specializes in juvenile parole and who will also be responsible for following up on the plan’s implementation.[283]
381. Belize, too, has an early release program. Children incarcerated in Belize’s central prison, run by the Kolbe Foundation, can be paroled once they have served one third of their sentence. They are required to appear before a Parole Board, which will decide whether they should be granted parole. Once they have served two thirds of their sentence, they can apply for release.
382. Other types of early release programs in the English-speaking countries of the region include parole, which means that the children must meet certain conditions if they want to be released early. As a rule, parole officers oversee compliance with the parole conditions. Nevertheless, from the information the Commission has obtained, it appears that not many children are benefitting from the parole programs. In Suriname, for example, officials at the Santo Boma prison told the Commission during its visit that, in 2007, 11 children were released on parole; in 2008 that figure was 8.
383. The IACHR observes with concern that the periodic review of the custodial measure does not occur in all States of the region; in some States, there is no possibility of early release. The Commission observes that in those States that do allow early release, the conditions for it are often too severe. These conditions are set by the court that orders early release, without regard for the principles of the proportionality of the sentence and the principle of minimum intervention.
384. As happens in the case of the diversion programs and the alternative, non-custodial measures, when conditions are imposed for a child’s early release, they must not be overly intrusive; instead they must be in proportion to the offense for which the child was found guilty. The alternative, non-custodial measure ought not to represent a temporary extension of the socio-punitive control over the child. It is therefore unacceptable for the non-custodial measure that replaces the custodial measure to effectively prolong the time of the sentence the child was originally given for an offense.
385. The Commission also observes that in States where early release is allowed, the latter is often contingent upon an application from the parents of the child being held. For example, during the visits the Commission made in preparation for this report, it learned that in Guyana, parents can apply to the Minister of the Interior for their child’s early release, but few parents know this and no efforts are made to inform them of this rule.
386. In the Commission’s view, early release must be based on a procedure established in the respective law and ought not to depend on a specific request, whether from the child or his or her parents or representatives, or defense counsel. All children subject to custodial measures must have representation to ensure that they are kept fully informed of the opportunities for early release and that those opportunities are used to good effect.
387. The Commission emphasizes how vital it is that States establish mechanisms through which children who apply for early release, and even parole, are able to receive assistance from an officer who specializes in facilitating the child’s re-entry into the community.[284] The Commission will discuss this point at greater length in the section devoted to the measures subsequent to confinement.
388. The IACHR again points out that it is the obligation of the States to set up mechanisms by which the custodial measures that children under the age of 18 are serving can be reviewed, so that they can apply for early release programs when there is no reason why their incarceration should continue.
e. Contact with Family and Community
389. In application of the principle of last resort, States must ensure that children will not be separated from their families except in exceptional circumstances. As the Inter-American Court has held:
The child must remain in his or her household, unless there are determining reasons, based on the child’s best interests, to decide to separate him or her from the family. In any case, separation must be exceptional and, preferably, temporary…The State, given its responsibility for the common weal, must likewise safeguard the prevailing role of the family in protection of the child; and it must also provide assistance to the family by public authorities, by adopting measures that promote family unity [285].
390. For a child, contact with family and community is especially important when the time comes to ensure that a child, who has been subjected to some custodial measure, will be successfully re-assimilated into society. Therefore, when incarcerating or otherwise confining a child, every effort must be made to ensure respect for his or her right to contact with family, community and friends.[286] This contact can be by allowing correspondence, authorized time outside the facility, or frequent and regular visits.[287]
391. The responses received to the questionnaire the Commission sent to the States in preparing for this report, make reference to rules recognizing visitation rights but not to the actual exercise of that right. The Commission has been told that this may be because there are no records showing the frequency of the visits that each child deprived of their liberty receives, which suggests that the States are not diligently monitoring to ensure that this right is exercised.
392. Some States in the Caribbean answered the Commission’s request for information and from their responses one can infer that the exercise of this right varies greatly from one country to the next. For example, Saint Lucia reported that 100% of the children incarcerated or otherwise confined had been visited by family members, friends or members of the community within the last 3 months; in Suriname this figure is 40%, while in Guyana the figure is between 5% and 10%.
393. The right to receive visits and have contact with family means that the detention facilities must be geographically accessible to the family and must have facilities that allow for some degree of privacy in contacts with the family.[288] States must have decentralized centers, preferably small in size, located near the children’s hometowns. The Committee on the Rights of the Child has observed that “in order to facilitate visits, the child should be placed in a facility that is as close as possible to the place of residence of his/her family”.[289]
394. Rule 61 of the Havana Rules provides that:
Every juvenile should have the right to communicate in writing or by telephone at least twice a week with the person of his or her choice, unless legally restricted, and should be assisted as necessary in order effectively to enjoy this right. Every juvenile should have the right to receive correspondence.
395. Contact with the community must ensure, within reasonable limits, access to education and vocational training within the community. Centers in which juvenile offenders are held must be set up and form part of the community’s social, economic and cultural environment.[290] When children who are subject to custodial measures participate in community activities, they ought not to be required to use clothing that identifies them as institutionalized children.
396. Nevertheless, the Commission has received information in the process of preparing this report to the effect that programs for serving sentences tend to be located in capital cities or in departmental capitals or major cities, which makes life even more difficult for children who are sent there from remote areas, and who virtually lose contact with their families, with the result that re-assimilation into the family and the community never really happens
397. By way of example, a study conducted of juvenile detention facilities in Uruguay found that 86% of the children said they had visitors, and 14% said they did not. But the experience of incarcerated children from Montevideo was quite different from that of their counterparts in the country’s interior, where only 76% of those interviewed said that they had had visitors.[291] Likewise, officials from the Commission’s Executive Secretariat who visited Guyana in preparation for this report were told that the one juvenile detention center in Guyana was a 30-minute drive from the capital, Georgetown, followed by a 30-minute boat ride, and then a 30-minute drive by car.[292]
398. The Office of Peru’s Ombudsman said the following about this problem:
The fact that juvenile detention facilities are located in certain cities in the country means that there are areas where, if the court orders that a child be confined to such a facility, the child will be a considerable distance away from family with the result that he or she will receive few if any visits from family members. This will cause the family bonds to weaken or even break. When that happens, the child’s right to family unity will have been seriously restricted.[293]
399. Similar information was reported to the Commission in connection with Chile:
One practical problem that occurs mainly in the Metropolitan Region is the remote location of a number of juvenile facilities … Elsewhere, the children and adolescents are confined to centers that are too far removed from their communities or are difficult to reach. This makes communication with family members difficult; the latter cannot afford the outlay of time and money that visiting those centers on a regular basis would mean.[294]
400. Cases like Uruguay are the exception, as it provides resources to parents, guardians and other family members who otherwise would not be able to afford to visit the centers for financial reasons. When this kind of help is provided, it is not because the law so stipulates, but rather because the juvenile detention facilities have made it their administrative policy. According to the reports the Commission received during its visits in preparation for this report, this kind of financial assistance that enables family members to visit children deprived of their liberty is available in some Caribbean countries if the family applies to the pertinent ministry. However, the vast majority of the families are not aware of this.
401. States have an obligation to ensure that visits by family members are comfortable and enable them to bond. During the course of the visits made in preparation for this report, the Commission learned of some of the best practices in the region. For example, the Youth Training Center in Trinidad and Tobago has family days, when families can visit their children and take part in recreational activities or meals to celebrate holidays. Visits of this kind enable families to spend several hours together and to interact in a more natural setting, quite different from visits in an office.
402. Conversely, according to the information received, in other States, needless restrictions are imposed on the visits that children deprived of their liberty can receive. According to the information supplied to the Commission, in Venezuela, for example, the visiting schedule is twice weekly; although special visits and family gatherings are allowed, they will depend on the good behavior of the child deprived of his or her liberty. In Guyana, families can only visit their children at the New Opportunities Corps every two months, half as often as inmates at the adult prisons. At the Wagner Center in Belize, families can visit their children every day, but can stay for 15 or 20 minutes.
403. Another concern is that normally, only members of the immediate family can visit. The Commission observes that it is important for children to receive visits from the extended family, as well as friends and members of the community. Children will be able to return to their communities when they leave the institution, and the more ties they maintain with the community, the easier their reintegration will be.
404. Both the IACHR and the United Nations have observed that a child’s right to access to information by way of the media,[295] his or her privacy, private life and the confidentiality of his or her correspondence[296] must be respected. Nevertheless, the Commission has received information to the effect that books, magazines and newspapers are not allowed at some juvenile facilities in Peru, where correspondence is restricted to family members, and any incoming document must be checked first by the head of the facility, in the child’s presence.[297] This is the practice in other States of the region as well.
405. The Commission must again observe that the child’s contact with family and community is essential to his or her social reintegration, and is the only means to offset –at least in part- the breakdown and harm that deprivation of liberty causes to the child and to his or her family ties.
2. The Criteria for Classifying Children and Adolescents Deprived of Their Liberty
406. In this report, the Commission has made reference to the States’ obligation to separate children in whose lives it has intervened for the sake of assistance and protection from those that are under the juvenile justice system; it has also emphasized the obligation that States have to separate children being held in preventive detention from those already found responsible for violating criminal laws; it has emphasized the requirement that children deprived of liberty –whether in preventive detention or serving their sentence- must be segregated from the adult inmate population. But there are other criteria that States must also consider when classifying and segregating children deprived of liberty in order to protect their rights and prevent any possible harm or violence.[298] States must also take into account a child’s age, personality and the seriousness of the offense that the child is alleged to have committed, or has been found to have committed. The Commission will now discuss some of these criteria.
407. Article 37(c) of the Convention on the Rights of the Child provides that “... every child deprived of liberty shall be separated from adults unless it is considered in the child’s best interest not to do so ...”.
408. The need to house children deprived of their liberty in places separate from adults has repeatedly been emphasized by the Commission in the following terms:
In the Commission's view, Article 5(5), taken in combination with Article 19 of the Convention, make clear the State's duty to house detained minors in facilities separate from those housing adults. It is obvious that the obligation that follows from Article 19, namely, to grant a child special protection, cannot be interpreted solely as requiring the creation of juvenile courts; instead, "the protection required by his status as a minor" also means that minors shall be housed separately from adults, in other words, in special juvenile facilities ...Under Article 5(6) of the Convention, "Punishment consisting of deprivation of liberty shall have as an essential aim the reform and social rehabilitation of prisoners". The Commission believes that, in the case of children, this aim is absolutely impossible to achieve in penal institutions in which children are forced to live alongside adult criminals.[299]
409. In the Commission’s view:
A child deprived of liberty must not be held incommunicado or in an institution for adults. The prison system is today a basic factor in embarcation on a career of crime because, just as the prison applies programs for the correction of offenders, so does it use mechanisms that consolidate delinquency[300]. 410. The Court, too, has stated its opinion on this subject:
To safeguard the rights of children detainees, and especially their right to physical integrity, it is indispensable for them to be separated from adult detainees [301].
411. The Inter-American Court has warned that failure to separate children exposes them:
... to conditions highly prejudicial to their development and makes them vulnerable to others who, as adults, could prey upon them[302].
412. According to information supplied by some States, detained children are generally segregated from adults. For example, in response to the Commission’s questionnaire, Argentina reported that the institutions under the closed system -- which come under the authority of the National Secretariat for the Child, Adolescent and the Family and located in the city of Buenos Aires -- only house persons who are minors. However, it observed that in some provinces, children in conflict with criminal law are housed in provincial prisons.
413. At the same time, the Commission has received disturbing information on the situation in other States of the region. As a rule, the failure to segregate children from adults is because a number of States in the region do not include all children under the age of 18 under the umbrella of the special system of juvenile justice; instead, children aged 15, 16 and 17 are prosecuted in the regular criminal justice system and, if convicted, will be incarcerated in adult facilities.
414. But there are other cases, too. The Commission has learned, for example, that in Honduras, when it was discovered that over 800 children were being held in adult prisons, a nongovernmental organization filed 300 petitions of habeas corpus asking the court either to order the children released or to send them to facilities for children. All the petitions but one were allegedly denied. The Commission also learned that in Nicaragua, 28 convicted children were serving their sentence in the adult prison system.[303]
415. The Commission has also received disturbing information that concerns the situation of children detained or incarcerated in the United States. Under federal law, children are not to be housed in adult facilities, except for a narrow period before and after trial, or when they are in rural areas that have no access to juvenile facilities, or when the conditions for transporting them to juvenile facilities are not safe; even then, the law provides that they are to be separated from the adults, and not be visible to the adult inmate population, or within hearing distance of it. Nevertheless federal law does not require the same special segregation when a child is being tried in adult court. According to reports the Commission has received, children can be tried in adult court and can also be ordered to serve their entire sentence in an adult prison. The Commission learned that in just one day in 2008, there were 7,703 children under the age of 18 in local adult jails, and 3,650 in federal prisons.[304]
416. The information the Commission has received concerning certain Caribbean countries indicates that children tried in adult court serve adult sentences in adult prisons. In some Caribbean countries, even children tried in the juvenile justice system can be ordered to serve their sentences in adult prisons.
417. The situation is even worse elsewhere in some parts of the region. Some States do not have facilities for girls. In the Caribbean, for example, the available information suggests that only Jamaica, Guyana, Belize and Barbados have correctional facilities for girls, which means that in the other Caribbean States, if a female minor is convicted of violating the law, she is sent to the prison for adult women.
418. The Commission has also learned that in some countries of the region, boys are incarcerated in adult facilities because there is no space available in the centers for juvenile offenders. During its visit to Belize, for example, the Commission was told that while there are centers for juvenile offenders, 4 children were being held in the maximum security section of the Kolbe adult prison.
419. The Commission was also disturbed to learn that in some Caribbean countries, children can be transferred to adult prisons by law on the grounds that a child is deemed to be “of such an unruly character or so depraved a character” that he may be confined in an adult prison.[305]
420. The Commission observes that in some States, the juvenile detention facilities are housed inside the adult facilities, although an effort is made to keep children physically separated from the adult inmate population. According to information the Commission has received, the segregation is not always properly handled. For example, the Commission learned that in Chile, children come into contact with the adult inmate population in various ways: in the yard or inside the buildings, making the arrangement one of segregation in name only. The Commission was told that one of the principal causes of the problem is the poor prison infrastructure, which makes segregation impossible.[306] The Commission also learned that in Nicaragua, the children were separated from the adults by a wall, but they had to go through the adult quarters in order access the bathroom.[307]
421. The Commission must remind the States that the failure to segregate children and adults deprived of liberty is a violation of international human rights law. Accordingly, it is recommending that the States take measures to ensure that persons deprived of liberty are properly segregated by age and maturity, in order to prevent possible violence and abuse inside the prisons.
422. The Commission again points out that male children and female children must be housed in separate facilities. The facilities that house girls must be staffed with personnel especially trained to address their particular needs.
423. The Commission was gratified to learn that all those States that answered the questionnaire sent out to compile information for this report have taken measures so that girls are held separately by reason of their sex. In most cases, the facilities for girls are completely separate; in a few cases, while the cells for women are separate from those for men, the facilities nonetheless house both sexes. For example, in its answer to the questionnaire, Ecuador reported that it has eight facilities for boys, two for girls and two facilities that house both boys and girls, where they have common recreational, eating and laundry areas, but where living quarters are separate. Costa Rica reported that the Zurqui Center houses children of both sexes but keeps boys separate from girls. Colombia reported that it has only one facility that houses both sexes, which is the In-Transit Facility, where the only common space is the recreation area.
424. Nevertheless, the Commission has learned that in some States, detained children are not separated by sex. At a number of institutions in the Caribbean, boys are not separated from girls. Guyana and Suriname, for example, have confinement centers that accommodate children of both sexes.
425. Most of the States that answered the questionnaire said that specialized services were available for health, pregnancy and nursing. Argentina, for example, reported that while the one closed-system institution that is exclusively for girls, the Inchausti Institute, does not offer special services for girls who are mothers or pregnant, there are four juvenile detention centers that have agreements with the government of the city of Buenos Aires to house pregnant girls or girls with small children. In its answer to the questionnaire, Colombia also reported that pregnant girls ordered to serve custodial sentences are guaranteed health services, prenatal check-ups and psycho-prophylactic courses as well as counseling to help them deal with motherhood, and specialized medical care. Costa Rica, for its part, informed the Commission that girls housed in the one juvenile facility have access to the very same educational, cultural, recreational and other activities that the boys have; but girls also receive gynecological care and other specialized services. Costa Rica also reported that any pregnant girl receives the care that her condition requires. Arrangements are made with the judicial authorities so that the girl leaves the center prior to giving birth, generally by replacing the custodial sentence with non-custodial measures.
