585. One of the main weaknesses of juvenile justice systems in the hemisphere is that they do not offer effective means of filing complaints of violations alleged to have occurred at the various stages of juvenile justice, from the time the police intervene up through execution of sentence.  Furthermore, in those States that have ways to file complaints, they are frequently not subject to the kind of rapid, serious and effective investigation that the situation requires; as a result, those responsible for violating the rights of accused or convicted children do not face criminal, civil or administrative sanctions.  Experts have observed that this creates “a culture of impunity and tolerance of violence against children.”[428]


586. But apart from systems for filing complaints, the Commission believes that independent mechanisms to oversee and monitor the juvenile justice systems are needed.  Oversight and monitoring systems, coupled with record systems that organize the data available on juvenile justice, will enable periodic evaluation of how the juvenile justice system is operating; make it possible to correct those areas that open the door to violations of children’s rights, and to craft public policy on the subject.


587. The Commission will now examine these points as a function of the States’ obligation to prevent, investigate, punish and redress any violations of children’s human rights that occur within their jurisdiction.


A.        Systems for Compiling Information and for Crafting Juvenile Justice Policy


588. It is vital that States prepare information and indicators concerning their juvenile justice systems, with a view to improving their operation and management and allowing adequate supervision.  Systematic compilation of data on the juvenile justice system is an essential tool for planning, formulating and evaluating public policy on the subject.  It is therefore advisable that States make use of the documents developed by United Nations bodies, so that the criteria and indicators therein established can be used to properly examine the information compiled in connection with juvenile justice.  The United Nations Economic and Social Council has recommended that systems be established to compile data and information on juvenile justice with respect to children in conflict with the law, using the Manual for the Measurement of Juvenile Justice Indicators.[429]


589. This Manual features quantitative indicators and indicators on public policy.  The former include indicators as to the number of children arrested, detained, detained pre-sentence and then sentenced; the length of the pre-sentence detention, and the duration of the custodial sentences; the use of alternative, non-custodial sentences; the number of children who died while in the State’s custody; the percentage of children not separated from the adult population when in detention; the frequency of family contact; post-release assistance, and other indicators.  The public policy indicators refer to the existence of a system that guarantees regular inspection of places of detention; the frequency of those inspections; the existence of systems enabling custodial children to file complaints; the existence of a specialized juvenile justice system and the existence of a national plan to prevent violation of the rights of children in the juvenile justice system.


590. The questionnaire that the States were asked to answer in preparation for this report focused heavily on these indicators.  However, the information received in response to a number of questions was scant or nonexistent.  This would suggest that much of the region still does not have effective systems for compiling data on the juvenile justice system based on those indicators.


591. Civil society organizations that answered the questionnaire, and the experts invited to the meetings the Commission held in preparation for this report, told the Commission how very difficult it is to find this information; the main problem is that the State services are not centralized under one umbrella.  As dispersed as these services are, it is difficult for any one of them to evaluate the system’s efficacy and come up with ideas on how to improve it.  In this regard, the Committee on the Rights of the Child has recommended periodic evaluation, by independent academic institutions, of the workings of the juvenile justice system in practice.[430]  The Court, too, has held that:


... the State must protect and respect the functions that can be exercised by non-governmental organizations and other groups or individuals defending the human rights and fundamental liberties of the people deprived of liberty, as these constitute a positive and supplementary contribution to the efforts made by the State[431].


592. When compiling this information and evaluating their juvenile justice systems, States must bear in mind Article 12 of the CRC, from which one can infer that children who have had or are having contact with the juvenile justice system are key actors when the time comes to evaluate and investigate the workings of the system.  Therefore, their right to be heard and to express their opinions freely must be preserved.[432]  Any investigation must respect the privacy of information pertaining to the children and comply with domestic and international norms on confidentiality of information.  


593. From the information compiled in preparing this report, the Commission observes that in general, the juvenile justice systems in the region are separate and apart from the rest of the body of public policy where children and adolescents are concerned.  One also finds that a variety of institutions –both public and private and answerable to various authorities and ministries- are entrusted with the care of children consigned to the juvenile justice system, which complicates centralized data gathering. The Commission is also concerned by the fact that only four States were able to provided information on the budget of the specialized juvenile justice system,[433] which suggests a lack of transparency regarding the funds earmarked for juvenile justice.


