OEA/Ser.L/V/II.110
Doc.52
9 March 2001
Original:  Spanish

THIRD REPORT ON THE SITUATION OF HUMAN RIGHTS IN PARAGUAY

CHAPTER VII 

THE RIGHTS OF CHILDREN 

          A.          INTRODUCTION 

          1.          In recent years, the Inter-American Commission has initiated studies in specific thematic areas that it considers essential for the promotion and protection of human rights.  In this context, during its 100th session, the Commission decided to name a Rapporteur on the Rights of the Child, for the purpose of studying and promoting activities that make it possible to evaluate the situation the rights of the child in the countries of the Americas, and to propose that the member States adopt effective measures.^[1]

          2.          Political instability and economic crises have major impacts on all social sectors in the countries of the Americas.  This is particularly true with respect to children, who often are not old enough nor sufficiently independent to exercise their rights on their own.

          3.          The Convention on the Rights of the Child establishes in its preamble that “the child should be fully prepared to live an individual life in society, and brought up in the spirit of the ideals proclaimed in the Charter of the United Nations, and in particular in the spirit of peace, dignity, tolerance, freedom, equality and solidarity.”

          4.          This implies that the States should not only recognize the rights of children protected in international instruments, and promote respect for them, but also, and above all, they should recognize and guarantee the juridical personality of the child and the treatment of children as the subjects of rights.  In this context, the Commission proceeds to analyze several aspects related to the situation of children in Paraguay, mindful of the obligations of the State in light of international human rights law.

          B.          LEGAL FRAMEWORK

          5.          At the international level, there are human rights instruments that refer specifically to the rights of children, to which Paraguay is a party, and that are, accordingly, current law in Paraguay.  Nonetheless, the domestic laws have not incorporated the provisions of those treaties, which makes it difficult, in practice, for the judicial and administrative authorities to apply them, in violation of the international commitments assumed by Paraguay.

          6.          The American Convention on Human Rights establishes at Article 19 that

Every minor child has the right to the measures of protection required by his condition as a minor on the part of his family, society, and the state.

          7.          In addition, the American Declaration addresses the rights of children at Article VII. It provides:

All women, during pregnancy and the nursing period, and all children have the right to special protection, care and aid.

          8.          Finally, within the inter-American system we also find the provisions of the Protocol of San Salvador, whose Article 16 established the rights of children in the following terms:

Every child, whatever his parentage, has the right to the protection that his status as a minor requires from his family, society and the State. Every child has the right to grow under the protection and responsibility of his parents; save in exceptional, judicially‑recognized circumstances, a child of young age ought not to be separated from his mother. Every child has the right to free and compulsory education, at least in the elementary phase, and to continue his training at higher levels of the educational system.

          9.          In addition to the provisions of the American Convention and American Declaration, Paraguay has been a party to the Convention on the Rights of the Child since 1990.  Upon ratifying this Convention, Paraguay assumed the obligation to bring its legislation into line with its terms.  This is particularly important in relation to the Convention on the Rights of the Child, as it proposes a substantial change in approaching the rights of children (see infra).

          10.          In the domestic sphere, the Paraguayan Constitution provides specific guarantees for children, at its Article 54, in the following terms:

Families, society, and the State have the obligation of guaranteeing a child the right to a harmonious, comprehensive development, as well as the right to fully exercise his rights by protecting him against abandonment, undernourishment, violence, abuse, trafficking, or exploitation. Anyone can demand that a competent authority comply with these guarantees and punish those who fail to comply with them. In case of conflict, the rights of the child shall prevail.

          11.          As already noted, the Convention on the Rights of the Child works a substantial change in the manner of addressing children.  This transformation is known as replacing the “irregular situation  doctrine” by the “comprehensive protection doctrine,” in other words, moving from a conception of  “minors” as the object of protection and repression to considering children and youths as full subjects at law.^[2]  This conceptual change requires a change in the legislation of all countries party to the treaty, as well as public policy initiatives aimed at achieving effective recognition of children as having this new status as subjects at law.