426. The Commission urges States to adopt the measures necessary to ensure that children deprived of their liberty are segregated by sex in such a way that children of both sexes have access to the same programs and services, and the facilities are able to offer girls all the specialized services they need, particularly regarding sexual and maternal health.
c. The Situation of Those Who Attain their Majority
427. It sometimes happens that a child serving a custodial sentence after being convicted of violating the law when he or she was not yet 18, turns 18 while serving his or her sentence. The Committee has specifically addressed this situation and has interpreted the rule of separation by age based on the best interests of the child. As the Committee observed:
This rule does not mean that a child placed in a facility for children has to be moved to a facility for adults immediately after he/she turns 18. Continuation of his/her stay in the facility for children should be possible if that is in his/her best interest and not contrary to the best interests of the younger children in the facility[308].
428. The Commission fully concurs with the Committee’s interpretation. The member States, for their part, gave different answers to the question concerning juvenile offenders who turn 18 while still in prison or confinement. A number of States do not have provisions stating that persons in a juvenile facility, when they turn 18, are to be transferred out of that facility. For example, Colombia’s response to the questionnaire sent out to compile data for this report was that the institutions do not formally separate juvenile offenders from those who have attained their majority. From the information received, the Commission also observes that juvenile detention facilities in Central America are still housing persons who have already turned 18; they represent 18.8% of the population in the juvenile justice system.[309]
429. Other States have set up a separate system specifically for those who attain their majority while serving their custodial sentence. In Costa Rica, for example, persons who attain their majority while serving a custodial sentence do not continue to be held alongside minors, but are not taken to adult facilities either; instead, they are transferred to a special system. According to what Costa Rica reported in answer to the Commission’s questionnaire, persons who attain their majority are transferred to the Zurquí Juvenile Training Center and the Young Adult Center. Some girls who attain their majority are transferred to the Centro Buen Pastor, which shelters the older adult female population, but also has separate facilities for “young adults” sentenced under the Juvenile Criminal Justice Act.
430. The Commission has learned that in Argentina, Article 6 of the law provides that “custodial sentences that judges order in the case of minors are to be served in specialized institutions. If a minor attains his or her majority while in a special institution for minors, he or she shall serve the rest of his or her sentence in establishments for adults.”[310] Despite this legislation, the Commission learned that in practice, juvenile offenders between 16 and 18 years of age who are serving a sentence of two years or longer are transferred to an institution for these specific age groups. If the child is deemed not to have been rehabilitated in the time spent at that institution, he or she will then go back to juvenile court where he or she will be prosecuted for the same violation of criminal law that he or she committed as a minor; this time the sentence imposed will be the sentence that an adult convicted of the same crime would receive. As a result, although Argentina does not transfer the person to adult court, the impact can be the same as if he or she were an adult.
431. Furthermore, in some States, provision is made for the possibility that children might be sent to adult prisons. According to the information the Commission received, in Canada, children who were sentenced as adults serve their sentences in juvenile institutions until they turn 18, at which point they are transferred to adult institutions; furthermore, the sentencing court may, under certain circumstances, order that they be sent to an adult facility even before they turn 18.[311] The situation is particularly serious in those States that have very high maximum periods of incarceration, or that allow sentences of life imprisonment; in those States, children who attain their majority while serving a custodial sentence in a juvenile facility are transferred to adult institutions.
432. In the Commission’s view, sentences punish minors as if they were adults, even when the sentence is ordered by the juvenile court; constitute violations of the minors’ rights and of the principles of the juvenile justice system. The Commission censures the practice of sending minors to adult detention facilities, regardless of the circumstances, as doing so puts the minors in serious peril and at grave risk of subsequent violations of their rights.
433. The Commission considers that when persons incarcerated as children turn 18 while serving their sentence, a review hearing must be held to determine whether the person in question should remain incarcerated or be released, or whether the remaining portion of the custodial sentence can be commuted and replaced with a non-custodial measure. The Commission is recommending that the hearing evaluate the possibility of putting a young person who has attained his or her majority in a special program, to ensure that his or her rights are not violated by transferring him or her to an adult facility, and also to ensure that the rights of the other children are not imperiled by leaving the young adult in the juvenile facility.
d. The Situation of Children and Adolescents with Ties to Maras and Gangs
434. The Commission has learned that in some States where maras or gangs are a problem, the juvenile detention centers classify these children not on the basis of either age or sex, but on the basis of whether they belong to gangs active in their territory. In other words, children deprived of liberty are housed in separate facilities or cellblocks, according to the gang to which they belong, or with which they are alleged to be affiliated. According to what the Commission has been told, while this segregation has not eliminated violence in the detention facilities, it has succeeded in reducing the violence considerably.
435. Regarding these practices, the Commission believes that the States must strike a proper balance between protecting the welfare of children deprived of their liberty and developing a classification system that meets the standards addressed in this section. The fact that gangs or maras may have an impact on how a juvenile detention facility is run, should not mean that classification standards should be ignored. Furthermore, the state’s protection of the welfare of children in its custody must extend to all children, irrespective of whether or not they belong to a certain group.
436. The Commission is troubled by the fact that the detention conditions of children who belong to gangs or maras, tend to be worse than those of the other inmates. For example, in its report on its visit to Honduras, the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment found that “in general, certain groups of individuals were segregated from others, such as the members of the maras and those considered to be '“extremely dangerous”'. Many get no direct sun in their living area, which amounts to discrimination against them in relation to other prisoners, and are denied the conditions for a decent life, without any legal basis for such treatment."[312]
3. The Human Rights of Children and Adolescents Deprived of Their Liberty
437. Depriving a child of his or her liberty for a violation of the law does not give the state the authority to curtail other rights of that child. Furthermore, when States order custodial measures for children, they become the guarantors of those children’s rights, and accordingly must take positive measures to ensure that the children in their custody effectively enjoy all their rights. The Commission has received information concerning violations of the human rights of children deprived of liberty. In this section, the Commission will address the specific obligations incumbent upon the States to guarantee the human rights of children and adolescents deprived of their liberty.
438. The Commission must emphasize that any deprivation of liberty must be done in such a way as to guarantee physical integrity and unconditional respect for the human rights of the detained children.[313] The Inter-American Court has held that deprivation of liberty sometimes invariably leads to the infringement of human rights other than the right to personal liberty.[314] The right to personal privacy and the right to family privacy may be restricted, for example. However, the Court has held that this restriction of rights, which is a consequence or collateral effect of the deprivation of liberty, must be strictly limited,[315] as any restriction of a human right is justifiable under international law only when it pursues a legitimate purpose and is adequate, necessary and proportionate, i.e. necessary in a democratic society.[316]
439. At the same time, the Court has been clear in emphasizing that other rights –such as the right to life, the right to physical integrity, freedom of religion and the right to due process- cannot be restricted under any circumstances during the deprivation of liberty, and any such restriction is prohibited by international law. According to the Court, persons deprived of their liberty are entitled to have those rights respected and ensured just as those who are not so deprived.[317]
440. Furthermore, the Court has consistently stated that the State is the guarantor of the rights of persons held in its custody inasmuch as prison authorities exercise full control over those in their custody.[318] This role of the State as guarantor is all the more important when the person in its custody is a minor. As the Court held, this means that the State must perform its role as guarantor by taking all the precautions in view of the natural vulnerability, lack of knowledge and defenseless naturally exhibited by minors in such circumstances.[319]
441. When the person deprived of liberty is a minor under the age of 18, the Inter-American Court has held that the State has an added obligation to provide the special protection to which minors are entitled by virtue of their age:
... to protect a child’s life, the State must be particularly attentive to that child’s living conditions while deprived of his or her liberty, as the child’s detention or imprisonment does not deny the child his or her right to life or restrict that right[320].
... when the person the State deprives of his or her liberty is a child ... it has the same obligations it has regarding to any person, yet compounded by the added obligation established in Article 19 of the American Convention. On the one hand, it must be all the more diligent and responsible in its role as guarantor and must take special measures based on the principle of the best interests of the child.[321].
442. Concerning the State’s role as guarantor, the Commission has observed that:
... the State, by depriving a person of his liberty, places itself in the unique position of guarantor of his right to life and to physical integrity. When it detains an individual, the State introduces that individual into a "total institution"--such as a prison--where the various aspects of his life are subject to an established regimen; where the prisoner is removed from his natural and social milieu; where the established regimen is one of absolute control, a loss of privacy, limitation of living space and, above all, a radical decline in the individual's means of defending himself. All this means that the act of imprisonment carries with it a specific and material commitment to protect the prisoner's human dignity so long as that individual is in the custody of the State, which includes protecting him from possible circumstances that could imperil his life, health and personal integrity, among other rights.[322]
443. In the particular case of children subjected to custodial measures, the IACHR has also indicated that when the time comes to apply these measures, the best interests of the child have to be considered, which means affording children deprived of their liberty the special measures required by the added rights that they, as children, enjoy that others do not.[323]
444. Article 37(c) of the Convention on the Rights of the Child provides that States shall ensure that:
Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age ....
445. The Tokyo Rules provide that in the implementation of non-custodial measures, the offender's rights shall not be restricted further than was authorized by the competent authority that rendered the original decision.[324]
446. Rule 26(2) of the Beijing Rules provides that:
Juveniles in institutions shall receive care, protection and all necessary assistance-social, educational, vocational, psychological, medical and physical-that they may require because of their age, sex, and personality and in the interest of their wholesome development.
447. The Inter-American Court has interpreted the obligations that the States have by virtue of Articles 6 and 27 of the Convention on the Rights of the Child, under which the right to life includes the State’s obligation to ensure “to the maximum extent possible the survival and development of the child.” The Committee on the Rights of the Child has interpreted the word “development” in its broadest sense, as a holistic concept embracing the child’s physical, mental, spiritual, moral, psychological and social development.[325] The Court therefore held that in the case of children deprived of liberty, States have an obligation to, inter alia, provide them with health care and education, so as to ensure that their detention will not destroy their life plans.[326]
448. Rule 13 of the Havana Rules provides that:
Juveniles deprived of their liberty shall not for any reason related to their status be denied the civil, economic, political, social or cultural rights to which they are entitled under national or international law, and which are compatible with the deprivation of liberty.
449. The Commission again asserts that States must ensure the human rights of all children deprived of their liberty. States also have a duty to conduct activities that serve to neutralize or reduce the de-socializing effects of the deprivation of liberty. Any punitive measures must, to the greatest extent possible, avert violations of rights other than the right to freedom of movement, such as the right to education and health, and serve to strengthen family bonds and community ties.[327]
450. One important preventive measure is to ensure that, when they enter a detention facility, children are informed of their rights and receive all information concerning the rules and regulations at the facility.[328] The Commission commends the practice in Venezuela where the internal rules of detention facilities even make provision for assemblies, held to give the juvenile inmates an opportunity to express their opinion concerning the operation of the centers. The State informed the Commission that these assemblies are attended by the juvenile inmates, the technical and executive staff, a sentence enforcement officer, a public defender, a representative of the State Council on the Rights of Children and Adolescents, and a representative of the Ombudsman’s Office, to guarantee and restore any violated rights. In Brazil, too, the State reported that each center is to draw up its own internal rules, with staff and children alike involved in the process.
451. In the final analysis, States must ensure that the law does not needlessly restrict the rights of children deprived of their liberty; but they must also ensure that the law is properly enforced, to which end they are to establish programs to make certain that the children are able to effectively exercise their rights while being subject to some custodial measure. Furthermore, States must ensure that the resources needed for those rights to be exercised in practice are available. Lack of resources is no excuse for violation of children’s human rights in the juvenile justice system.
452. Nevertheless, the information the Commission has received indicates that children deprived of liberty in the Americas have been, and continue to be, the victims of torture, sexual abuse, humiliation and unacceptable disciplinary measures such as solitary confinement, corporal punishment and other forms of violence. Children deprived of liberty have great difficulty exercising their rights, especially their rights to an education, training, recreation and health. The Commission will now examine some of the rights that are most frequently violated when children are deprived of their liberty.
a. The Right to Life and the Right to Physical Integrity
453. In those cases where States find it necessary, as a last resort, to subject a child to a sentence of incarceration or other custodial measure, they have an obligation to guarantee that child’s right to live in conditions that are compatible with his or her dignity, and to fulfill its obligation to guarantee the child’s right to life and right to physical integrity.[329]
454. The Court has consistently held that the right to life is a fundamental right within the American Convention, as it is the condition sine qua non for the enjoyment of all other rights.[330] For its part, the right to physical integrity is so important that the American Convention protects it specifically by, inter alia, the prohibition of torture and cruel, inhuman and degrading treatment, and by stipulating that it cannot be suspended in states of emergency.[331]
455. The Court has also clarified that the right to life and the right to physical integrity require not only that the State respect them (a negative obligation), but also that the State adopt all appropriate measures to ensure their enjoyment (a positive obligation), in furtherance of the general obligation that the State undertook in Article 1(1) of the Convention.[332]
456. In the case of children deprived of their liberty, States also undertake the same obligations they have with respect to any person; they also have the added obligation established in Article 19 of the American Convention and Article VII of the American Declaration. Where children are involved, therefore, the State must undertake its role as guarantor with greater care and responsibility, and must undertake special measures in the light of the principle of the child’s best interests.[333]
457. Thus, to protect a child’s life, the State must be particularly attentive to that child’s circumstances while deprived of his or her liberty, so that the child’s detention or imprisonment does not deny the child his or her right to life, or in any way restrict that right.[334] As for the right to physical integrity, because the prohibition of torture and cruel, inhuman or degrading treatment or punishment is now part of the international jus cogens,[335] States must take into account a child’s status as such and apply the highest standard when determining whether the treatment to which a detained child has been subjected constitutes cruel, inhuman or degrading treatment or punishment.[336]
458. The Commission has observed the following in this regard:
... in the case of children the highest standard must be applied in determining the degree of suffering, taking into account factors such as age, sex, the effect of the tension and fear experienced, the status of the victim’s health, and his maturity, for instance[337].
459. The Court, too, has held that:
... the fact that the alleged victims were children requires applying the highest standard in determining the seriousness of actions that violate their right to physical integrity.[338]
460. Respect for the rights to life and to physical integrity in the case of children means that all forms of violence within the juvenile justice system must be prohibited. This applies to all phases of the process, from the first contact with the police authorities to the carrying out of the sentence.
461. Here, the Court has held that:
... the States Party to the American Convention are under the obligation, pursuant to Articles 19 (Rights of the Child) and 17 (Rights of the Family), in combination with Article 1(1) of this Convention, to adopt all positive measures required to ensure protection of children against mistreatment, whether in their relations with public authorities, or in relations among individuals or with non-governmental entities[339].
462. Furthermore, as the Commission has observed on previous occasions, the State’s duty to protect is not fulfilled merely by preventing violence on the part of its agents; instead, it must also prevent any form of violence from third parties. As the IACHR stated:
The obligation that follows from being the guarantor of these rights means that agents of the State must not only refrain from engaging in acts that could harm the life and physical integrity of the prisoner, but must also endeavor, by all means at their disposal, to ensure that the prisoner is maintained in such a way that he continues to enjoy his fundamental rights, especially his right to life and to physical integrity. Thus, the State has a specific obligation to protect prisoners from attacks by third parties, including other inmates[340].
463. The Court, too, has held that:
... the State’s obligation to protect all persons subject to its jurisdiction includes the duty to control the action of private third parties, an obligation enforceable as against all[341].
464. On many occasions, the Commission and the Court have been called upon to examine situations involving the mistreatment of children deprived of their liberty and the deplorable conditions to which they were subjected.[342] No state in the hemisphere is immune to the problem. And in spite of repeated recommendations from the Commission and the Court, the information on the situation within the region is not encouraging.
