In Haiti, Guatemala, Nicaragua and the Dominican Republic, the minimum age of criminal responsibility is In Chile, Colombia, Paraguay and Uruguay, children can be held criminally responsible as from the age of According to the information obtained, at least one member state has lowered its minimum age of criminal responsibility for children and adolescents facing the juvenile justice system, thus deviating from the international trend. The Commission believes that these measures and initiatives are at odds with international standards on the subject and the principle of non-regressivity.
Cases where children under the minimum age of criminal responsibility engage in conduct criminalized by law, should not elicit a criminalization and punishment response but rather a socio-educational one in light of the best interests of the child, the corpus juris on the rights of children and due process guarantees. This type of scenario, however, is outside the scope of the juvenile justice system and therefore beyond the purview of this report.
Here, the Commission concurs with the position taken by the Committee on the Rights of the Child, which is that the system of two minimum ages is often not only confusing, but leaves much to the discretion of the court or judge and may result in discriminatory practices. The Commission is also particularly troubled by the fact that in some States of the region, an exception to the minimum age of criminal responsibility is made when the crime or crimes alleged to have been committed are serious in nature.
The Commission notes that the Committee on the Rights of the Child has also expressed its concern over the exceptions made to the minimum age principle when the crimes alleged to have been committed are serious offenses. The Commission is concerned by the fact that although they have set a minimum age of criminal responsibility under the juvenile criminal justice system, a number of member States still have laws, policies and practices that enable them to incarcerate children under the minimum age at which they can be held criminally responsible. This is also the position of the Committee on the Rights of the Child.
Member States must ensure that children who have not reached the minimum age of criminal responsibility are not prosecuted for their conduct, much less deprived of their liberty. The right to non-discrimination enshrined in Article 2 of the Convention on the Rights of the Child and the best interests principle in Article 3 1 are not compatible with the setting of an arbitrary age below 18 at which children could become subject to the criminal law, inevitably to their detriment.
The Commission does not believe that retribution is an appropriate element in a juvenile justice system, if the aims of reintegration and rehabilitation are to be fully utilized. The Commission notes as an example, that Mr. The Commission affirms the need for a new debate, but recognizes that this is a complex matter; removing children completely from the criminal justice system must neither absolve them of responsibility for their actions, nor deny them due process in the determination of whether allegations made against them are true.
Such a debate is beyond the scope of this report. But meanwhile the Commission strongly urges Member States to move progressively closer toward 18 the age at which children could be responsible under the juvenile justice system. General Principles of the Juvenile Justice System. In the case of children, their status presupposes that certain principles will be observed and guaranteed through the adoption of specific, special measures that ensure that children are able to exercise and enjoy their rights when they face the juvenile criminal justice system.
The Principle of Legality in Juvenile Justice. The Inter-American Court has held that both in the case of adults and in the case of persons under the age of 18, State action is justified:. Thus, the rule of law is ensured in this delicate area of relations between the person and the State . The principle of nullum crimen nulla poena sine lege praevia legality in criminal law, recognized in Article 9 of the American Convention, must apply to the juvenile criminal justice system.
The Court has stated the following on this principle:. The Court considers that crimes must be classified and described in precise and unambiguous language that narrowly defines the punishable offense, …. This means a clear definition of the criminalized conduct, establishing its elements and the factors that distinguish it from types of behavior that are either not punishable offences or are punishable but not with imprisonment.
Ambiguity in describing crimes creates doubts and the opportunity for abuse of power, particularly when it comes to ascertaining the criminal responsibility of individuals and punishing their criminal behavior with penalties that exact their toll on the things that are most precious, such as life and liberty. Laws … that fail to narrowly define the criminal behavior, violate the principle of nullum crimen nulla poena sine lege praevia recognized in Article 9 of the American Convention . Article 40 of the CRC expressly recognizes the principle of legality where it provides that no child shall be alleged as, accused of or recognized as having violated, a criminal law by reason of acts or omissions that were not prohibited by the juvenile justice system at the time of their commission.
Similarly, Guideline 56 of the Riyadh Guidelines provides that:. Furthermore, Article 7 of the American Convention states clearly that no one shall be deprived of his or her physical liberty except for the reasons and under the conditions established beforehand by the constitution of the state party concerned or by a law established pursuant thereto.
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When examining Article 7 of the American Convention, the Court has stated that there are material and formal requirements that must be observed when taking a measure or applying a penalty that deprives someone of his or her liberty:. The Commission considers that the practice of incarcerating a minor, not because he committed a criminalized offense but simply because he was abandoned by society or was at risk, or is an orphan or a vagrant, poses a grave threat to … children. The State cannot deprive of their freedom children who have committed no crime, without incurring international responsibility for the violation of their right to personal liberty Article 7 of the Convention.
Depriving a minor of his liberty unlawfully, even if it be for a criminalized offense, is a serious violation of human rights. The State cannot argue the need to protect the child as grounds for depriving him of his liberty or of any other rights inherent in his person. Minors cannot be punished because they are at risk, that is to say, that because they need to work to earn a living, or because they have no home and thus have to live on the streets.
Far from punishing minors for their supposed vagrancy, the State has a duty to prevent and rehabilitate and an obligation to provide them with adequate means for growth and self-fulfillment. The Court, for its part, has stated that:. Subjecting children and adolescents to the juvenile justice system or depriving them of their liberty for the mere fact of having had social or economic problems is clearly not a legitimate, objective or reasonable end to pursue.
The Inter-American Court has stated unequivocally that certain types of conduct have no place in a juvenile justice system:. It is unacceptable to include in this hypothesis the situation of minors who have not incurred in conduct defined by law as a crime, but who are at risk or endangered, due to destitution, abandonment, extreme poverty or disease, and even less so those others who simply behave differently from how the majority does, those who differ from the generally accepted patterns of behavior, who are involved in conflicts regarding adaptation to the family, school, or social milieu, generally, or who alienate themselves from the customs and values of their society.