          12.          In the Americas, this process of adapting domestic legislation to the Convention on the Rights of the Child has seen different countries adopting different approaches, though it has yet to have sufficient impact in concrete terms of recognition and enjoyment of the rights recognized in the Convention.^[3] In Paraguay, for example, the old Code of the Minor is still in force; it reflects the above-noted “irregular situation” doctrine.  As a result, laws less favorable to children are applied, entailing violation of the treaty ratified by Paraguay, which may well trigger the international responsibility of the State.  Thus, adapting the domestic legislation is one of the obligations assumed by the State upon ratifying the Convention on the Rights of the Child.

          13.          In Paraguay there is a Code on Childhood and Adolescence that has been approved but is pending enactment.  The original bill, promoted by sectors of civil society, in particular non-governmental organizations, and by government agencies, has undergone some changes, but still represents a major advance in terms of the Convention on the Rights of the Child.  Passage of the Code was part of the government program of the current president of Paraguay, Luis González Macchi.^[4] In addition, during the Commission’s on-site visit in July 1999, the Government undertook to support its adoption.  As of February 2001, the Code had been passed by Congress but not yet enacted.

C.      CHILDREN AND ADOLESCENTS AND THE CRIMINAL LAW - PRISON SYSTEM

          14.          One of the most serious consequences of the “irregular situation” doctrine is in the area of criminal law.  In effect, judges have wide discretion, which in practice often translates into violations of the rights of children who break the criminal law. A report from February 2000, prepared by the Department of Procedural Guarantees for the Office of the Attorney General, illustrates the situation in this regard.^[5] The report refers to the procedural situation of children and adolescents who are held at the correctional facility known as the “Panchito López” center, and concludes that most of the cases reflect judicial “mismanagement.”^[6]

          15.          One example mentioned in that report refers to the case of one of the detained youths who died in a fire there (see infra) who had sought conditional release 15 days prior to the tragedy.  The studies showed that he was to be released, but that delays in implementing the decision led to his death.

          16.          In early February 2000, there was a fire at the “Panchito López” correctional facility that resulted in the deaths of seven youths; 28 suffered injuries.  The Government then ordered the transfer of the remaining detainees to a maximum-security prison for adults.  This sparked a protest by the detainees and their families, which led to another fire, on February 18, 2000.  As a result of this second fire, 16 prisoners were injured and 72 of the inmates at the correctional facility were ultimately taken to the maximum-security prison at Minas, Emboscada.

          17.          During the on-site visit, the Commission visited the “Panchito López” correctional facility.^[7] Meetings were held with the prison authorities and with some of the inmates. This correctional facility was, like many of the other prisons in Paraguay, overpopulated; the youths held there were subjected to extreme and unacceptable overcrowding. This was observed by the Commission during its visit.  While at that time the Commission was told that some of the youths held there would be transferred to a new establishment, and in effect, in an act that the IACHR highly values, that partial transfer took place after the fires, when a large number of inmates were transferred to a new “Integral Education Center,” the situation has not been resolved, as the “Panchito López” facility continues to operate, and youths and children are still held there.

          18.          In effect, the Commission was informed that the youths transferred to the maximum-security prison are not living in adequate conditions: the inmates have protested being moved far away from their families, and are confined to their cells during all but two hours a day, one for recreation and one for washing and eating.  In addition, it has been reported that some of the youths transferred have been tortured and placed in cells with adults.^[8] The Commission reminds the Paraguayan State that the deprivation of liberty of minors should be used only as a last resort, under the Convention on the Rights of the Child, and should be implemented without infringing on other rights enjoyed by persons subject to detention.  Accordingly, the State should adopt the urgent measures needed to bring this situation into line with legal requirements.

          19.          Furthermore, Paraguayan law subjects all children to the regular criminal law from the age of 14.^[9]  In this respect, the Convention on the Rights of the Child provides specifically that:

States Parties shall seek to promote the establishment of laws, procedures, authorities and institutions specifically applicable to children alleged as, accused of, or recognized as having infringed the criminal law....  ^[10]

          20.          The draft Children’s Code proposes to set the minimum age for determining criminal liability at 18 years.  The bill also includes the Juvenile Criminal Act, which will be a fundamental tool for initiating the reform of the juvenile criminal justice system.

          D.          STREET CHILDREN

          21.          While there are no precise statistics, it is estimated that in Greater Asunción,^[11] some 15,000 children, boys and girls, work in the streets in various occupations, ranging from beggar to street vendor.^[12] In addition to the children who work in the streets, there are some 200 children who live in the streets, and have nowhere to go to sleep at night.