465. By way of example, the IACHR observes that in Guatemala, the United Nations Human Rights Council’s Special Rapporteur on extrajudicial, summary or arbitrary executions documented a situation in which the authorities had allegedly failed to intervene to prevent acts of violence, and reportedly never properly investigated what had happened:
On 22 June 2006, it was again the turn of the Mara 18 detainees to kill detainees of the rival gang the Mara Salvatrucha held at Etapa II…The report found that some wardens contributed to arming the killers and enabling them to enter the cells of the victims, while the prison authorities and the police failed to intervene to stop the killing…The report of the Policía Nacional Civil notes that it appears from the video that a warden had unlocked the doors to the Mara Salvatrucha section…the gang members shot and attacked their victims with stones, severing limbs and crushing skulls. Forces of the Policía Nacional Civil entered the detention facility when the violence started, but inexplicably withdrew after 2 minutes and returned only 41 minutes later. When investigators of the Ministerio Público recorded the crime scene, they did not inspect the dormitories in which the attack had obviously been prepared. They also left behind skull fragments, stones used as weapons and ammunition shells.[343].
466. In Honduras, incarcerated children and adolescents who are members of maras also endure deplorable conditions, as the expert in the case of Servellón García et al. v. Honduras testified before the Inter-American Court of Human Rights:
Conditions at the juvenile detention centers are no better than the conditions described in the adult prisons. The children and adolescents, presumed members of maras, live in cells with no ventilation, no bathrooms and tied by the feet and hands, forced to relieve themselves in the cells. These and other factors indicate that members of maras or gangs continue to be segregated from the rest of the population in adult prisons and in juvenile detention centers.
A palpable example of the situation prevailing in the detention centers is the “Renaciendo” Center. In late 2005, the Office of the Special Prosecutor for Human Rights brought three charges against eleven administrative officials and police personnel, accusing them of criminal abuse and torture of juvenile inmates; on November 4, 2005, the Secretariat of Public Health, through the Metropolitan Sanitation Region, issued an opinion in which it recommended that the facility be shut down immediately because of the unhealthy conditions in the units housing convicted inmates, those housing children in preventive detention and those housing the inmates belonging to maras 18 and 13 were unsanitary.[344]
467. Finally, the Commission takes note of the concern expressed by the United Nations Committee on the Rights of the Child in 2010, in connection with allegations of torture and abuse of children by law enforcement officers, in the context of the fight against “maras”.[345] According to the information supplied to the Committee on the Rights of the Child in 2010, in El Salvador, maras appeared to have over 10,000 members, mainly children between the ages of 16 and 18. The Committee expressed concern at the lack of a juvenile justice system that met the standards of the Convention; the repressive approach that the State had used thus far to deal with juvenile delinquency, notably against “maras”, and the resulting increase in the recourse to incarceration in the case of children; the serious lack of alternatives to incarceration; the fact that law enforcement officials, judges and prosecutors were not receiving systematic training about the Convention and juvenile justice standards; the limited access that children deprived of their liberty had to education; and the information reporting that at least five adolescents had died in 2009 in rehabilitation centers where children were deprived of their liberty.[346]
468. In this report, the Commission is again urging the most scrupulous respect for the rights to life and to physical integrity in the case of children deprived of liberty, in keeping with the principles and standards set forth in this chapter.
469. Because children are still growing, the right to food that is adequate for health and sufficient for strength is of fundamental importance, and States that have juvenile offenders in their custody have an obligation to guarantee this right.
470. Rule 20 of the United Nations Standard Minimum Rules for the Treatment of Prisoners provides the following with respect to the right to adequate and sufficient food:
... Every prisoner shall be provided by the administration…with food of nutritional value adequate for health and strength, of wholesome quality and well prepared and served.
471. In the particular case of children deprived of their liberty and their right to adequate and sufficient food, Rule 37 of the Havana Rules provides the following:
Every detention facility shall ensure that every juvenile receives food that is suitably prepared and presented at normal meal times and of a quality and quantity to satisfy the standards of dietetics, hygiene and health and, as far as possible, religious and cultural requirements. Clean drinking water should be available to every juvenile at any time.
472. Even so, the information the Commission received indicates that the States in the region are not adequately ensuring this right. By way of example, reports on prison conditions in Brazil say that the food is neither adequate nor sufficient, and prisoners do not eat on a regular basis.[347] The Commission has also received information that the quality of the food at the juvenile detention facilities in Nicaragua is poor.[348] The Commission has been told that children incarcerated in Uruguay are fed spoiled food as a form of punishment.[349] A recent report on the situation in Central America states that some juvenile detention facilities have no drinking water.[350] UNICEF reported that one facility in Panama had no drinking water; instead, an improvised system was used to bring water from the river so that the children could bathe and clean their cells; staff at the center brought in barrels of drinking water every two days, which was the only source of drinking water for general use there.[351]
473. The Commission is urging States to ensure that children deprived of their liberty receive a nutritious diet that takes into account their age, health, physical condition, religion and culture. The meals must be prepared and served in a hygienic way; at least three meals a day should be provided; the intervals between meals should be reasonable.[352]
c. The Right to Physical and Mental Health
474. The provisions contained in the international instruments on medical treatment for physical and mental health for adult prisoners undoubtedly also apply to children deprived of their liberty. On the subject of the right of detained persons to the highest possible level of physical and social well-being, the Commission has observed that:
Persons deprived of liberty shall have the right to health, understood to mean the enjoyment of the highest possible level of physical, mental, and social well-being, including amongst other aspects, adequate medical, psychiatric, and dental care; permanent availability of suitable and impartial medical personnel; access to free and appropriate treatment and medication; implementation of programs for health education and promotion, immunization, prevention and treatment of infectious, endemic, and other diseases; and special measures to meet the particular health needs of persons deprived of liberty belonging to vulnerable or high risk groups, such as: the elderly, women, children, persons with disabilities, people living with HIV-AIDS, tuberculosis, and persons with terminal diseases. Treatment shall be based on scientific principles and apply the best practices.
The provision of health services shall, in all circumstances, respect the following principles: medical confidentiality; patient autonomy; and informed consent to medical treatment in the physician-patient relationship[353].
475. Rule 49 of the Havana Rules provides that:
Every juvenile shall receive adequate medical care, both preventive and remedial, including dental, ophthalmological and mental health care, as well as pharmaceutical products and special diets as medically indicated. All such medical care should, where possible, be provided to detained juveniles through the appropriate health facilities and services of the community in which the detention facility is located, in order to prevent stigmatization of the juvenile and promote self-respect and integration into the community.
476. Rule 51 of the Havana Rules provides that:
The medical services provided to juveniles should seek to detect and should treat any physical or mental illness, substance abuse or other condition that may hinder the integration of the juvenile into society. Every detention facility for juveniles should have immediate access to adequate medical facilities and equipment appropriate to the number and requirements of its residents and staff trained in preventive health care and the handling of medical emergencies. Every juvenile who is ill, who complains of illness or who demonstrates symptoms of physical or mental difficulties, should be examined promptly by a medical officer.
477. Rule 54 of the Havana Rules is also of the utmost importance, and reads as follows:
Juvenile detention facilities should adopt specialized drug abuse prevention and rehabilitation programs administered by qualified personnel. These programs should be adapted to the age, sex and other requirements of the juveniles concerned, and detoxification facilities and services staffed by trained personnel should be available to drug- or alcohol-dependent juveniles
478. As the Inter-American Court has held, States must:
... pay special attention to the needs and the rights of the alleged victims owing to their condition as girls, as females belonging to a vulnerable group.[354]
479. The Commission has been very clear in this regard and has observed that girls deprived of their liberty must receive specialized medical care that adequately addresses their needs in the area of reproductive health:
In particular, they shall have access to gynecological and pediatric care, before, during, and after giving birth, which shall not take place, as far as possible, inside the place of deprivation of liberty, but at hospitals or appropriate institutions. If a child is born in a place of deprivation of liberty, this fact shall not be mentioned in the birth certificate.
In women’s or girls’ institutions there shall be special accommodation, as well as adequate personnel and resources for pre-natal and post-natal care and treatment of women and girls. Where children of parents deprived of their liberty are allowed to remain in the place of deprivation of liberty, the necessary provisions shall be made for a nursery staffed by qualified persons, and with the appropriate educational, pediatric, and nutritional services, in order to protect the best interest of the child[355].
480. The Commission must emphasize the standards cited above and remind the States that they have an obligation to ensure that children deprived of their liberty have access to health programs –including programs in preventive health and hygiene as well as special programs in sexual and reproductive health, oral health, prevention of HIV-AIDS, mental health, treatment for drug dependent children, special programs to prevent suicide, and others.
481. The Court, for its part, has also stated that health care must be the proper health care that every person deprived of their liberty requires; there should be regular medical supervision to ensure the children’s normal growth and development that is so essential to their future.[356] The Court has also held that “assistance by a physician not related to prison or detention center authorities is an important safeguard against torture and physical or mental ill-treatment of inmates”[357].
482. In their responses to the questionnaire that the Commission sent to the States, the latter mentioned a number of means by which children in the juvenile justice system have access to health services. In most cases, they said there were no specialized health care or infirmary services, and that they had to rely on the government agencies that provide those services. In a number of cases, however, States answering the questionnaire did say that medical or nursing staff visited the juvenile facilities on a regular basis, in some cases every week. Little information is available about conditions of detention of juvenile offenders housed in mental health institutions. In any case, the available information reveals coverage problems, as well as the lack of specific procedures to provide treatment for those who require it.
483. Argentina, for example, reported that all closed-system institutions have an infirmary –most of which have a section with beds for those who have to spend the night there - dental services and medical consulting rooms; children requiring specialized health care services are treated at the appropriate public hospital, away from the juvenile facility. Honduras reported that in some institutions like the Renaciendo Complex, a doctor and nurse are on duty and psychological counseling is available. There are monthly medical examinations.
484. From the information it received, the Commission observes that while in the majority of the States in the region, there is officially an infirmary at every juvenile detention facility, as a general rule, however, these infirmaries are able to provide basic, out-patient services, but not the more complex procedures. The infirmaries also have little in the way of medications and specialized personnel.
485. Some States, like Venezuela, expressly mentioned the fact that they do not have sufficient medical personnel or the equipment and materials needed to meet the demand. Most juvenile detention facilities in Venezuela do not have on-site medical staff, so that if children need medical care they are taken to hospitals, to establishments run by the Misión Barrio Adentro and/or to comprehensive care facilities. Similarly, in Bolivia, the Ombudsman mentioned how difficult it is to guarantee this right, due to a lack of, inter alia, human resources, equipment, medications. According to the information received, sufficient qualified medical personnel able to work either permanently at the institutions for juvenile offenders or to visit them on a reasonably regular basis are simply not available.[358] The IACHR was told that at some centers in El Salvador, Guatemala, Nicaragua and Honduras, the children are not given medications even when they have prescriptions from doctors; as a result, family members are asked to provide the medications.[359]
486. The Commission is concerned by the fact that based on the reports received, the right to heath of children deprived of their liberty is a critical state in some countries of the region. During the visits made in preparation for this report, the Commission learned of very disturbing situations. For example, during the visit to Guyana, the Commission was told that children are often admitted to the juvenile facilities with scabies or fungal infections, caught during the time spent in police holding facilities. They are also frequently suffering from anemia when they arrive. During its visit to Suriname, the Commission was told that boys put pellets in their penises using any sharp item they could get their hands on, all in order to bring on an infection. According to reports, this is a common practice in adult prisons, which illustrates to the Commission how incarcerating children alongside adults can have harmful effects.
487. The Commission has also received information to the effect that not every State has a strategy for preventing or controlling sexually transmitted diseases. For example, at the Antuhué center in Chile, an unconscious child was urgently transported to the hospital in Rancagua on May 14, 2005; he had been complaining of abdominal pains for a week and staff at the facility had diagnosed him as having an inguinal hernia, and did not consider it was important. After being operated on at the hospital, it was discovered that the child had a “virulent infection” caused by gonorrhea, a venereal disease.[360] At the same time, the Commission takes a favorable view of the information that Guyana supplied on the questionnaire to the effect that children deprived of their liberty are tested for HIV and tuberculosis. According to what the State reported, if a child is HIV positive, he or she is provided with antiretroviral drugs at no cost and given counseling in a community hospital.
488. The Commission observes that in most States, access to health services depends on the coordination between the juvenile detention facilities and the public health services. In Colombia, for example, the national health agencies are tasked with providing medical and hospital care at the levels of promotion, prevention, intervention and rehabilitation of adolescents in conflict with the law. This includes the mental health units that conduct programs to treat and rehabilitate children addicted to narcotic drugs, and to handle problems such as physical, mental and sensory disabilities.
489. The question of special programs for addicted children varies from one State to the next. In some cases programs of this kind do exist. However the information compiled suggests problems in terms of the accessibility and availability of places to treat addicted children. In some countries, like Venezuela, the information made available to the Commission in response to the questionnaire indicates that there are no permanent programs for drug abuse prevention and treatment of children deprived of their liberty. In the Eastern Caribbean, the jail in Saint Vincent and the Grenadines is the only one that has a drug treatment program. Elsewhere, the information the Commission received suggests that drug treatment programs are not available for children deprived of their liberty[361] (although there are services outside the institutions, such as the detoxification center in Antigua and the Turning Point Rehabilitation Center in Saint Lucia). In the Western Caribbean, the prison run by the Kolbe Foundation in Belize is the only one in the country that has an in-house drug treatment program.
490. In the Commission’s view, the lack of an adequate service to provide drug treatment constitutes a failure to comply with the State’s obligation to protect the rights of all children within its jurisdiction and, in this case, in its custody as well.
491. In order to guarantee the right to health in the case of detained children, the facilities in which they are housed must ensure access to properly equipped medical and health facilities, staffed with properly trained and independent medical personnel. The juvenile institutions must keep records of all medical treatment and medications administered to children deprived of their liberty.[362] Institutions for juvenile offenders must have mental health services so that they can properly address the children’s needs, especially given the fact that the inhumane and degrading detention conditions, compounded by the violence typical of such facilities, will invariably take a toll on a child’s mental health and adversely affect his or her mental growth and development and physical and mental well-being.[363] States must pay particular attention to the sexual and reproductive health of juvenile offenders deprived of their liberty, and to the specific needs of those who require drug treatment programs.
492. The objectives of juvenile justice necessitate educational programs, including formal schooling, vocational and job training, recreational activities and sports.[364] The Court has elaborated upon this point where it stated that:
... Regarding to children deprived of their liberty and thus in the custody of the State, the latter’s obligations include that of providing them with health care and education, so as to ensure to them that their detention will not destroy their life plans[365].
493. All children deprived of their liberty, without distinction, must have access to educational programs. Within the juvenile justice system, the treatment and education of children must be geared toward promoting respect for human rights[366] and take cultural diversity into account.[367] Furthermore, the education and vocational training provided at institutions for juvenile offenders must be recognized by the broader educational system and operate in close coordination with it.
494. The Court has addressed the issue of children’s right to education in the following way:
It should be highlighted that the right to education, which contributes to the possibility of enjoying a dignified life and to prevent unfavorable situations for the minor and for society itself, stands out among the special measures of protection for children and among the rights recognized for them in Article 19 of the American Convention[368].
495. The Court also held that the State’s failure to fulfill its obligation to provide programs of this type has all the more serious consequences when the children deprived of their liberty are from marginal sectors of society, because the failure to provide an adequate education limits their chances of actually rejoining society and carrying forward their life plans.[369]
496. However, the United Nations Special Rapporteur on the Right to Education has observed that:
The juvenile justice system has been unable to provide sufficient quantity and quality of training and education to the children detained. Even though there have been improvements in some countries, for the most part they received inadequate education, ill-suited to their needs[370].
497. The Commission concurs with the UN Rapporteur that guaranteeing access to various types of educational and training programs also means addressing the particular needs of specific population groups, while respecting ethnic, racial and linguistic diversity. For example, in the case of indigenous children, educational programs must respect their cultural uses, practices and customs. Programs must also be respectful of these children’s language, which means having special staff or competent interpreters on hand and providing them with adequate written materials. Nevertheless, in answering the questionnaire, only one Member State reported that specific programs are in place for indigenous children deprived of their liberty.
498. Education and professional training programs must also respect the equality of men and women. Nevertheless, the United Nations Special Rapporteur on the right to education observed that:
... in Latin America, recent research showed quite clearly that, in many States in the region, courses that are offered to women in detention are mostly related to issues traditionally linked to women, such as sewing, kitchen duties, beauty and handicrafts[371].