594. The Commission would urge the States to strengthen their systems for producing information and indicators on the juvenile justice system, with a view to improving its operation, allowing adequate oversight of it, and developing public policies that protect the rights of children in the juvenile justice system.  The Commission is urging the States to set up ways in which children can participate in crafting the public policies that affect them.


B.        Mechanisms for Supervising and Monitoring the Juvenile Justice System


595. As regards information gathering and indicators on the juvenile justice system, States have a duty to establish the supervision and monitoring mechanisms necessary to evaluate the system periodically.  The evaluation must look at every aspect of the juvenile justice system, including:  the intervention of the police; the conduct of judges; the performance of those officials charged with carrying out the custodial and non-custodial measures and those tasked with tracking the children subsequent to their release; the efficacy of programs established to ensure that the children have contact with their families and community, and to ease the reintegration of children deprived of their liberty into their communities, the operation of the centers in which custodial sentences are served, and other matters.


596. One of the most important mechanisms is a regular system of visits to, and inspections of, those centers in which children deprived of their liberty are serving their sentences.  These inspections should be done by independent institutions.  Such visits and inspections should be in addition to the evaluation that the State’s administrative and judicial authorities carry out.  The inspections should serve as an opportunity to periodically check detention conditions and the physical and emotional condition of the children deprived of their liberty.


597. Rule 14 of the Havana Rules provides the following in this regard:


The protection of the individual rights of juveniles with special regard to the legality of the execution of the detention measures shall be ensured by the competent authority, while the objectives of social integration should be secured by regular inspections and other means of control carried out, according to international standards, national laws and regulations, by a duly constituted body authorized to visit the juveniles and not belonging to the detention facility.


598. For its part, the Committee on the Rights of the Child has observed that:


Independent and qualified inspectors should be empowered to conduct inspections on a regular basis and to undertake unannounced inspections on their own initiative; they should place special emphasis on holding conversations with children in the facilities, in a confidential setting[434].


599. The visits made by the independent supervision and monitoring agencies should be done on a regular basis and without prior notification.  States must make certain that these agencies are able, inter alia, to conduct confidential interviews with the children deprived of their liberty, or with officials and staff of the custodial institution; have access to all the center’s facilities; and review all existing documentation.  The teams should be composed of professionals from various disciplines and should always include a qualified physician capable of evaluating the physical environment, the medical services and all other aspects that affect the children’s physical and mental health.[435]  The findings of the supervision and monitoring by independent agencies should be made public, and some procedure should be in place to follow up on the recommendations.  The visiting team should be able, inter alia, to conduct confidential interviews with the children, speak with prison personnel, and have access to all existing documents and all the facilities at the center.  Rule 72 of the Havana Rules states that:


Qualified inspectors or an equivalent duly constituted authority not belonging to the administration of the facility should be empowered to conduct inspections on a regular basis and to undertake unannounced inspections on their own initiative, and should enjoy full guarantees of independence in the exercise of this function. Inspectors should have unrestricted access to all persons employed by or working in any facility where juveniles are or may be deprived of their liberty, to all juveniles and to all records of such facilities[436].


600. From the member States’ answers to the Commission’s questionnaire, it is obvious that mechanisms for periodic and independent supervision of the juvenile detention facilities do not exist in the region.  While the majority of States answered that they do have such mechanisms, what they describe does not in fact fit the minimum standards that the Commission has described in these paragraphs.  Furthermore, the information received by the IACHR concerning the countries that claim to have independent oversight mechanisms raises real doubts about how really independent these agencies or oversight committees are.  Furthermore, the information received suggests that this type of independent mechanism is not adequately funded or staffed to perform the difficult function with which it is tasked.


601. Another essential tool to be able to evaluate and monitor a juvenile justice system is a procedure by which to file complaints about the way the system functions.  As previously observed, these complaint procedures must be there for all phases of the system, from the time the alleged offender is in conflict with criminal law and is tried, to the time he or she serves his or her sentence and returns to his or her community.  Procedures for investigating unlawful or arbitrary detentions, where the child is in even greater peril, are particularly important.