          22.          One sector at special risk, and which has grown at an alarming pace in recent years, are the persons referred to as “street babies.”  These babies, ranging in age from newborn to two years, are carried by other children who stay with them or by their mothers at work, or simply begging for alms.

          23.          The Convention on the Rights of the Child recognizes the right of all children to “a standard of living adequate for the child's physical, mental, spiritual, moral and social development,”^[13] which clearly is not possible if the child is forced to live or work in the street. It is a duty of the state, and of the family, to provide for children’s needs, to ensure they are not pushed into the street.  In this regard, the Commission has held on another occasion that the state:

has the obligation to intervene to satisfy the basic needs of the child, when his family is not in a condition to do so, before the child is forced to go out into the street because he does not have a roof over his head or to seek money, through work, theft, or begging in order to feed himself. ^[14]

          24.          While the State has sought to promote several programs, such as the CENADI (National Center for the Defense of the Rights of the Child), they have not sufficed to provide solutions to the problems posed.  From the information received by the Commission, one can conclude that the policies of the State have not been sufficient to provide for children who are unable to have the support of their families, in violation of its international commitments.

          E.          CHILD LABOR

          25.          As a consequence of the widespread poverty, there has been an increase in the number of children who need to work to contribute to the sustenance of their families, and to be able to go to school.  The lack of control over child labor results in deficient working conditions for many children. Accordingly, many perform duties at night and in environments that are harmful to health.

          26.          In Paraguay there is a long tradition of children working within the family, in both rural and urban areas, to help with the family’s sustenance.  In such a situation, there is a relationship of dependency and learning in some cases. Nonetheless, in recent years this tradition has been changing progressively to the detriment of children, giving rise to a sustained increase in independent child labor in which boys and girls go out on their own to generate income on their own, which they then bring home.

          27.          The lack of control by the State also leads to situations in which there is no protection for these children’s rights.  For example, the fact of not considering work as part of the life of these children and adolescents means that their schooling fails to take account of their particular situation as both worker and student.

          28.          In 1999, the Ministry of Labor raided a bar and discovered children working there. While the Ministry of Labor, through different working groups, is endeavoring to bring local laws into line with the ILO provisions related to child labor, these working groups entrusted with this task do not have the participation of civil society representatives, particularly those organizations devoted to working on this specific issue.  Nor have the persons directly affected been included.

          29.          The Convention on the Rights of the Child guarantees the right of all children not to be subject to economic exploitation or to be engaged in hazardous work.^[15] In the context of a situation of poverty, the families who do not receive support from the State recur to the economic support of their children.  Nonetheless, the State’s obligation is to ensure that children not be exploited in such circumstances.  This requires progress in regulating such activities, imposing limits in terms of working hours and working conditions, as well as enforcement.  Similarly, measures are needed that bring the situation of child workers into line with their special situation, for example as regards their schoolwork, to ensure that they not have to drop out of school.

          F.          MISTREATMENT, EXPLOITATION, AND SEXUAL ABUSE

          30.          There is a lack of statistics related to child abuse and sexual abuse gap in Paraguay.  Nonetheless, the available information indicates that the number of cases continues to mount.  In 1999, the Paraguayan press reported numerous cases of abuse and deaths of babies.^[16] In addition, Paraguay lacks massive child abuse prevention campaigns at the national level.  A UNICEF study indicates that among the most marked failings of the system are the bureaucratization of the administrative procedures for looking into complaints, which is a disincentive to victims lodging such reports, and the lack of policies or programs, training, and investment in this area.

          31.          According to available information, more than half of the complaints of child abuse and sexual abuse involve children under 16 years of age.^[17] In addition, a non-governmental organization, Luna Nueva, has indicated that there is a steadily mounting demand for girls to be sexually exploited.^[18]

          32.          A UNICEF study revealed that of 210 cases of females working as prostitutes in Asunción in 1996, 136 were minors (65%). Many of these girls stated that they had to leave their homes due to mistreatment and abuse.  Most also said they had become involved in the sex trade by someone they did not know.  Clearly adults are to blame for the prostitution of these children and adolescents, adults who persuade them taking advantage of the children's needy situation, and their own economic power.  Nonetheless, thus far judicial proceedings have focused only on round-ups (raids at night clubs) that affect exclusively the victims of this exploitation, who are being prostituted, usually without any effort to investigate and punish the exploiters or procurers.