499. That information illustrates the discrimination that attends some programs conducted within the juvenile justice system.
500. The Commission appreciates the information concerning educational best practices within the region. Costa Rica, for example, told the Commission that a formal education is mandatory for children deprived of their liberty; thus, juvenile offenders receive the same programs that the rest of the country’s student population receives. Under an agreement with the Ministry of Public Education, a school exists inside the walls of the detention center and offers all grades up to the secondary level.
501. The information received in connection with other States is less encouraging. For example, while education is mandatory in Guyana up to 16 years of age, children over the age of 14 in a juvenile detention facility attend only one day of school a week; on the other days of the week they are in vocational training. This is a pattern that repeats itself in most States of the region, where vocational training for children deprived of their liberty takes precedence over an academic education.
502. Overall, the answers that the States gave to the questionnaire the Commission sent out to compile information for this report gave little information about detained children’s access to the right to education. The United Nations Rapporteur on the right to education has observed the following about the dearth of available information:
If evidence of participation rates of detained children in education is rare, evidence of the quality of educational provision is even scarcer. However, there are welcome signs that some States are addressing the issue. Chile, for instance, has recently introduced reforms to its juvenile justice system with the aim of complying more fully with international and domestic legal standards relevant to children’s education. Similarly, Colombia and Argentina are modernizing their juvenile systems with that aim[372].
503. During the Commission’s visits to compile information for this report, it observed that in the Caribbean, training schools have been set up for children that generally involve some corrective element. However, the classrooms are generally a combination of children of various ages and various levels of schooling, which makes it difficult for teachers to plan and give classes. According to what the Commission was told, some teachers are not trained educators and some are or have been inmates. At some centers, the children are allowed to sit for the Caribbean elementary and secondary tests, but, in most cases, the programs are not recognized by the respective Ministry of Education.
504. The Commission also noted that at Guyana’s New Opportunities Corp., Belize’s Wagner Boys Facility and Suriname’s Santo Boma Prison, a very small percentage of the children attend school in the community. Although this is a good practice, it is unfortunately not widespread. During its visit, the Commission was told that out of a total of 195 children in Guyana’s prison, only eight attend community schools.
505. The situation is even more acute in the case of children incarcerated in adult prisons, where educational and vocational training opportunities are more limited. From the information the Commission compiled, while at some adult prisons, like the one in Guyana, children have the opportunity to participate in educational and training programs with young adults under the age of 25, the number of prisoners is so high that not all children have access to these programs and not all prisons have programs specifically for young adults. In most of the Caribbean countries, adult prisons do not offer educational and training programs for the children deprived of their liberty there. Generally, these children are not accepted at the community schools because of the stigma of being deprived of their liberty. As a result, these children are being denied their right to an education.[373]
506. The rights of children alleged to be members of maras or gangs also suffer when such children are deprived of their liberty. The Commission has also received information to the effect that the rights of children presumed to be members of a gang are more severely restricted. For example, the Commission was informed that in Honduras, these children are only allowed into the prison yard once a week and their visits are restricted. Children alleged to be gang members are not permitted to attend classes in juvenile detention facilities, which means they are being denied their right to an education.[374]
507. The information compiled by the Commission during its hearings also reveals that in States like Argentina, Brazil, Paraguay and Uruguay, the failure to put into practice educational and vocational training programs means that the children remain idle in the detention facilities, with no educational activities, either formal or informal.
508. In some States like Chile, the information compiled shows that although training activities do exist, they are basic and mainly a distraction, and do little to prepare the child for a job or to continue his or her studies.[375]
509. Based on the answers to the Commission’s questionnaire, in a significant number of countries the training programs are provided by subcontractors retained by the authorities in charge. As for supervision of the subcontracts, generally speaking the States have administrative-financial controls, but rarely check the quality of the services, or whether the persons who participate in these services are actually performing. In Colombia, for example, the State reported that the Colombian Family Welfare Institute has an oversight system to ensure that the services retained by the Institute are being provided by social organizations whose procedures are geared toward guaranteeing and/or restoring children’s rights. The Commission was also told that in Venezuela, for example, the State does not subcontract any type of services; however, in the case of some centers it enters into agreements with other governmental and nongovernmental organizations to have socio-productive, cultural, sports-related and educational activities conducted.
510. The Commission recalls that one characteristic of a State’s intervention is the socio-educational content of the custodial measures. This means the obligation of States to take a holistic approach to the problem of juvenile offenders, which should combine the punitive function (holding the child accountable for his or her conduct) and the socio-educational function (aimed at reintegrating the child into his or her family and community). In the Commission’s view, the role of the family, nongovernmental organizations and private educational institutions in conducting educational and vocational training programs for children deprived of their liberty should be strengthened. At the same time, however, States cannot neglect the formal education that all children deprived of their liberty must receive to ensure that their studies are not abandoned as a result of the penalty they are expected to pay.
511. The right to education is closely related to detained children’s right to recreation. Because they are still growing and maturing, children deprived of their liberty must have access to recreation programs. By the same token, these programs must be designed to ensure contact between the children deprived of their liberty and their families and communities. Juvenile detention facilities should arrange programs with the community so that the children subject to the sanction of imprisonment are able to socialize, engage in play, relax, play sports and participate in health and education programs, including beyond the walls of the juvenile facility. Participation in these programs should increase as the child gets closer to his or her release date, as a way of facilitating his or her re-assimilation into the family and community.
512. The information the Commission received indicates that the vast majority of juvenile detention centers in the member States have space for open-air recreation, even though that space is sometimes limited and not designed in a manner that would encourage the children to make use of it. At the same time, however, in many countries of the region there are no programs that enable children deprived of their liberty to associate with their families and communities. In some cases, these programs do not even exist inside the walls of the institution, because the necessary infrastructure is lacking.
513. The information received by the Commission indicates that some facilities, such as Costa Rica’s Zurquí Juvenile Criminal Center and the New Opportunities Corp. in Guyana have a soccer field and a covered arena for cultural and sports-related activities. The Guyana facility also allows children to join sports teams and musical groups in the community and even allows them to travel with their team and music group to participate in sporting events and shows.
514. However, many other facilities across the hemisphere view their role as strictly custodial in nature. At such facilities, no space is allotted for recreational activities. In fact, the Commission found that some authorities even believe that recreational activities pose a safety and security risk, and therefore prohibit them. For example, during its visits, the Commission learned that the Stoney Hill Remand Center in Jamaica has no recreation space outdoors; only those children who exhibit good behavior are allowed to occasionally go outside for some activity. The other children are inside all the time; they eat and engage in activities in a large room that at one time was open to the air but that now has a roof. The staff at the institution told the IACHR that they are hoping that the children will be able to play cricket in that room once the lights have been secured. During the Commission’s visit, however, it observed that no sports activities could be played there except for morning exercises and table tennis.
515. During another visit, the Commission learned that the children deprived of their liberty at the Youth Training Center in Trinidad and Tobago take active part in sports for an hour and a half each day. The children found guilty of violating criminal laws have additional sports, educational and recreational activities; however, those in preventive detention are not allowed to participate in these additional activities. The Commission is concerned by the perception in the region that children in preventive detention pose an even greater flight risk, with the result that their right to recreation tends to be restricted. For example, during its visits, the Commission learned that at Trinidad and Tobago’s Youth Training Center, children in preventive detention have to be handcuffed when they leave the locked areas, even though the external perimeter of the facility is fortified; while children who have been convicted are able to go anywhere in the center with their hands free.
516. The Commission has also received information to the effect that the rights of children presumed to be members of a gang are even more severely restricted. For example, the Commission learned that in Honduras, suspected gang members can go outside only once a week, and have their visits restricted.[376]
517. Under a juvenile justice system that is respectful of human rights, the purposes that penalties are to serve require that there be programs to enable children deprived of their liberty to exercise their right to recreation. These programs are to facilitate their re-assimilation into the community.
4. The Detention Conditions of Children and Adolescents Deprived of their Liberty
518. In order to protect and ensure the right to life and the right to physical integrity of children deprived of their liberty, and in its role as guarantor of those rights, the State has an absolute obligation to provide children deprived of their liberty with the minimum conditions befitting their dignity as human beings, for as long as they are deprived of their liberty in a detention facility.[377] This obligation is not limited to those situations related to violence inside the detention facilities; it also includes all the conditions under which the deprivation of liberty takes place.
519. Under international human rights law, every person deprived of his or her liberty has the right to live in detention conditions compatible with his or her personal dignity, and the State must guarantee to that person the rights to life and to physical integrity.[378] This obligation applies equally with respect to children deprived of their liberty, whom States must provide with the minimum conditions befitting their dignity so long as they remain in the States’ custody.[379] Given the special measures of protection to which children are entitled under Article 19 of the American Convention and Article VII of the American Declaration, those minimum conditions must offer special care that enables the child to develop his or her life plan.
520. One of the States’ principal obligations with respect to the detention conditions concerns the physical space of the facilities that house juvenile offenders. The physical space of juvenile detention facilities must ensure respect for the dignity and health of the children deprived of their liberty,[380] and must allow development of intervention proposals for assisting those children, and the formulation and execution of individualized teaching plans.
521. The Committee on the Rights of the Child has observed the following on this subject:
Children should be provided with a physical environment and accommodations which are in keeping with the rehabilitative aims of residential placement, and due regard must be given to their needs for privacy, sensory stimuli, opportunities to associate with their peers, and to participate in sports, physical exercise, in arts, and leisure time activities[381].
522. Specifically, the facility in which the child is deprived of his or her liberty must have the proper infrastructure in terms of surface area, ventilation, natural and artificial lighting, drinking water and hygienic facilities and supplies. The children must have easy access to sanitary facilities that are hygienic and private; they must be permitted to bathe or shower daily, at a temperature suited to the climate.[382] Furthermore, the architecture of the detention centers must be suited to the socio-educational goal. It is essential that there be proper space for individual and group work, for study, recreation and sports, adequate conditions for relaxation and family visits, and other conditions. As the Inter-American Commission has observed, States must also make public and periodically update the number of places available in each institution and its real occupancy rate; overcrowding must be prohibited by law.[383]
523. As guarantors, States must also “design and apply a prison policy to prevent crises.”[384] Juvenile detention centers must take all security, evacuation and emergency measures necessary to safeguard the rights of the children deprived of their liberty. For example, these centers have to be outfitted with fire alarms and fire extinguishers in the event of an emergency, and guards must be properly instructed in how to react in situations that could pose a threat to the fundamental rights of the persons in their custody.[385]
524. The foregoing notwithstanding, the information the Commission has received indicates that many juvenile detention facilities are not adequately ventilated, do not have proper lighting, the floors and walls are in a poor condition, the facilities are unhygienic, the food and water is poor, and the necessities for personal hygiene and cleaning are not provided. The Commission has also been told that in some facilities the basic furnishings like beds and mattresses are lacking, children have difficulty making contact with the outside, or getting medical attention or legal advice.
525. For example, a report done by Venezuela’s Ombudsman’s Office indicates that health, hygiene and infrastructure conditions at most socio-educational institutions for children were extremely poor in general.[386] According to the information the State supplied in response to the Commission’s questionnaire, in 2007, that Ombudsman’s Office recorded 4 complaints involving human rights violations at socio-educational centers, 3 related to the condition of the infrastructure, and one alleging mistreatment by a “teacher counselor”.
526. UNICEF has observed that in Chile:
... the infrastructure problems would basically be a lack or inadequate supply of drinking water or hot water and, in general, problems in the wet and dry systems. Cleaning supplies are needed, particularly for the bathrooms and the children’s personal hygiene (Clorox, detergent, toothpaste, soap and shampoo). A number of the bathrooms and dormitories inspected are not in compliance with legal and regulatory standards, either because of structural problems, a lack of space, a lack of hygiene or a lack of even a modicum of privacy.[387]
527. The information the Commission received indicates that in Central America, the jails have children crowded into areas that constitute a clear violation of privacy; at the juvenile detention facilities in El Salvador, Guatemala, Honduras and Nicaragua, anywhere from 10 to 30 children can be found in the same cell. The situation is somewhat better in Costa Rica and Panama where, according to reports received, cells house between two and five children.[388] At the same time, other sources of information, including Panama’s Ombudsman’s Office, have stated that the system is on the verge of collapse, since the overcrowding and deplorable conditions at six of Panama’s centers invite conflict and violence among the children deprived of their liberty there.[389]
528. It is worth noting that in the 2010 recommendations of the Committee on the Rights of the Child in connection with the administration of juvenile justice, the Committee welcomed the fact that in Guatemala, the Comprehensive Child and Adolescent Protection Act (known as the PINA Act) establishes special courts for children in conflict with the law. It was nonetheless concerned at, inter alia, the large number of adolescents in detention centers, and at the information received to the effect that offences against property are the main reason for detention; the serious overcrowding and the lack of care and reintegration programs in the detention centers; the insufficient and undertrained staff in detention centers; and the absence of internal and external controls on the detention centers.[390]
529. In the case of Nicaragua, the Commission has learned that:
Even though almost 10 years have passed since the Child and Adolescent Statute entered into force, the physical conditions of the cells in all prisons nationwide are still such that children deprived of their liberty are not being guaranteed proper conditions of space, ventilation, lighting and hygiene, befitting their dignity as human beings. The visits made by the Special Prosecutor for Jails and the Office of the Special Prosecutor for Children and Adolescents found overcrowding due to lack of space; constant dampness; a foul odor; darkness; a lack of ventilation and a lack of natural and artificial light; a lack of supplies for daily cleaning and disinfection of the area; and a lack of hygienic services that guarantee privacy.[391]
530. The information the Commission has received suggests that because of the overcrowding and deplorable conditions at the juvenile detention facilities, the risks of fire and other catastrophes are much higher. For example, in Armadale, Jamaica, the Girls’ Correctional Center had a fire in May 2009 that claimed the lives of seven girls. That same year, a boy died in a fire at Saint Lucia’s Boys’ Training Center.
531.
The information the
Commission has received indicates that the unhealthy detention
conditions are even worse for some children deprived of their liberty,
... the youth continue to face serious problems. For example, the MS gang does not have access to sanitary installations, forcing them to take care of their bodily functions using plastic bags. The water is not drinkable and has a dark yellow color.[392]
532. During the visits the Commission made to prepare for this report, it learned that overcrowding exists at most of the juvenile detention centers in the region. In Haiti, for example, the Delmas 33 juvenile detention center has a capacity for 72 children, but was housing 174. According to what the Commission was told, the excessive overcrowding also brings added pressure to bear on the staff of the institutions and forces them to resort to more repressive measures in order to maintain control. Moreover, because of the concern over concealed weapons and contraband substances, the doors to the bathrooms have been removed and the shower curtains have been taken down, which means that the children have no privacy.
533. The situation is even worse for children incarcerated in adult prisons. According to the information it gathered during its visits, the prison at Gonaïves, which is an adult facility, has a capacity for 75 inmates, but is currently housing 306, 33 of whom are minors. According to what the Commission was told, these children have to sleep between the adults’ legs because there are not enough mattresses. Some adult prisons where children are being held do not have bathrooms; buckets are used instead.
534. Another issue that must be addressed is that juvenile detention facilities have to be outfitted to accommodate children with special physical needs. The information the Commission received indicates that most juvenile detention centers do not have proper facilities to accommodate children with physical disabilities. In a few rare cases, like Argentina, the Commission was told that special treatment is provided to children with physical disabilities who are deprived of their liberty. However, the IACHR observed that as a rule, these institutions are not prepared to adequately cope with these special needs children, which often means that they are sent elsewhere. The Commission feels strongly that disabled children who are deprived of their liberty must all be housed in the same institutions, ones adapted to their special needs; only when this cannot be done, should they be sent to specialized institutions.