602. The Court has observed that children and their parents or guardians must have effective resources to challenge arbitrary detentions.[437]  The Commission, for its part, has held that every detained person has a right to file a complaint alleging acts of torture, prison violence, corporal punishment, cruel, inhuman or degrading treatment or punishment, and to protest the detention or incarceration conditions, the lack of medical or psychological attention, and a lack of adequate food.[438]  The Committee on the Rights of the Child has observed that:


Every child should have the right to make requests or complaints, without censorship as to the substance, to the central administration, the judicial authority or other proper independent authority, and to be informed of the response without delay; children need to know about and have easy access to these mechanisms[439].


603. The independent expert for the United Nations study on violence against children also brought up the need to establish:


... well-publicized, confidential and accessible mechanisms for children, their representatives and others to report violence against children.


All children, including those in care and justice institutions, should be aware of the existence of mechanisms of complaint. Mechanisms such as telephone help lines, through which children can report abuse, speak to a trained counselor in confidence and ask for support and advice should be established and the creation of other ways of reporting violence through new technologies should be considered[440].


604. States must establish simple, effective procedures through which children and their parents or guardians can file complaints with the authorities in charge of the juvenile justice system concerning any aspect of the system’s intervention in the child’s life, particularly with regard to the measures ordered as sanctions.  States must take steps to ensure that these complaint systems are in place, and that children facing the criminal justice system and their parents or representatives are advised of these procedures.  Any decision taken on a complaint must be reasoned and well-founded.  Complainants must have the chance to appeal that decision to an independent and impartial authority.  The receiving institutions and other authorities must keep a record of the complaints and requests filed, and the corresponding decisions.  The complaint proceedings are to guarantee the child’s right to be heard, and to be assisted by counsel.[441]  To ensure a complainant’s safety, provision must be made for measures to protect him or her against possible reprisals; mechanisms should be in place to enable complaints and requests to be filed anonymously.  Furthermore, in order for these procedures to be considered effective, they must also involve a serious investigation into the complaint; where appropriate, criminal, civil or administrative responsibilities should be established.


605. From the information received in the process of preparing this report, including the States’ answers to the Commission’s questionnaire, one can safely say that in most States of the region, no complaint and petition systems are in place that meet the standards described in this section.  Furthermore, the information received indicates that very few complaints are filed when one considers the incidence of abuse and violations within the juvenile justice systems.  This is likely due to the fact that people are unaware of the resources available, or to the fear that sets in when the time comes to file a complaint.  The information also shows that sanctions are rarely ordered when complaints are filed, which suggests that the way in which these systems have been implemented has made them relatively ineffective.


606. Judicial oversight of the juvenile justice system is also essential, especially in the case of children deprived of their liberty or subject to sanctions or measures. Establishing sentence-enforcement courts or assigning oversight functions to the case judges is vital.  The creation of these jurisdictional bodies is advisable, which should have the authority to control and monitor sentence enforcement and resolve any type of complaint or claim filed by the sanctioned juvenile, his or her attorney, family members, or any other person.


607. In addition to the mechanisms, systems and procedures described above, the Commission is urging the member States to ratify the Optional Protocol to the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.  Under this instrument, States Parties are required to establish a national preventive mechanism; the Protocol also provides for the establishment of a Subcommittee for Prevention at the international level.  Both the national preventive mechanism and the Subcommittee for Prevention will visit prisons and detention facilities in the State in order to better protect persons deprived of their liberty.


C.     Prevention, Investigation, Prosecution, Punishment and Reparations in cases of Violations of the Rights of Children and Adolescents Accused of Violating the Law


608. Apart from the investigations and punishment that follow as a result of the independent oversight mechanisms, or complaint mechanisms to which the Commission alluded in this section of the report, the member States should be reminded of their obligation to act, on their own initiative, to prevent, investigate, prosecute, punish and redress any violation of the human rights of children facing the juvenile justice system.  Thus, for example, in those facilities in which sentences are served, records must be kept of incidents of violence, the use of force, injuries, deaths and any other presumed violation of the children’s rights that occurs while they are serving their custodial sentence,[442] and all these cases should be prosecuted, and the proper sanctions enforced.