          33.          In addition, the current legislation makes it possible for the police, judges and prosecutors to take action to deprive the adolescent females of liberty; they are treated as criminals, not victims, and held in the special police station for women, until someone (normally the owner of the brothel) appears to claim them.

          34.          At the same time, girls have almost no chance of getting out of this situation.  In addition to humiliation attendant to the situation is the fact that 100% of the girls rescued from brothels have venereal diseases, 90% do not use protection against AIDS, and most are pregnant.^[19]

          35.          In this regard, the State is obligated under the Convention on the Rights of the Child to take “all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse....”^[20] According to the information that has reached the Commission, the State has not promoted such preventive measures, but only repressive measures aimed not at the persons responsible for those abuses, but at the victims.

          36.          Moreover, the same Convention provides that the State has a duty to adopt measures of protection that include establishing social programs to provide assistance to children, child care providers, and any other form of prevention, investigation, treatment, and observation with respect to abused children.^[21] The State’s obligations in this connection are clearly spelled out. Nonetheless, once again, the State has not met its obligation to foster these measures of protection in the face of such abuses.

G.          CHILD SOLDIERS

          37.          The Commission received information indicating that a large number of children under 18 years of age are performing military service in Paraguay, expressly contradicting Paraguayan laws that prohibit recruitment of children under 18 years of age.^[22] Even though the law provides that in exceptional circumstances the age for military service can be brought forward, for justified causes and with parents’ consent, this exception is not unusual, becoming practically a rule.

          38.          It is noted, in relation to the recruitment of children for compulsory military service, that in many cases recruitment following intimidation of the parents whose sons have a “good physique” for military service.  In April 2000, the Committee on Human Rights of the Chamber of Deputies, chaired by deputy Sonia de León, along with the Movement for Conscientious Objection, publicly denounced the psychological coercion used by the Armed Forces for purposes of recruitment in the city of Concepción.

          39.          In addition, there have been several deaths of soldiers who are minors in conditions that have not been clarified by the military or civilian courts.  On March 14, 1996, a complaint was lodged with the Commission for the death of a 15-year-old soldier who was recruited from his home before the minimum age necessary for military service.  According to the complaint, the youth was declared apt for military service, and was then subjected to excessive physical exercise inappropriate for his physical condition; and he was the victim of severe blows that caused his death.  The internal investigations led nowhere.  During the processing of this case before the Commission, meetings have been held between the petitioners and representatives of the State in which agreements have been reached that are being followed up on by the Commission.

          40.          The Inter-American Commission notes that children do not have the physical or emotional maturity to perform military service.  Accordingly, children are not fit for the military activities required of them, and so many collapse and die when, in a savage and authoritarian fashion they are pushed beyond their physical possibilities.  The Association of Relatives of Victims of Military Service (AFAVISEM) notes that from 1989 to 1999, a total of 102 child soldiers have died in Paraguay.

          41.          In addition to these cases, it has been reported that from December 1999 to March 2000, three youths under 18 years of age died in unclear circumstances, while performing military service.  In addition, from May to July 2000, five conscripts under 18 died, also in circumstances that have yet to be clarified.  In all cases, the investigation is in the hands of the military courts; in none of the cases have the facts been clarified at all.  In addition to these deaths, in 1998 two youths ages 14 and 15 disappeared while in military service.  To date, it has not been possible to determine the cause of their disappearance.  The judicial investigations have gone nowhere.  The Armed Forces argue that the two soldiers fled, and therefore are considered deserters under military law.

          42.          One case that received considerable publicity was that of Argentine child Pedro Antonio Centurión, whose mother reported that he was forcibly recruited by the Paraguayan Army when he was 13 years old, and died in a Paraguayan military barracks at age 14, in September 2000. Mrs. Cemproniana Centurión, the deceased child’s mother, stated that her son was virtually kidnapped from home at age 13, and when she protested they told her that he was “tall enough for the barracks.”  Six months after he was recruited, Pedro Antonio Centurión child died of a bullet wound to the head.  The bullet entered the upper part of the head and exited the lower part. The military said it was a suicide, and as a condition for turning over the corpse they made the child’s mother sign a document in which she agreed not undertook to have an autopsy performed.^[23] It was later reported that there was a falsified birth certificate according to which the Centurión child had both Paraguayan nationality and the required age (18 years) for the compulsory military service, and that almost 100 other soldiers detached to the same military barracks where child Pedro Antonio Centurión died^[24] are children whose birth certificates were also falsified, and that this was done “because they needed to fill the vacant posts at the barracks.”