535. The Commission observes that a close corollary of the State’s obligation to provide adequate physical space for children in detention is its obligation to prevent acts of violence. Here, it is worth recalling that:
Overcrowding and squalid conditions, societal stigmatization and discrimination, and poorly trained staff heighten the risk of violence. Effective complaints, monitoring and inspection mechanisms, and adequate government regulation and oversight are frequently absent. Not all perpetrators are held accountable, creating a culture of impunity and tolerance of violence against children. The impact of institutionalization goes beyond the experience by children of violence. Long-term effects can include severe developmental delays, disability, irreversible psychological damage, and increased rates of suicide and recidivism.[393]
536. The Commission observes that beyond the actual violence and excessive force inflicted by personnel, the environment in which the child is detained is a form of structural violence, as it goes against the system’s very purpose, breeds further deterioration and seriously jeopardizes the child’s chances of social reintegration upon release. The State’s efforts must target the eradication of violence, both in terms of avoiding situations that directly involve a violation of a detained child’s physical integrity, regardless of the perpetrator, and in terms of eliminating the structural violence that is a product of the conditions in which the child is being held.[394]
537. Transferring sick children in handcuffs, mock executions, constant night visits to terrify and humiliate the child, threats, physical and mental mistreatment, and various forms of torture or cruel, inhuman and degrading treatment are just some of the forms of violence denounced in multiple reports that recount violations of the rights of children deprived of their liberty in the hemisphere. The episodes of torture are of various kinds: using hoods, forcing a child’s head underwater, electric shocks, sexual abuse and rape, and others.
538. For example, in some States like Costa Rica, the information received indicates that 41.5% of children deprived of their liberty say they have been mistreated; of these, 44.4% blame the guards, 5.5% blame the administrative personnel, and 27.7% blame other detained children.[395] In the case of Brazil, the IACHR received information indicating that it identified 5,400 children as individual victims of torture, involving bodily injuries and death.[396] When answering the questionnaire, a number of States even admitted that conflicts between staff and the detained children resulted in physical injuries, not just to the children but to staff as well.
539. The risk of violence is obvious, given the conditions under which children and adolescents are deprived of their liberty in the hemisphere. The situation is even worse in the case of girls, which means that the gender dimension of violence in the juvenile justice system has to be considered.[397] Thus, for example, the information the Commission received concerning the United States indicates that one of the most disturbing abuses is the use of inappropriate or excessive force against girls by staff of the detention centers. The reports make reference to one of the most troubling abuses, described as
... the excessive use of a forcible face-down “restraint” procedure intended for emergencies but in fact used far more often. In a restraint, staff seize a girl from behind and, in a face-down posture, push her head and entire body to the floor. They then pull her arms up behind her and hold or handcuff them. We found that the procedure is used against girls as young as 12 and that it frequently results in facial abrasions and other injuries, and even broken limbs ..., all girls are bound in some combination of handcuffs, leg shackles, and leather restraint belts any time they leave the facility. Girls are also subject to frequent strip-searches in which they must undress in front of a staff person and submit to a thorough visual inspection including their genitals.[398]
540. The Commission has already learned of the peer violence that occurs inside the juvenile facilities. This happens in almost every country of the region and has become particularly pronounced in some Central American countries because some juvenile offenders belong to gangs. For example, in its response to the question about how many children deprived of liberty had, over a 12-month period, sustained injuries caused by third parties, Guatemala answered that, in 2007, 15 children had sustained (light and serious) injuries in gang fights. As for the situation in Honduras, there are reports that in the juvenile detention facilities “there are often conflicts between children and adolescents who have no gang affiliation and gang members, provoking intense aggression between these groups.”[399]
541. The information that the Commission has available indicates that sometimes there are no contingency plans or preventive mechanisms in place to deal with violence, with the result that when fighting or prison riots break out, the police or specialized or militarized law enforcement bodies are brought in, and launch extremely violent operations. The IACHR would again point out that interventions of this type are not a proper response, because law enforcement bodies are not trained to deal with incarcerated children.[400]
542. The IACHR observes that violence prevention plans must feature systematic and continual training of the staff assigned to the juvenile justice system, especially those who have direct contact with children.[401] The rule that expressly prohibits the carrying and use of weapons[402] by personnel in any facility where children are detained, is an obligation requiring unqualified compliance on the States’ part. States also have an obligation to take measures to ensure that no type of weapon is inside the detention center, including knives fashioned by the detained children themselves; such weapons have to be confiscated. Accordingly, the States must employ such methods as metal detectors to prevent knives, firearms and home-made weapons from getting into the facility, as these can add to the incidence of violence in juvenile detention facilities.[403] The staff of the facilities must respect the children’s dignity in all search and seizure procedures.
543. Another measure to prevent violence is to require the detained children to undergo a medical check-up upon arrival. Rule 50 of the Havana Rules reads as follows:
Every juvenile has a right to be examined by a physician immediately upon admission to a detention facility, for the purpose of recording any evidence of prior ill-treatment and identifying any physical or mental condition requiring medical attention[404].
544. From the information the Commission has obtained, upon arrival, regular medical examinations of children deprived of their liberty do not appear to be routine.[405] The Committee on the Rights of the Child has specifically recommended to certain States like Nicaragua to “introduce regular medical examination of children by independent medical staff.”[406] Most countries in the Eastern Caribbean do not have medical personnel present to check a child’s health when admitted to the institution. In the countries of the Western Caribbean, children are generally seen by a nurse or the medical staff at the facilities at the time the child is admitted; however this tends to make the child even more vulnerable to mistreatment and abuse by facility personnel, since in such cases they are not likely to receive immediate medical attention.[407]
545. The IACHR shares the concern expressed by the Committee on the Rights of the Child regarding the administration of juvenile justice in Honduras, especially given the poor detention conditions, which persist despite recent improvements in juvenile detention centers. These poor conditions in juvenile facilities include: overcrowding; a lack of medical and psychological services; a lack of sanitation; reports of consistent violations of the right to life of children deprived of their liberty; decisions depriving children of their liberty which are neither periodically nor consistently reviewed; a lack of access to reintegration programs during or after the period of deprivation of liberty for the majority of children; cases of a lack of segregation of accused children awaiting trial from persons already convicted.[408]
546. In the final analysis, overcrowding and the deplorable conditions under which the deprivation of liberty takes place and the inadequate staff training increase the risk of violence and human rights violations against children deprived of their liberty. In some cases, the violence is perpetrated by the staff and the authorities at the juvenile detention facility. But it may also be perpetrated by other children deprived of their liberty there. The Commission reiterates that the State is responsible for preventing, investigating, punishing and redressing this violence, irrespective of whether it was caused by its own personnel or by third parties.
5. Disciplinary Sanctions in the Case of Children and Adolescents Deprived of Their Liberty
547. One issue that the Commission must address, because it is so common within the juvenile justice system, is the disciplinary sanctions imposed on children deprived of their liberty. The Commission observes that, under certain circumstances, and within specific limits, the use of disciplinary sanctions may be permissible and even necessary, especially in order to prevent something worse.
548. At the same time, the Commission must again point out that any measures that involve cruel, inhuman or degrading treatment and corporal punishment[409] are prohibited, as are confinement in a dark, closed or solitary cell, the reduction of food, a restriction or denial of the detained child’s contact with family members, or any measure that jeopardizes his or her physical or mental health.[410] Any collective sanctions and multiple sanctions for the same offense must be strictly prohibited.[411]
549. Concerning the disciplinary sanctions, Rules 67 and 68 of the Havana Rules provide that:
All disciplinary measures constituting cruel, inhuman or degrading treatment shall be strictly prohibited, including corporal punishment, placement in a dark cell, closed or solitary confinement or any other punishment that may compromise the physical or mental health of the juvenile concerned. The reduction of diet and the restriction or denial of contact with family members should be prohibited for any purpose. Labour should always be viewed as an educational tool and a means of promoting the self-respect of the juvenile in preparing him or her for return to the community and should not be imposed as a disciplinary sanction. No juvenile should be sanctioned more than once for the same disciplinary infraction. Collective sanctions should be prohibited.
Legislation or regulations adopted by the competent administrative authority should establish norms concerning the following, taking full account of the fundamental characteristics, needs and rights of juveniles: (a) Conduct constituting a disciplinary offence; (b) Type and duration of disciplinary sanctions that may be inflicted; (c) The authority competent to impose such sanctions; (d) The authority competent to consider appeals.
550. Disciplinary measures must also observe the principles of strict legality, legal definition or criminalization of the offense (tipicidad), due process,[412] unbiased enforcement, use of objective criteria and the possibility of judicial review.[413] These principles and guarantees must also be observed in that phase of the process in which disciplinary sanctions are enforced. Children accused of disciplinary infractions must be informed of the nature of the charge against them without delay and in a manner they can understand. They are also entitled to the time and conditions necessary to articulate their defense, and may resort to the assistance of an attorney or their family, whichever is appropriate.[414]
551. Corporal punishment is not only prohibited as a form of punishment for children who violate criminal laws; it is also prohibited as a disciplinary measure applied to children serving custodial sentences. The IACHR has established that corporal punishment is an inhuman and degrading punishment that violates Article 5 of the American Convention. In its report on corporal punishment and human rights of children and adolescents, the IACHR addressed the matter of corporal punishment at length and unreservedly stated that:
States are obliged to eradicate the use of corporal punishment as a way of disciplining children and adolescents in all areas of their lives [415].
552. The IACHR also emphasized that:
… in accordance with the established doctrine as applicable to children, which is based on their needs and the principle of their best interests, States are obliged to “adopt all positive measures required to ensure the protection of children against mistreatment corporal punishment and other forms of violence, whether in their relations with public authorities or in relations among individuals or with non-governmental entities” in order to ensure them the full exercise and enjoyment of their rights[416].
553. For its part, the Committee on the Rights of the Child has observed that corporal punishment:
… directly conflicts with the equal and inalienable rights of children to respect for their human dignity and physical integrity[417].
554. As for solitary confinement as a disciplinary sanction, the Commission was very clear when it stated that States have an obligation to prohibit, by express legal provisions:
It shall be strictly forbidden to impose solitary confinement to pregnant women; mothers who are living with their children in the place of deprivation of liberty; and children deprived of liberty [418].
555. The Committee on the Rights of the Child has also addressed the matter of disciplinary proceedings by establishing that:
Any disciplinary measure must be consistent with upholding the inherent dignity of the juvenile and the fundamental objectives of institutional care; disciplinary measures in violation of article 37 of CRC must be strictly forbidden, including corporal punishment, placement in a dark cell, closed or solitary confinement, or any other punishment that may compromise the physical or mental health or well-being of the child concerned[419].
556. Although these prohibitions and the limits on the disciplinary sanctions that can be imposed on children deprived of their liberty are clear, the Commission has received information to the effect that solitary confinement and corporal punishment continue to be used within the region. The Commission is very troubled by the fact that such practices still exist, as they violate the child’s human rights. It is surprised by the fact that these measures are explicitly contemplated in some legislation of certain countries of the region.
557. By way of example, Section 34 of Barbados’ Reformatory and Industrial Schools Act provides that:
34. (1) Any boy sentenced or ordered to be detained in a School who escapes therefrom may at any time before the expiration of his period of detention be apprehended without warrant, and if the Principal of the School think fit, but not otherwise, may, any other Act to the contrary notwithstanding, be then brought before a magistrate of the district in which he is found or in which the School is situated.
(2) The boy shall thereupon be liable on summary conviction to be whipped, not exceeding twelve stripes in the case of a boy whose age does not exceed sixteen and twenty-four stripes in the case of a boy whose age exceeds sixteen, with a rod, and he shall be brought back to the School there to be detained during a period equal to so much of his period of detention as remained unexpired at the time of his escaping.
558. Rule 52 of Belize’s prison regulations authorizes visiting judges to order confinement in a cell, on a restricted diet for a period of no more than 28 days, as a disciplinary punishment for certain types of behavior. This period of confinement does not count toward the child’s sentence of incarceration.
559. The Commission observes that corporal punishment and disciplinary measures involving confinement have not been abolished in the vast majority of the member States. Even in those places where they are prohibited, they continue to be practiced. For example, although Article 45 of Chile’s Law 20,084 prohibits “disciplinary measures involving corporal punishment, confinement to a dark or closed cell, or solitary confinement, as well as any other measure that can endanger the child’s physical or mental health or that is cruel, degrading or inhuman,”[420] civil society organizations have said that one form of cruel, inhuman and degrading treatment that has been a source of constant concern in the country is the use of “isolation cells”.[421] In general, confinement in isolation is used as a disciplinary measure against those who violate the disciplinary rules of the facility.
560. According to information reported to the IACHR, at one of Chile’s juvenile detention facilities, the Comunidad Tiempo Joven¸ an entire house –number five- has long been used to place children in solitary confinement. It reportedly consists of two separate concrete cells, two meters by two meters in size, with an iron door and a window measuring twenty centimeters by twenty centimeters; the cells are dark and the window is covered with cardboard from the outside; it has a unpleasant odor; neither cell has a bathroom and the bed is small and pressed against the wall.[422]
561. Something similar happens in the case of Colombia. In its response to the Commission’s questionnaire, Colombia identified the following as the prohibited disciplinary measures: isolation in dark cells, incommunicado detention, withholding of food, denial of sleep at night, physical punishment, collective punishments and working for the establishment. Nevertheless, the Office of the Colombian Ombudsman has confirmed that one of the disciplinary measures used on children is isolation in what are called the “reflection rooms”. According to the description supplied by the Ombudman’s Office, these are small, dark and damp rooms with no bathroom; girls and boys alike have to sleep on the floor.[423] Despite being called “reflection rooms”, it is obvious to the Commission that these are solitary confinement cells used for disciplinary reasons, in violation of the domestic and international laws prohibiting this disciplinary measure in the case of children.
562. During the Commission’s visits to prepare this report, officials at the Wagner Boys Facility in Belize said that children could be kept in the isolation cell for a week, during which time they were not allowed any physical activity. They stressed, however, that during that time they were removed from the cell for 30 to 45 minutes a day for psychological counseling. At the Opa Doeli facility in Suriname, the isolation cell was used to confine a child having suicidal thoughts, so that staff could keep the child under surveillance. The Commission must emphasize that problems of this kind need to be addressed through proper psychological treatment, but never by compounding the punishment through added sanctions that are, moreover, prohibited under international human rights law.
563. The information the Commission received suggests that in a number of countries, the rules regulating discipline in juvenile detention facilities allow restriction of freedom of movement in punishment cells; there are cases where isolation is permitted for between eight and 15 days. States routinely use euphemisms to refer to the punishment of isolation. As already examined, in Colombia the isolations cells are referred to as “reflection rooms”; in the Dominican Republic, reference is made to “temporary transfer to a reflection room;” in Chile, the expression is “separation from the group”, whereas in Mexico the expression used is “referral to retreat areas”. Only in Ecuador do the existing regulations dispense with euphemisms and refer to the practice as “isolation punishment”. But no matter what the practice is called, the Commission must once again assert that the rules of international human rights law absolutely prohibit punishments of this kind.
564. As the Commission previously observed, corporal punishment is another disciplinary measure commonly used to punish children deprived of their liberty in the region, despite the fact that it is prohibited under international law.
565. By way of example, the Bolivian Ombudsman’s Office observed that on April 22, 2009, three children were placed in the Juvenile Offenders Center at Av. Cap. Ustariz Km at Quillacollo. According to this report, as soon as the boys were admitted, they were subjected to unwarranted punishments that could only be classified as torture. To begin with, the boys’ heads were shaved and they were forced to endure corporal punishment that violated their physical integrity, such as running an obstacle course for approximately an hour, repeated spinning and jumping on the ground, while being beaten with a stick on the abdomen and elsewhere on the body. Thanks to the intervention of the Ombudsman’s Office, the boys who had been subjected to torture and physical mistreatment were released. Forensic medical certificates were issued, and the civil servants charged with security at the center and the other authorities involved were replaced.[424]
566. Something similar happens in Jamaica, where the Office of the Children’s Advocate has said that the most common complaints against correctional institutions involve physical abuse.[425] According to the information the Commission received, in Jamaica, corporal punishment normally implies flogging, although other forms of cruel and inhuman punishment are also used, such as incommunicado detention, diet restrictions and the use of restraints. The Commission has also learned that at Trinidad and Tobago’s Youth Training Center, guards may, with a physician’s approval, put children deprived of their liberty on a diet of bread and water for three days, followed by a normal diet for three days, and then the bread-and-water diet for three more days.
567. During the Commission’s visits to a number of Caribbean countries to compile information for this report, officials at the juvenile detention facilities admitted that from time to time they resorted to corporal punishment because they had no information about any other forms of discipline. This, despite the fact that all the facilities use a disciplinary system that involves withdrawing privileges, including family visits.