609. In keeping with the jurisprudence of the Inter-American Court and the Inter-American Commission, States must guarantee a serious, impartial and effective investigation, conducted without delay and at the States’ initiative, into alleged violations of human rights.  The Commission believes it is important that these investigations actually uncover possible discrimination in violations of children’s rights.


610. As for sanctions, the Commission concurs with the report of the independent expert for the United Nations study on violence against children, on the need to establish appropriate sanctions for persons convicted of violating the rights of children, which should include: criminal sanctions, civil sanctions, including pecuniary and non-pecuniary damages, and other measures that help effect change in the institutions; administrative sanctions (such as revoking licenses, imposing fines or closing the institution); professional sanctions (such as a notation in the staff member’s file, his or her dismissal or a ban preventing that person from working with children).[443]


611. States must change the way things are done so as to avoid a repetition of the conduct that elicited the complaint.  Children who have been victims of violence or violations of their rights must receive the proper care, support and appropriate compensation.  In the case of minority children, whose rights have been systematically denied, collective forms of redress may be necessary, particularly when the violation was the result of government policy.


612. In the final analysis, the States must act in accordance with the jurisprudence constante of the Inter-American Court and the Inter-American Commission with respect to Article 1(1) of the American Convention, which establishes their duty to prevent, investigate and punish any violation of the rights recognized in the Convention, and, if possible, attempt to restore the right violated and provide compensation, as warranted, for damages resulting from the violation.[444]  States must not only refrain from engaging in practices that violate human rights, but must also demand that all positive measures be taken to protect and preserve those rights.  This duty includes the adoption of the legislative, administrative and judicial measures necessary to protect human rights.


613. The Commission would therefore remind the States of their obligation to prevent, investigate, punish and redress violations of the rights of children that occur at any stage in the juvenile criminal justice process.  They are also reminded that those rights include those pertaining to the special protection to which children are entitled under Article 19 of the American Convention and Article VII of the American Declaration, as well as all those contained in the international corpus juris.

[ Table of Contents | Previous | Next ]

[428] Report of the Independent Expert for the United Nations Study on Violence against Children, A/61/299, August 29, 2006, para. 54.

  [429] United Nations Commission on Crime Prevention and Criminal Justice, Economic and Social Council, Use and Application of United Nations Standards and Norms in Crime Prevention and Criminal Justice E/CN.15/2009/L.13/Rev.1, April 24, 2009, p. 7 (in reference to the “Manual for the Measurement of Juvenile Justice Indicators” (2006), available at http://www.unodc.org/pdf/criminal_justice/06-55616_ebook.pdf).

[430] 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. 98 and 99.

[431] 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, point seventeen.

[432] 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. 12 and 99.

[433] Colombia, Costa Rica, the Dominican Republic and El Salvador.

[434] 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; General Comment No. 8, The right of the child to protection from corporal punishment and other cruel and degrading forms of punishment, CRC/C/GC/8, 2 March 2007, para. 43; 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 XXIV.

[435] Havana Rules, Rules 14, 72 and 73; Guidelines for Action on Children in the Criminal Justice System, recommended by Resolution 1997/30 of the Economic and Social Council on July 21, 1997, Guideline 21.

[436] See also, Guidelines for Action on Children in the Criminal Justice System, recommended in Economic and Social Council Resolution 1997/30, July 21, 1997, para. 21.

[437] I/A Court H.R., Case of Bulacio v. Argentina.  Merits, Reparations, Costs Judgment of September 18, 2003.  Series C No. 100, para. 127.

[438] 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, March 3 to 14, 2008, Principle V.

[439] 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. In the same sense: Havana Rules, Rules 75 and 76.

[440] Report of the Independent Expert for the United Nations Study on Violence against Children, A/61/299, August 29, 2006, para. 104.

[441] Havana Rules, Rules 25 and 78.

[442] Cf. Report of the Independent Expert for the United Nations Study on Violence against Children, A/61/299, August 29, 2006, para. 107.

[443] Report of the Independent Expert for the United Nations Study on Violence against Children, A/61/299, August 29, 2006, p. 213.

[444] I/A Court H.R., Case of Velásquez Rodríguez, Merits.  Judgment of July 29, 1988, Series C No. 4,
para. 166.