          43.          The Commission notes that the Convention on the Rights of the Child expressly rules out military service for children under 15. Article 38(3) provides:

States Parties shall refrain from recruiting any person who has not attained the age of fifteen years into their armed forces. In recruiting among those persons who have attained the age of fifteen years but who have not attained the age of eighteen years, States Parties shall endeavor to give priority to those who are oldest.

          44.          The Convention not only sets the minimum age at 15 years, but also provides that persons under 18 years of age should not be recruited.  In addition, Paraguayan legislation establishes 18  as the minimum age for military service.  Both the American Convention^[25] and the Convention on the Rights of the Child^[26] contain provisions that establish the prevalence of any other normative instrument, domestic or international, binding on the State, that contains provisions that imply broader recognition of rights, or lesser restrictions on them.  This principle, known as the pro homine principle, obliges the State to apply the provision most favorable to the recognition of individual rights.  Pursuant to it, the Commission reminds Paraguay that under its legal system it is not possible to recruit persons under 18 years.  Moreover, bearing in mind that the international instruments do not draw any distinction, and by application of the same principle, this requirement cannot be met with the consent of the youth’s parents.

          H.          CHILDREN AND THE HEALTH SYSTEM

          45.          According to recent studies, at least 30% of the Paraguayan population is under the basic poverty line, up to 55% in rural areas.  Most affected are women and children.  Since the 1980s, the urban areas have displayed a certain stability as regards the percentage of population living in basic poverty, but there was been an increase in extreme poverty, from 15% to 21%.

          46.          The economic crisis has generated a clear deterioration in the public health system,^[27] and access to health services is increasingly costly in Paraguay. This situation, which affects the entire population, is even more serious in relation to children.  Special mention should be made of the Government’s efforts to provide free maternal-and-child care for childbirth and health care in the early years of life. Nonetheless, the bureaucracy and lack of resources make it difficult to fully implement this program.

          47.          Population growth is occurring at the expense of the most vulnerable sectors.  This is reflected, among other indices, in high maternal and infant mortality.  According to a report on this issue, 20 of every 100 maternal deaths in Paraguay are due to abortions; this is the highest such rate in the region.  In addition, the main victims are adolescents who had an unwanted pregnancy and little or no access to information and education on reproductive health and family planning.^[28]

          48.          In addition, Paraguay does not have programs or services that address the needs of the population of children with mental illness and special needs.  This situation worsened in 1999 due to the shutting down of services offered by both civil society and some state entities that suffered budget cutbacks.  As a result of this situation, many of the existing services were closed.

          I.          RECOMMENDATIONS

          49.          As a result of the foregoing analysis, the Commission recommends to the Paraguayan State that it:

1.       Move forward with the approval and prompt implementation of the Children’s Code.

2.       Comply with the provision of the International Convention on the Rights of the Child with respect to imprisonment as a last resort, and order the immediate creation of new center of detention in line with the international obligations assumed by the State.

3.       Immediately close the “Panchito López” correctional facility for minors.

4.       Foster public policies aimed at ensuring that there are no street children living in the street.

5.       Adopt the necessary provisions to ensure that the international and national legislation on child labor is not violated.  These include provisions on minimum ages for work, and also exclude certain types of work.

6.       Public policies and legislative policies should be implemented aimed at ensuring adequate treatment for the problem of the abuse and sexual exploitation of girls and adolescents, and those responsible for the abuse and sexual exploitation of girls, boys, and adolescents should be investigated and punished.  The sex trade in children not only offends the rights of the exploited girls, but also compromises Paraguay’s future.

7.       The current law that prohibits military service for persons under 18 years of age should be enforced, and the deaths of persons under 18 in the barracks should be investigated and punished.  The death of these children while performing military service illegally should not remain in impunity.

8.       Adequate health measures should be implemented to ensure equal access for all, in sufficient quantity and quality.