568. In addition to solitary confinement and corporal punishment, from the information it compiled, the Commission learned that the disciplinary regimes in force in the member States allow for a wide range of punishments, many of which are impermissible in the case of children. The punishments contained in these rules include verbal and written reprimands and admonitions, increasing a child’s work by as many as 15 days, reducing the time for recreational activities (also for up to 15 days), suspending family visits four or five times, cancelling leave granted to visit one’s family and being in contact with one’s community, and others.
569. The Commission is struck by the fact that precise descriptions of the misconduct that will warrant disciplinary measures are uncommon. Indeed, the information available suggests that in most States, the disciplinary measures are imposed on the basis of broad categories, allowing the authorities to exercise a very large degree of discretion. Such examples are: failing to comply with the rules or to perform one’s duties, violating prohibitions, disrupting order, failure to respect authority, upsetting the normal routine at the institution, failing to respect the order of activities, and others. The Commission considers that such generic descriptions make it difficult for the children to know and comprehend the prohibited types of behavior and the possible penalties they may face, paving the way for violations of the juvenile offenders’ right to due process.
570. In this sense, in addition to an express prohibition on corporal punishment, solitary confinement, restriction of family visits, measures calculated to humiliate the child, and any type of punishment that violates the rights of the detained children, the Commission is also recommending that the States establish laws guaranteeing due process when applying disciplinary measures while a child is serving a custodial sentence. Furthermore, in the Commission’s opinion, these legislative measures must be coupled with preventive policies, such as staffing centers with technical and security personnel specialized in, and trained to work with, children. It also recommends that they prepare handbooks and protocols for security personnel to ensure that the facilities are properly controlled and that the life and physical integrity of the children are not in jeopardy. In general, for the Commission, disciplinary measures will be justified so long as they are established by law, pursue a legitimate end that serves the best interests of the child and the objectives of the juvenile justice system, and are appropriate, necessary and proportional.
571. Inasmuch as the ultimate goal of the juvenile justice system is to enable the child in conflict with the law to return to his or her family and community, States must establish programs and services to achieve that end. Rule 79 of the Havana Rules provides that:
All juveniles should benefit from arrangements designed to assist them in returning to society, family life, education or employment after release. Procedures, including early release, and special courses should be devised to this end.
572. Rule 80 of that same instrument provides that:
Competent authorities should provide or ensure services to assist juveniles in re-establishing themselves in society and to lessen prejudice against such juveniles. These services should ensure, to the extent possible, that the juvenile is provided with suitable residence, employment, clothing, and sufficient means to maintain himself or herself upon release in order to facilitate successful reintegration. The representatives of agencies providing such services should be consulted and should have access to juveniles while detained, with a view to assisting them in their return to the community.
573. As part of their juvenile justice systems, States have an obligation to establish services to make it easier for children deprived of their liberty to rejoin their community. These services must be available to all children who are regaining their freedom, whether through early release programs, parole, or upon completion of their sentence. States must provide adequate funding for those services so that they can be effective.
574. These services and programs must be tailored to the age and particular needs of each child, and must plan ways to include the family and the community to which the child belongs. For children who have no family, or whose family is unable to support them, child protection services should be ready to step in to offer the support that will enable these children to provide for their social and economic needs. Children who are on the verge of attaining their adulthood, or who have already attained it, may require guidance to enroll in educational or vocational training programs, and support to obtain housing, a job and connect with other resources in the community. During the visits that the Commission made in preparation for this report, it learned of some best practices, as in the case of Jamaica, where children are provided with subsidies for their rehabilitation, to enable them to attend school once they leave the institution, pay rent or undertake a small revenue-producing project.
575. While these support programs should be available to all children who have been released, it is important to point out that reintegration into the community ought not to begin when the child is released; instead, as this report has repeatedly stated, reintegration is a process that should begin as soon as the child is sentenced and continue to be implemented the entire time that the child is serving his or her sentence.
576. The Commission observes that some programs in the region are conducted while the child is serving his or her custodial sentence, and are designed to ensure that the child has an opportunity to return to his or her community. For example, re-integration permits are a common practice allowing the child to leave the institution to participate in educational, rehabilitative or job opportunity activities in the community. Children are also permitted to spend holidays or time at home for humanitarian considerations. These re-integration permits can be for several days or several hours per day. Programs of this type facilitate the children's reintegration by allowing them to have extended contract with the family and community by means of prolonged visits.
577. The Commission notes that, save in the case of parole, participation in community re-assimilation programs must be on a voluntary basis, and a child’s non-participation in these programs must not have punitive consequences.
578. The IACHR also believes it best that these programs be conducted by State agencies in charge of social policy, but not agencies associated with the juvenile justice system.
579. Any program or service whose purpose is to assist children deprived of their liberty with their re-assimilation into the community must make every effort to fight the discrimination and stigmatization that these children tend to suffer for having been offenders. Therefore, it is imperative that States adopt and effectively enforce and comply with laws ensuring the confidentiality of the records of children either accused or convicted of violating criminal law, and must also prohibit these records from being used in future proceedings against that person, even when he or she is an adult.[426] The Commission is troubled by the fact that in most States in the region, a child’s personal data on record in the juvenile justice system are not automatically expunged once that child turns 18, and the discrimination against the child follows the child into adult life.
580. Here, the Committee on the Rights of the Child has recommended that the States Parties:
... introduce rules which would allow for an automatic removal from the criminal records of the name of the child who committed an offence upon reaching the age of 18, or for certain limited, serious offences where removal is possible at the request of the child, if necessary under certain conditions (e.g. not having committed an offence within two years after the last conviction)[427].
581. The information that the Commission obtained concerning implementation of post-release services and programs for juvenile offenders, suggests that few such services are available in the region. Many of the States that answered the Commission’s questionnaire stated that they had no data or information on this point. Some, like the Dominican Republic, Chile or Costa Rica, expressly acknowledged that at that time there were no programs of this type. Costa Rica explained that even though there are no such programs, the children do receive support when they apply for it. The lack of post-release follow-up programs is a matter of great concern to the Commission.
582. One exception is Jamaica, where 100% of the children released are automatically enrolled in post-release programs to track their reintegration into the community. This is in large part due to the fact that Jamaica has a law under which children who complete their correctional order before turning 18 years of age must undergo a period of supervision.
583. In its answer to the questionnaire, Colombia asserted that post-release services are offered, such as arrangement of identification papers, civil registration, assistance in enrolling in the formal educational system, or joining the job market, the search for fellowships for technical careers, and others. In its reply to the questionnaire, Mexico observed that 1,087 children out of the total released in the last 12 months (3,437) had received the benefit of technical follow-up, but did not explain the make-up of that program. In its response to the questionnaire, Venezuela observed that no figures were available, but that the method used to prepare children for release had succeeded in establishing associations with community organizations to help in the children’s re-socialization.
584. The Commission must emphasize that the States’ juvenile justice systems need to establish post-release follow-up and support mechanisms as part of their obligation to ensure that the sentences imposed on children accomplish the purposes they were intended to serve. [ Table of Contents | Previous | Next ] [242] I/A Court H.R., Case of the "Juvenile Re-education Institute" v. Paraguay. Preliminary Objections, Merits, Reparations and Costs. Judgment of September 2, 2004. Series C No. 112, para. 225. [243] Committee on the Rights of the Child, General Comment No. 10, Children’s rights in juvenile justice, CRC/C/GC/10, 25 April 2007, para. 80. [244] The Tokyo Rules, Rule 3. [245] Committee on the Rights of the Child, General Comment No. 10, Children’s rights in juvenile justice, CRC/C/GC/10, 25 April 2007, para. 68. [246] In Costa Rica, a total of 231 sentences were handed out in 2007; 194 of the sentences were non-custodial measures and 37 involved the deprivation of liberty (DNI, Diagnóstico regional sobre las condiciones de detención de las personas adolescentes en las cárceles de Centroamérica Regional study on detention conditions for adolescents in Central American prisons, 2009). Available at: http://viasalternas.dnicostarica.org/v2/documentos/633893876330375000.pdf. [247] UNICEF, Juvenile criminal justice. Good Practices in Latin America, Panama, 2003, pp. 39 et seq. [248] James Austin et al, 2005, "Alternatives to the Secure Detention and Confinement of Juvenile Offenders", Office of Juvenile Justice and Delinquency Prevention, Washington, D.C, 2005, cited in: Justice Policy Institute, The Costs of Confinement Why Good Juvenile Justice Policies make Good Fiscal Sense, May 2009, p. 16; and Michael Fendrich and Melanie Archer, Long-term Re-arrest Rates in a Sample of Adjudicated Delinquents: Evaluating the Impact of Alternative Programs, The Prison Journal 78, No. 4 (1998), pp. 360-389, cited in: Justice Policy Institute, The Costs of Confinement Why Good Juvenile Justice Policies make Good Fiscal Sense, May 2009, p. 16. Available at: http://www.justicepolicy.org/images/upload/09_05_REP_CostsofConfinement_JJ_PS.pdf. [249] The Beijing Rules, Rule 17.1.b) states that “Restrictions on the personal liberty of the juvenile shall be imposed only after careful consideration and shall be limited to the possible minimum”. [250] IACHR, Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas. Document Approved by the Commission during its 131st regular period of sessions, held from March 3-14, 2008. [251] Report of the independent expert for the United Nations study on violence against children, August 29, 2006, A/61/299, para. 112. [252] IACHR, Written and oral comments concerning 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. [253] IACHR, Report No. 41/99, Case 11.491 (Honduras), Admissibility and Merits, Minors in Detention, March 10, 1999, para. 117. [254] Convention on the Rights of the Child, Article 37(b) and Article 40(4); Beijing Rules, Rules 5, 17(a) and 19; Havana Rules, Rules 1 and 2, and the Tokyo Rules, Rule 3(2). [255] Committee on the Rights of the Child, General Comment No. 10, Children’s rights in juvenile justice, CRC/C/GC/10, 25 April 2007, para. 11. [256] There is a difference between the “proportionality of the sentence” and the “proportionality principles” within the test to control arbitrary restrictions referred to by the I/A Court H.R. While the first principle justifies the rationality of the sentence in relation with the severity of the conduct that is penalized, for the I/A Court H.R., the principle of proportionality as a control on arbitrary restrictions constitutes a three-stage test to determine if the restriction could be considered as "necessary in a democratic society". See the Case of Tristan Donoso v. Panama. Judgment of January 27, 2009, Series C. No.193, para. 56. After examining the appropriateness and the necessity of the measure, at the proportionality phase, there must be a check as to whether "the sacrifice inherent in the restriction of the right to liberty is not exaggerated or excessive compared to the advantages obtained from this restriction and the achievement of the purpose sought." Case of Chaparro-Álvarez and Lapo-Íñiguez. v. Ecuador, Judgment of November 21, 2007, Series C, No. 170, para. 93. [257] The Tokyo Rules, Rule 2.6. [258] I/A Court H.R., Case of the Gómez-Paquiyauri Brothers v. Peru. Merits, Reparations and Costs. Judgment of July 8, 2004. Series C No. 110. [259] Committee on the Rights of the Child, General Comment No. 10, Children’s rights in juvenile justice, CRC/C/GC/10, 25 April 2007, para. 71. [260] Information the Commission obtained during interviews with government officials and NGO's in Suriname. [261] ANCED – Associação Nacional dos Centros de Defesa da Criança e do Adolescente National Association of Juvenile Protection Centers, Análise sobre os directos da criança e do adolescente no Brasil: relatório preliminar da ANCED Analysis of the rights of children and adolescents in Brazil, ANCED’s preliminary report, San Paulo, 2009. [262] The report of the Michigan American Civil Liberties Union, titled “Second Chances: Juveniles Serving Life without Parole in Michigan Prisons”, published in 2004, cites a number of cases of children who received sentences equal to or longer than their adult co-defendants. [263] Michele Deitch, et al, From Time Out to Hard Time: Young Children in the Criminal Justice System, Austin Texas: University of Texas at Austin, LBJ School of Public Affairs, p. 38. Available at: http://www.utexas.edu/lbj/news/story/856/. [264] Section 190.5(b) of the California Penal Code states that the penalty for murder with special circumstances committed by a minor of 16 to 17 is life in prison without the possibility of parole. [265] Under Section 190.2(a)(22) of the California Penal Code, a gang murder can be construed as a murder with special circumstances, which carries a presumptive punishment of life without parole. Cited in: Human Rights Watch, When I Die, They’ll Send Me Home: Youth Sentenced to Life Without Parole in California, January 2008, p. 33. Available at: http://www.hrw.org/en/reports/2008/01/13/when-i-die-they-ll-send-me-home. [266] Human Rights Watch, When I Die, They’ll Send Me Home: Youth Sentenced to Life Without Parole in California, January 2008, p. 22. Available at: http://www.hrw.org/en/reports/2008/01/13/when-i-die-they-ll-send-me-home. [267] Committee on the Rights of the Child, General Comment No. 10, Children’s rights in juvenile justice, CRC/C/GC/10, 25 April 2007, para. 77. [268] Committee on the Rights of the Child, General Comment No. 10, Children’s rights in juvenile justice, CRC/C/GC/10, 25 April 2007, para. 77. [269] Criminal Code of Saint Vincent and the Grenadines, Chapter 124, Section 24, cited in the report from the State to the Committee on The Rights of the Child, Consideration of Reports submitted by States Parties under Article 44 of the Convention, Concluding observations on Saint Vincent and the Grenadines, October 10, 2002, Document CRC/C/28/Add.18. [270] IACHR. Report No. 26/08. Petition 270-02 (Argentina). Admissibility. César Alberto Mendoza et al. 14 March 2008. [271] “The Committee on the Rights of the Child is deeply concerned about the fact that children as young as 9 years of age can be sentenced to life imprisonment without provision for parole”. Also, the Committee noted that “As regards life imprisonment of children without provision for parole, to urgently review its domestic legislation, particularly the provisions of the Indictable Procedures Act (chapter 96 of the Laws of Belize) and the Court of Appeal Act (chapter 90 of the Laws of Belize), in order to bring its domestic laws into full conformity with the provisions and principles of the Convention” Committee on The Rights of the Child, Consideration of Reports submitted by States Parties under Article 44 of the Convention, Concluding observations: Belize, CRC/C/15/Add/252, 31 March 2005, paras. 70. and 71(c). [272] The Committee was deeply concerned that “the sentence of life imprisonment is not excluded for persons below the age of 18 years as stated in the State party report” Committee on The Rights of the Child, Consideration of Reports submitted by States Parties under Article 44 of the Convention, Concluding observations: Saint Lucia, CRC/C/15/Add.258, 21 September 2005, para. 72. [273] Information supplied by the Commission by the Global Initiative to End All Corporal Punishment of Children. [274] Jamaica’s Child Care and Protection Act, Article 78(1). [275] In para. 68 of its 2004 Concluding Observations regarding Antigua and Barbuda, the Committee on the Rights of the Child expressed concern over “the possibility that a person under 18 years can be sentenced to life imprisonment for murder.” The Committee also observed that “Persons under 18 years of age can be sent to prison, possibly for life, for murder or treason, since, by the State party’s own admission, the law does not stipulate the length of such incarceration.” Committee on The Rights of the Child, Consideration of Reports submitted by States Parties under Article 44 of the Convention, Concluding observations: Antigua and Barbuda, CRC/C/15/Add.247, November 3, 2004, para. 68. [276] Section 14 of Chapter 138 of Barbados’ Juvenile Offenders Act provides that “The sentence of death shall not be pronounced on or recorded against a person convicted of an offence if it appears to the court that at the time when the offence was committed he was under the age of 18 years; but in lieu thereof the court shall, notwithstanding anything in this or in any other Act, sentence him to be detained during Her Majesty’s pleasure, and if so sentenced, he shall be liable to be detained in such place and under such conditions as the Governor-General may direct and whilst so detained shall be deemed to be in legal custody". [277]Section 3(1)(b) of Chapter 10:31 of Dominica’s Offences against the Person Act states that a person convicted of murder when he was under the age of 18 years shall not have the sentence of death pronounced or recorded against him. The individual would instead be detained in such a place and under such conditions as the President may direct. [278] Solana Río, Emilio, Estadísticas de administración de justicia en Centroamérica Statistics on the administration of justice in Central America, San José, Costa Rica, December 13, 2007. [279] Committee on the Rights of the Child, General Comment No. 10, Children’s rights in juvenile justice, CRC/C/GC/10, 25 April 2007, para. 77. See also Havana Rules, Rule 79. [280] Juvenile Criminal Justice Act, Article 132. [281] Comprehensive Child and Adolescent Protection Act, Article 254. [282] Law 40, Article 143. [283] Youth Criminal Justice Act, Section 94(3). See also, N. Bala and Anand, Criminal Justice Law, Toronto: Irwin Law, 2009. Ch. VIII (Sentencing Under the Youth Criminal Justice Act). [284] The Beijing Rules, Rule 28.2. [285] 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, paras. 77 and 88. [286] IACHR, Report No. 38/96, Case 10.506 (Argentina), Admissibility and Merits, X v. Y, 15 October 1996.
[287]
See, Convention on the Rights of the Child, Article 37(c); The
Havana Rules, Rules 32 and 60; The Beijing Rules, Rule 26.5; Economic
and Social Council, Resolution 1997/30, 36th plenary
meeting, Administration of juvenile justice, Annex
Guidelines for action on
children
in the criminal justice system, of July 21, 1997, [288] The Havana Rules, Rules 30 and 60. [289] Committee on the Rights of the Child, General Comment No. 10, Children’s rights in juvenile justice, CRC/C/GC/10, 25 April 2007, paras. 87 and 90. [290] The Beijing Rules, Rule 25.1. See also European Rules for juvenile offenders subject to sanctions or measures, para. 53.5: Juvenile institutions shall be located in places that are easy to access and facilitate contact between the juveniles and their families. They should be established and integrated into the social, economic and cultural environment of the community. [291] Observatorio del Sistema Judicial Observatory of the Judicial System, Privados de libertad Incarcerated (Uruguay). La voz de los adolescentes The Voice of Adolescents, Movimiento Nacional Gustavo Volpe – United Nations Children’s Fund, UNICEF, Montevideo, 2008. [292] Information obtained by Commission staff that traveled to the New Opportunities Corps in Georgetown, Guyana. [293] Office of the Ombudsman (Peru), La situación de los adolescentes infractores de la ley penal privados de libertad (supervisión de los centros juveniles-2007) The situation of juvenile offenders supervisión at juvenile detention facilities-2007, Ombudsman’s Report No. 123, Lima, 2007, p. 72. [294] OMCT – OPCION, Derechos de los niños en Chile Children’s rights in Chile, Informe Alternativo al Comité de los Derechos del Niño de las Naciones Unidas sobre la aplicación de la Convención sobre los Derechos del Niño en Chile Alternative Report to the United Nations Committee on the Rights of the Child on the application of the Convention of the Rights of the Child in Chile, 2007. [295] IACHR, Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas, document approved by the Commission at its 131st session, held March 3 to 14, 2008, Principle XVIII in fine; Havana Rules, Rule 62. [296] Convention on the Rights of the Child, Article 16. [297] Ombudsman’s Office (Peru), La situación de los adolescentes infractores de la ley penal privados de libertad (supervisión de los centros juveniles-2007) The situation of incarcerated juvenile offenders supervision of juvenile facilities-2007), Informe Defensorial Nº 123 Report No. 123 of the Ombudsman’s Office, Lima, 2007, p. 86. [298] See, IACHR, Report on the situation of Human Rights in Brazil, 1997, OEA/Ser.L/V/II.97, Doc. 29 rev.1, 29 September 1997, Chapter V, para. 32. [299] IACHR, Report N° 41/99, Case 11.491 (Honduras), Admissibility and Merits, Minors in Detention, 10 March 1999, paras. 125 and 126. [300] IACHR, Annual Report 1991, OEA/Ser.L/V/II.81, Doc.6, rev.1, 14 February 1992, p. 326. [301] I/A Court H.R., Case of Bulacio v. Argentina. Merits, Reparations and Costs. Judgment of September 18, 2003. Series C No. 100, para. 136. [302] I/A Court H.R., Case of the "Juvenile Re-education Institute" v. Paraguay. Preliminary Objections, Merits, Reparations and Costs. Judgment of September 2, 2004. Series C No. 112, para. 175. [303] Gómez Gómez, Darío, Diagnóstico Centroamericano, Estándares Justicia Penal Juvenil, Central American Study: Standards of Juvenile Criminal Justice, DNI Costa Rica – Central America, 2009. [304] Michele Deitch, et al, From Time Out to Hard Time: Young Children in the Criminal Justice System, University of Texas at Austin, LBJ School of Public Affairs, Austin, 2009, p. xiv. Available at: http://www.utexas.edu/lbj/news/story/856/. [305] See, for example, Section 7 of Antigua and Barbuda’s Juvenile Court Act. [306] See also Universidad Diego Portales, Informe de Derechos Humanos 2006 (hechos de 2005) 2006 Report on Human Rights, (2005 facts). [307] Gómez Gómez, Darío, Diagnóstico Centroamericano, Estándares Justicia Penal Juvenil Central American Study: Standards of Juvenile Criminal Justice, DNI Costa Rica – Central America, 2009. [308] Committee on the Rights of the Child, General Comment No. 10, Children’s rights in juvenile justice, CRC/C/GC/10, 25 April 2007, para. 86. [309] DNI Costa Rica, Diagnóstico regional sobre las condiciones de detención de las personas adolescentes en las cárceles de Centroamérica Regional study on detention conditions for adolescents in Central American prisons, 2004, p. 79. Available at http://www.dnicostarica.org/wordpress/wp-content/uploads/pdf/violencia_juvenil/Carceles.pdf. [310] Decree-Law 22,278 of August 25, 1980, amended by Law 22,803 (Argentina), Article 6. [311] Bala, Carrington and Roberts, Evaluating the Youth Criminal Justice Act after Five Years: A Qualified Success, Revue Canadienne de Criminologie et de Justice Pénale, April 2009, p. 158. [312] Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Report on the visit of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment to Honduras, CAT/OP/HND/1, February 10, 2010, para. 239. [313] IACHR, Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas, document approved by the Commission at its 131st session, held March 3 to 14, 2008, Principle I. [314] I/A Court H.R., Case of the Gómez-Paquiyauri Brothers v. Peru. Merits, Reparations and Costs. Judgment of July 8, 2004. Series C No. 110, para. 108; Case of Maritza Urrutia v. Guatemala. Merits, Reparations and Costs. Judgment of November 27, 2003. Series C No. 103, para. 87, and Case of Juan Humberto Sánchez v. Honduras. Preliminary Objection, Merits, Reparations and Costs. Judgment of June 7, 2003. Series C No. 99, para. 96. [315] Cf. Standard Minimum Rules for the Treatment of Prisoners, Adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Geneva in 1955, and approved by the Economic and Social Council by its resolutions 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977, para. 57. [316] I/A Court H.R., Case of Tristán-Donoso v. Panama. Judgment of January 27, 2009. Series C No. 193, para. 56. [317] I/A Court H.R., Case of the "Juvenile Re-education Institute" v. Paraguay. Preliminary Objections, Merits, Reparations and Costs. Judgment of September 2, 2004. Series C No. 112, para. 155. [318] I/A Court H.R., Case of the Gómez-Paquiyauri Brothers v. Peru. Merits, Reparations and Costs. Judgment of July 8, 2004. Series C No. 110, para. 98; Case of Juan Humberto Sánchez v. Honduras. Preliminary Objection, Merits, Reparations and Costs. Judgment of June 7, 2003. Series C No. 99, para. 111, and Case of Bulacio v. Argentina. Merits, Reparations and Costs. Judgment of September 18, 2003. Series C No. 100, para. 138. [319] I/A Court H.R., Case of Bulacio v. Argentina. Merits, Reparations and Costs. Judgment of September 18, 2003. Series C No. 100, para. 126. [320] I/A Court H.R., Matter of the Children Deprived of Liberty in the “Complexo do Tatuapé” of FEBEM. Provisional Measures. Order of the Inter-American Court of Human Rights of July 3, 2007, point. 8; Matter of the Children Deprived of Liberty in the “Complexo do Tatuapé” of FEBEM. Provisional Measures. Order of the Inter-American Court of Human Rights of July 4, 2006, point ten; Case of the “Juvenile Re-education Institute”. Preliminary Objections, Merits, Reparations, Costs. Judgment of September 2, 2004, Series C No. 112, para. 160. [321] I/A Court H.R., Case of the “Juvenile Re-education Institute. Preliminary Objections, Merits, Reparations, Costs. Judgment of September 2, 2004,. Series C No. 112, para. 160. [322] IACHR, Report No. 41/99, Case 11.491 (Honduras), Admissibility and Merits, Minors in Detention, March 10, 1999, para. 135. [323] IACHR, Written and oral comments concerning 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. [324] Tokyo Rules, Rule 3.10. [325] Committee on the Rights of the Child, General Comment No. 10, Children’s rights in juvenile justice, CRC/C/GC/10, 25 April 2007, para. 12. [326] I/A Court H.R., Case of the "Juvenile Re-education Institute" v. Paraguay. Preliminary Objections, Merits, Reparations and Costs. Judgment of September 2, 2004. Series C No. 112, para. 161. In the same sense, 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, paras. 80-81, 84 and 86-88; Case of the “Street Children” (Villagrán-Morales et al.) v. Guatemala. Merits. Judgment of November 19, 1999. Series C No. 32, para. 196; and Beijing Rules, Rule 13.5. [327] Havana Rules, Rules 12 and 87(f). [328] Havana Rules, Rule 24. On admission, all juveniles shall be given a copy of the rules governing the detention facility and a written description of their rights and obligations in a language they can understand, together with the address of the authorities competent to receive complaints, as well as the address of public or private agencies and organizations which provide legal assistance. For those juveniles who are illiterate or who cannot understand the language in the written form, the information should be conveyed in a manner enabling full comprehension. See also IACHR, Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas, document approved by the Commission at its 131st regular session, held March 3 to 14, 2008, Principle IX.1 European Rules for juvenile offenders subject to sanctions or measures, paras. 62.3 and 62.4. [329] See I/A Court H.R., Case of Bulacio v. Argentina. Merits, Reparations and Costs. Judgment of September 18, 2003. Series C No. 100, para. 126 and 138; I/A Court H.R., Case of Hilaire, Constantine and Benjamin et al. v. Trinidad and Tobago. Merits, Reparations and Costs. Judgment of June 21, 2002. Series C No. 94, para. 165; and I/A Court H.R., Case of Cantoral-Benavides v. Peru. Merits. Judgment of August 18, 2000. Series C No. 69, para. 87. [330] I/A Court H.R., Case of the Gómez-Paquiyauri Brothers v. Peru. Merits, Reparations and Costs. Judgment of July 8, 2004. Series C No. 110, para. 128; I/A Court H.R., Case of Myrna Mack-Chang v. Guatemala. Merits, Reparations and Costs. Judgment of November 25, 2003. Series C No. 101, para. 152; and I/A Court H.R., Case of Juan Humberto Sánchez v. Honduras. Preliminary Objection, Merits, Reparations and Costs. Judgment of June 7, 2003. Series C No. 99, para. 110. [331] American Convention on Human Rights, Articles 5 and 27. [332] I/A Court H.R., Case of the "Juvenile Re-education Institute" v. Paraguay. Preliminary Objections, Merits, Reparations and Costs. Judgment of September 2, 2004. Series C No. 112, para. 158. [333] I/A Court H.R., Case of the Gómez-Paquiyauri Brothers v. Peru. Merits, Reparations and Costs. Judgment of July 8, 2004. Series C No. 110, para. 124, 163-164, and 171; Case of Bulacio v. Argentina. Merits, Reparations and Costs. Judgment of September 18, 2003. Series C No. 100, para. 126 and 134; and Case of the “Street Children” (Villagrán-Morales et al.) v. Guatemala. Merits. Judgment of November 19, 1999. Series C No. 32, paras. 146 and 191. In the same sense, cf. 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, paras. 56 and 60. [334] I/A Court H.R., Case of the "Juvenile Re-education Institute" v. Paraguay. Preliminary Objections, Merits, Reparations and Costs. Judgment of September 2, 2004. Series C No. 112, para. 160. [335] Cf. Convention on the Rights of the Child, Article 37,b), and Case of the Gómez-Paquiyauri Brothers v. Peru. Merits, Reparations and Costs. Judgment of July 8, 2004. Series C No. 110, para. 112. [336] I/A Court H.R., Case of the Gómez-Paquiyauri Brothers v. Peru. Merits, Reparations and Costs. Judgment of July 8, 2004. Series C No. 110, para. 170.
[337]
IACHR, Report N° 33/04, Case 11.634, Jailton Neri Da Fonseca
(Brazil), Merits, 11 March 2004, [338] I/A Court H.R., Case of the Gómez-Paquiyauri Brothers v. Peru. Merits, Reparations and Costs. Judgment of July 8, 2004. Series C No. 110, para. 170. [339] 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. 87 and operative para. number 9. [340] IACHR, Report No. 41/99, Case 11.491 (Honduras), Admissibility and Merits, Minors in Detention, March 10, 1999, para. 136. [341] I/A Court H.R., Matter of Yare I and Yare II Capital Region Penitentiary Center regarding Venezuela, Provisional Measures, Order of the Inter-American Court of Human Rights of 30 March 2006, point fourteen; I/A Court H.R., In the Matter of Monagas Judicial Confinement Center ("La Pica") regarding Venezuela, Provisional Measures, Order of the Inter-American Court of Human Rights of 9 February 2006, point sixteen; Matter of the Children Deprived of Liberty in the “Complexo do Tatuapé” of FEBEM. Provisional Measures. Order of the Inter-American Court of Human Rights of July 4, 2006, point nine and Order of the Inter-American Court of Human Rights of July, 3 2007, point seventeen. In the same sense, I/A Court H.R., Case of the "Juvenile Re-education Institute" v. Paraguay. Preliminary Objections, Merits, Reparations and Costs. Judgment of September 2, 2004. Series C No. 112, para. 184. [342] IACHR, Report on the Situation of Human Rights in Ecuador, OEA/Ser.L/V/II.96, doc. 10 rev.1, 1997, Chapter 6; Report on the Situation of Human Rights in Brazil, OEA/Ser.L/V/II.97, doc. 29 rev. 1, 1997; Chapter V (especially para. 32 et seq.); Report on the Situation of Human Rights in Mexico, OEA/Ser.L/V/II.100, Doc. 7 rev. 1, September 24,1998; and Third Report on the Situations of Human Rights in Colombia, OEA/Ser.L/V/II.102, Doc. 9, rev. 1, February 26, 1999; I/A Court H.R., Case of Cantoral-Benavides v. Peru. Merits. Judgment of August 18, 2000. Series C No. 69, para. 87; I/A Court H.R., Case of Durand and Ugarte v. Peru. Merits. Judgment of August 16, 2000. Series C No. 68, para. 78; I/A Court H.R., Case of Castillo-Petruzzi et al. v. Peru. Merits, Reparations and Costs. Judgment of May 30, 1999. Series C No. 52, para. 195; I/A Court H.R., Case of Bulacio v. Argentina. Merits, Reparations and Costs. Judgment of September 18, 2003. Series C No. 100, para. 126; I/A Court H.R., Case of the "Juvenile Re-education Institute" v. Paraguay. Preliminary Objections, Merits, Reparations and Costs. Judgment of September 2, 2004. Series C No. 112, para. 151. [343] Human Rights Council, Civil and Political Rights, including the Questions of Disappearances and Summary Executions, Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Philip Alston, A/HRC/4/20/Add.2, 19 February 2007, paras. 38 and 39. [344] Rivera Joya, Reina Auxiliadora, Dictamen pericial sobre la situación de violencia contra los niños y jóvenes en situación de calle, en conflicto con la Ley y miembros de maras en Honduras y la cuestión de impunidad que existe en el país con relación a estos crímenes Expert opinion on the violence against children and adolescents who live on the street, are in conflict with the law or are members of maras in Honduras and the impunity in Honduras with respect to these crimes, pp. 41 and 42. The document is available in Spanish in the Inter-American Court’s file on the Case of Servellón García et al., available at: http://www.corteidh.or.cr/expediente_caso.cfm?id_caso=250. [345] Committee on the Rights of the Child, Consideration of Reports submitted by State Parties under Article 44 of the Convention. Concluding Observations: El Salvador, CRC/C/SLV/CO/3-4, 17 February 2010, para. 43. [346] Committee on the Rights of the Child, Consideration of Reports submitted by State Parties under Article 44 of the Convention. Concluding Observations: El Salvador, CRC/C/SLV/CO/3-4, 17 February 2010, para. 87. [347] Human Rights Watch, “Real dungeons”, Juvenile Detention in the State of Rio de Janeiro, December 2004, p. 49. [348] Gómez Gómez, Darío, Diagnóstico Centroamericano, Estándares Justicia Penal Juvenil, Central American Study: Standards of Juvenile Criminal Justice, DNI Costa Rica – Central America, 2009, p. 80. [349] Committee on the Rights of the Child – Uruguay – OMCT, Informe 2008, Adolescentes privados de libertad, Condiciones actuales, problemas estructurales y recomendaciones 2008 Report, Juveniles deprived of liberty, current conditions, structural problems and recommendations, p. 26. [350] Gómez Gómez, Diagnóstico Centroamericano, Estándares Justicia Penal Juvenil Central American Study: Standards of Juvenile Criminal Justice, DNI Costa Rica – Central America, 2009. [351] UNICEF, Monitoreo de Violencia en Centros de Custodia y de Cumplimiento, 2008, p. 12. [352] See, European Rules for juvenile offenders subject to sanctions or measures, paras. 68.1 and 68.2. [353] IACHR, Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas, document approved by the Commission at its 131st regular session, held March 3 to 14, 2008, Principle X. [354] I/A Court H.R., Case of the Girls Yean and Bosico v. Dominican Republic. Preliminary Objections, Merits, Reparations and Costs, Judgment of September 8, 2005. Series C No. 130, para. 134. See also: Cf. United Nations, Committee on the Elimination of Discrimination against Women, General Recommendations No. 24, approved in the 20th Period of Sessions, 1999, on the application of Article 12 of the Convention on the Elimination of Discrimination Against Women, A/54/38/Rev.1 (SUPP), February, 5, 1999. [355] IACHR, Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas, document approved by the Commission at its 131st regular session, held March 3 to 14, 2008, Principle X. [356] I/A Court H.R., Case of the "Juvenile Re-education Institute" v. Paraguay. Preliminary Objections, Merits, Reparations and Costs. Judgment of September 2, 2004. Series C No. 112, para. 157. [357] I/A Court H.R., Case of Montero-Aranguren et al (Detention Center of Catia) v. Venezuela, Preliminary Objections, Merits, Reparations and Costs. Judgment of July 5, 2006. Series C No. 150, para. 102. [358] Ombudsman (Bolivia). IX Informe del Defensor del Pueblo al Congreso Nacional, 2007 IX Report of the Ombudsman to the National Congress, 2007, p. 143. [359] DNI, Diagnóstico regional sobre las condiciones de detención de las personas adolescentes en las cárceles de Centroamérica Regional study on detention conditions for adolescents in Central American prisons, 2004, p. 81. Available at http://www.dnicostarica.org/wordpress/wp-content/uploads/pdf/violencia_juvenil/Carceles.pdf. [360] OMCT – OPCION, Derechos de los niños en Chile Informe Alternativo al Comité de los Derechos del Niño de las Naciones Unidas sobre la aplicación de la Convención sobre los Derechos del Niño en Chile, 2007 The Rights of Children in Chile, Alternative Report to the United Nations Committee on the Rights of the Child concerning Application of the Convention on the Rights of the Child in Chile, 2007. [361] Wendy Singh, A Review of Assessments Carried Out in the Eastern Caribbean on Juvenile Justice and Recommendations for Action, December 29, 2008, p. 44. [362] Concerning the use of medications, see: Havana Rules, Rule 55. [363] 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. 168. See also: IACHR, Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas. Document Approved by the Commission during its 131st regular period of sessions, held from March 3-14, 2008, principle III.3. [364] Havana Rules, Rules 34, 35, 36, 37, 38, 39, 42, 43, 45, 46, 47 and 48. See: European Rules for juvenile offenders subject to sanctions or measures, para. 28: The rights of juveniles to benefits in respect of education, vocational training, physical and mental health care, safety and social security shall not be limited by the imposition or implementation of community sanctions or measures. [365] 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. 161. [366] Convention on the Rights of the Children, article 29.1 b); Committee on the Rights of the Child, General Comment Nº 1, The aims of education, CRC/GC/2001/1, 17 April 2001; and General Comment No. 10, Children’s rights in juvenile justice, CRC/C/GC/10, 25 April 2007, para. 13. [367] IACHR, Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas. Document Approved by the Commission during its 131st regular period of sessions, held from March 3-14, 2008, principle XIII. [368] 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. 84. [369] 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. 174. [370] Report of the Special Rapporteur on the right to education, Vernor Muñoz, The right to education of persons in detention, A/HRC/11/8, 2 April 2009, para. 42. [371] Report of the Special Rapporteur on the right to education, Vernor Muñoz, The right to education of persons in detention, A/HRC/11/8, 2 April 2009, para. 51. [372] Report of the Special Rapporteur on the right to education, Vernor Muñoz, The right to education of persons in detention, A/HRC/11/8, 2 April 2009, para. 40. [373] Wendy Singh, A Review of Assessments Carried Out in the Eastern Caribbean on Juvenile Justice and Recommendations for Action, December 29, 2008, p. 43. [374] OMCT, Human Rights Violations in Honduras, Alternative Report Submitted to the United Nations Human Rights Committee, including the Committee’s Concluding Observations, October 2006, p. 96. [375] UNICEF – Chile “Principales nudos problemáticos de los centros privativos de libertad para adolescentes y secciones juveniles” in: Universidad Diego Portales, Informe anual sobre derechos humanos en Chile, 2008, pp. 124 et seq. [376] OMCT, Human Rights Violations in Honduras, Alternative Report Submitted to the United Nations Human Rights Committee, including the Committee’s Concluding Observations, October 2006, p. 96. [377] 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. 159. [378] I/A Court H.R., Case of Neira Alegría et al. v. Peru, Merits. Judgment of January 19, 1995, Series C No. 20, para. 60. [379] 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, paras. 159 and 164. [380] Havana Rules, Rules 12, 13 and 87(f); Beijing Rules, Rule 27. [381] Committee on the Rights of the Child, General Comment No. 10, Children’s rights in juvenile justice, CRC/C/GC/10, 25 April 2007, para. 89. [382] European Rules for juvenile offenders subject to sanctions or measures, paras. 65.2 and 65.3. [383] IACHR, Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas. Document Approved by the Commission during its 131st regular period of sessions, held from March 3-14, 2008, Principle XVII. [384] I/A Court H.R., Matter of Urso Branco Prison regarding Brazil, Provisional Measures. Order of the Inter-American Court of Human Rights of July 7, 2004, point number thirteen. [385] 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. 178. [386] Ombudsman’s Office (Venezuela). Informe anual 2008 Annual Report, 2008, Caracas, 2009, pp. 96 et seq. [387] UNICEF – Chile, “Principales nudos problemáticos de los centros privativos de libertad para adolescentes y secciones juveniles” The Principal Problems at Adolescent Detention Centers and Juvenile Sections, in: Universidad Diego Portales, Informe anual sobre derechos humanos en Chile, 2008 Annual Report on Human Rights in Chile, 2008, pp. 124 et seq. [388] DNI, Diagnóstico regional sobre las condiciones de detención de las personas adolescentes en las cárceles de Centroamérica Regional study on detention conditions for adolescents in Central American prisons, 2004. Available at http://www.dnicostarica.org/wordpress/wp-content/uploads/pdf/violencia_juvenil/Carceles.pdf. [389] Ombudsman’s Office-UNICEF (Panama), Monitoreo de Violencia en Centros de Custodia y de Cumplimiento, 2008, p. 10.
[390]
Committee on The Rights of the Child, Consideration of Reports
submitted by States Parties under Article 44 of the Convention,
Concluding observations: Guatemala, CRC/C/GTM/CO/3-4, October
25, 2010, [391] OMCT, CENIDH, Alianza de Centros de Mujeres, Red de Mujeres contra la violencia and CODENI, Violations of Human Rights in Nicaragua, Shadow Report to the Human Rights Committee in Spanish only, October 2008, p. 45. [392] OMCT, Human Rights Violations in Honduras, Alternative Report Submitted to the United Nations Human Rights Committee, including the Committee’s Concluding Observations, October 2006, p. 96. [393] Report of the Independent Expert for the United Nations Study on Violence against Children, A/61/299, August 29, 2006, para. 54. [394] Report of the Independent Expert for the United Nations Study on Violence against Children, A/61/299, August 29, 2006, paras. 180 et seq. [395] DNI, Diagnóstico regional sobre las condiciones de detención de las personas adolescentes en las cárceles de Centroamérica Regional study on detention conditions for adolescents in Central American prisons, 2004, p. 73. Available at http://www.dnicostarica.org/wordpress/wp-content/uploads/pdf/violencia_juvenil/Carceles.pdf. [396] ANCED – Associação Nacional dos Centros de Defesa da Criança e do Adolescente National Association of Juvenile Protection Centers, Análise sobre os directos da criança e do adolescente no Brasil: relatório preliminar da ANCED Analysis of the rights of children and adolescents in Brazil, ANCED’s preliminary report, San Paulo, 2009, p. 277. [397] Report of the Independent Expert for the United Nations Study on Violence against Children, A/61/299, August 29, 2006, para. 106. [398] Human Rights Watch - American Civil Liberties Union, Custody and Control, Conditions of Confinement in New York’s Juvenile Prisons for Girls, September 2006. [399] OMCT, Human Rights Violations in Honduras, Alternative Report Submitted to the United Nations Human Rights Committee, including the Committee’s Concluding Observations, October 2006, p. 95. [400] DNI, Diagnóstico regional sobre las condiciones de detención de las personas adolescentes en las cárceles de Centroamérica Regional study on detention conditions for adolescents in Central American prisons, 2009, p. 79. [401] Committee on the Rights of the Child, General Comment No. 10, Children’s rights in juvenile justice, CRC/C/GC/10, 25 April 2007, para. 40. [402] Havana Rules, Rule 65; IACHR, Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas. Document Approved by the Commission during its 131st regular period of sessions, held from March 3-14, 2008, Principle XXIII.2; United Nations, Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990; and Code of Conduct for Law Enforcement Officials, Article 3. [403] I/A Court H.R., Matter of Monagas Judicial Confinement Center (“La Pica”). Provisional Measures. Order of the Inter-American Court of Human Rights of July 3, 2007. [404] IACHR, Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas. Document Approved by the Commission during its 131st regular period of sessions, held from March 3-14, 2008, principle IX.3. [405] UNICEF – Chile, “Principales nudos problemáticos de los centros privativos de libertad para adolescentes y secciones juveniles” The Principal Problems at Adolescent Detention Centers and Juvenile Sections, in: Universidad Diego Portales, Informe anual sobre derechos humanos en Chile, 2008 Annual Report on Human Rights in Chile, 2008,” p. 24 et seq.
[406]
Committee on the Rights of the Child, Consideration of Reports
submitted by States Parties under Article 44 of the Convention,
Concluding observations: Nicaragua, CRC/C/15/Add.265, 21 September
2005, [407] I/A Court H.R., Matter of the Children Deprived of Liberty in the “Complexo do Tatuapé” of FEBEM. Provisional Measures. Order of the Inter-American Court of Human Rights of July 4, 2006. [408] Committee on The Rights of the Child, Consideration of Reports submitted by States Parties under Article 44 of the Convention, Concluding observations: Honduras, CRC/C/HND/CO/3, May 2, 2007, para. 80. [409] General Comment No. 8 of the el Committee on the Rights of the Children defines corporal punishment as any punishment in which physical force is used and intended to cause some degree of pain or discomfort, however light. Committee on the Rights of the Child, General Comment No. 8, The right of the child to protection from corporal punishment and other cruel and degrading forms of punishment, (inter alia, Article 19, Article 28.2 and Article 37) CRC/C/GC/8, 2 March 2007, para. 11. [410] Convention on the Rights of the Children, Articles 19 and 37; Havana Rules, Rules 66 and 67; Beijing Rules, Rule 17.3; Riyadh Guidelines, guideline 54; and Guidelines for action on children in the criminal justice system, guideline 18. [411] Havana Rules, Rule 67. In relation to the prohibition of collective punishments: IACHR, Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas. Document Approved by the Commission during its 131st regular period of sessions, held from March 3-14, 2008, principle XXII.4. [412] Standard Minimum Rules for the Treatment of Prisoners, Adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Geneva in 1955, and approved by the Economic and Social Council by its resolutions 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977, Rule 30.2. No prisoner shall be punished unless he has been informed of the offence alleged against him and given a proper opportunity of presenting his defense. The competent authority shall conduct a thorough examination of the case. [413] IACHR, Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas. Document Approved by the Commission during its 131st regular period of sessions, held from March 3-14, 2008, Principle II, in fine and XXII. [414] Cf. European Rules for juvenile offenders subject to sanctions or measures, Rule 94.1 et seq. [415] IACHR. Report on Corporal Punishment and Human Rights of Children and Adolescents, OEA/Ser.L/V/II.135, August 5, 2009, para. 65. In the same sense: European Rules for juvenile offenders subject to sanctions of measures, para. 7: “Sanctions or measures shall not humiliate or degrade the juveniles subject to them.” [416] IACHR. Report on Corporal Punishment and Human Rights of Children and Adolescents, OEA/Ser.L/V/II.135, August 5, 2009, para. 31. [417] Committee on the Rights of the Child, General Comment No. 8, The right of the child to protection from corporal punishment and other cruel and degrading forms of punishment, (inter alia, Article 19, Article 28.2 and Article 37), CRC/C/GC/8, 2 March 2007, para. 21. [418] IACHR, Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas. Document Approved by the Commission during its 131st regular period of sessions, held from March 3-14, 2008, principle XXII.3. [419] Committee on the Rights of the Child, General Comment No. 10, Children’s rights in juvenile justice, CRC/C/GC/10, 25 April 2007, para. 89. [420] At the same time, a disciplinary measure consisting of up to five days in “solitary confinement” is allowed under some rules such as Decree 553 of 2001, which contains the Regulations for the Juvenile Sections of the Civil Police and Regulations on Juvenile Cases and Care Facilities, contained in Decree 730 of 1996. [421] OMCT – OPCION, Derechos de los niños en Chile Informe Alternativo al Comité de los Derechos del Niño de las Naciones Unidas sobre la aplicación de la Convención sobre los Derechos del Niño en Chile, 2007 The Rights of Children in Chile, Alternative Report to the United Nations Committee on the Rights of the Child concerning Application of the Convention on the Rights of the Child in Chile, 2007, p. 74. [422] Universidad Diego Portales, Informe de Derechos Humanos 2006, 2006 Human Rights Report and OMCT – OPCION, Derechos de los niños en Chile Informe Alternativo al Comité de los Derechos del Niño de las Naciones Unidas sobre la aplicación de la Convención sobre los Derechos del Niño en Chile The Rights of Children in Chile, Alternative Report to the United Nations Committee on the Rights of the Child concerning application of the Convention on the Rights of the Child in Chile, 2007, 2007. [423] OMCT, Apoyo a víctimas pro recuperación emocional, Comisión Colombiana de Juristas, and the Fundación Comité de Solidaridad con Presos Políticos, State Violence in Colombia, An Alternative Report submitted to the United Nations Committee against Torture, 2003, citing the Ombudsman’s Office, Children and Their Rights, Bulletin No. 6, Bogotá, June 2000, p. 9. [424] The details can be accessed in the following site http://www.crin.org/resources/infoDetail.asp?ID=20232&flag=news. [425] Office of the Children’s Advocate (Jamaica), Annual Report 2007/2008, p. 28. [426] Beijing Rules, Rules 21.1 and 21.2: 21.1 Records of juvenile offenders shall be kept strictly confidential and closed to third parties. Access to such records shall be limited to persons directly concerned with the disposition of the case at hand or other duly authorized persons. 21.2 Records of juvenile offenders shall not be used in adult proceedings in subsequent cases involving the same offender. [427] Committee on the Rights of the Child, General Comment No. 10, Children’s rights in juvenile justice, CRC/C/GC/10, 25 April 2007, para. 67. |