The concept of crime committed by children or juvenile crime can only be applied to those who fall under the first aforementioned situation, that is, those who incur in conduct legally defined as a crime, not to those who are in the other situations. The Court has explicitly held that children requiring measures to protect their rights must not be subject to punitive treatment.
On the contrary, they require prompt and careful intervention on the part of well-equipped and well-staffed institutions in order to resolve their problems or mitigate their consequences. Therefore, in order for the juvenile justice system to apply, a child or adolescent at or above the minimum age of criminal responsibility and under age 18 must have committed an act that is already criminalized by law and that is a punishable offense.
In many member States, indigent children who resort to begging or who run away from home because of social problems and therefore need protection are subjected to the juvenile criminal justice system even though they have not violated any law. This is a violation of the principle of legality. Hence, depriving them of their liberty is also a violation of the principle of legality, recognized in Article 9 of the American Convention. The IACHR would remind the States that children and adolescents who are the victims of poverty, abuse, abandonment and neglect, and those suffering from disorders or learning disabilities or other health problems, cannot be deprived of their liberty or be made to face the juvenile criminal justice system when they have not violated any law; nor should children who have engaged in behavior that would not constitute violations of criminal law if committed by an adult.
The Commission reiterates that children coping with social or economic problems must be helped by the social services or child protection services, but not subjected to the juvenile justice system. Any action that affects them must be entirely lawful, objective and reasonable, and be relevant in both substance and form, serve the best interests of the child and abide by the procedures and guarantees that at all times enable verification of necessity, proportionality, suitability and legitimacy.
The Principle of Last Resort. Article 37 b of the Convention on the Rights of the Child provides that States parties shall ensure that no child is deprived of his or her liberty unlawfully or arbitrarily and that 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. This provision is an acknowledgement of the fact that children and adolescents are in the process of maturing and that States have an obligation to take special measures to protect them, as provided in Article 19 of the American Convention and Article VII of the American Declaration.
The principle of last resort, which is based on those articles, means that deprivation of liberty, whether for pretrial detention or as a sentence, must be a last resort - as must application of the juvenile justice system or adjudication. Obviously the often adverse consequences of prosecuting a person for violation of criminal laws, especially when it implies deprivation of liberty, are compounded when children or adolescents are involved, as they are still in the process of maturing.
On the matter of preventive detention, the Court has highlighted that detention is the most severe measure that can be applied to someone accused of violating the law, which is why it should be used only as a last resort, given the limits imposed by the right to the presumption of innocence and the principles of necessity and proportionality that are essential in a democratic society. The information the Commission has received reveals that within the region, the deprivation of liberty of children is the rule rather than the exception, and that the number of children placed in preventive detention is much higher than the number who actually go to trial to determine whether they have violated the law.
This means that the police authorities are detaining a much larger percentage of children without this necessarily meaning any further action in their case. Furthermore, detention is not confined to cases of flagrante delicto; instead, it is also used to deal with truancy, runaways, and street children, etc. Another issue related to the principle of last resort is regulation of the statute of limitations in the case of juvenile justice.
The Commission observes that the statute of limitations for criminal action is different in each State. For example, in Bolivia, the statute of limitations expires after four years in the case of crimes that carry a sentence of six or more years, after two years for those that carry a sentence of imprisonment of less than six years but more than two years, and six months for all other crimes. The Commission reiterates that the juvenile justice system — especially the deprivation of liberty of children - must be used only as a last resort and only by way of exception, and for as short a time as possible.
The Principle of Specialization. Article 5 5 of the American Convention on Human Rights clearly provides that children accused of violations of criminal law are to be subject to a specialized system of justice.
That article reads as follows:. Minors while subject to criminal proceedings shall be separated from adults and brought before specialized tribunals, as speedily as possible, so that they may be treated in accordance with their status as minors. Similarly, Article 40 3 of the Convention on the Rights of the Child provides 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 penal law.
For its part, the Court has held that one obvious consequence of dealing with matters that pertain to children in a different way, specifically matters involving unlawful conduct, is the establishment of specialized jurisdictional bodies to hear cases involving conduct defined as crimes and attributable to children, and a special procedure whereby these alleged violations of the law are heard. The Court has also explained that in a specialized criminal jurisdiction for children,  those who exercise authority at the various stages of trial and in the different phases of the administration of juvenile justice are to be especially trained and qualified in the human rights of the child and child psychology, in order to avoid any abuse of authority, and to ensure that the measures ordered in each case are suitable, necessary and proportional.
That specialization requires laws, procedures and institutions specifically for children, as well as special training for all those working in the juvenile justice system. These specialization requirements apply to the entire system and to all those who work within it, including non-legal personnel who advise the courts or who enforce the measures ordered by the courts, and the staff of the institutions in which children are deprived of their liberty.
The specialization requirements also apply to the police force if they have contact with children. For example, the information compiled by the Commission  reveals that in the United States, more than half of the States allow children aged 12 and above to be transferred to adult courts; in 22 States children, even as young as seven years old, can be tried and convicted in adult courts.
According to the information received, there are four principal transfer mechanisms. First, there are legal provisions under which certain violations of the law are automatically prosecuted in adult courts. Third, the prosecutor has discretionary authority to present cases in an adult court rather than a juvenile court.
In some States, like Antigua and Barbuda and Jamaica, children charged along with an adult are tried in an adult court rather than a juvenile court. For example, in Suriname, this can be done in the case of children between the ages of 16 and The Commission finds these practices disturbing. They not only deny accused children the protection of a specialized juvenile court, but also subject them to other grave consequences, such as the possibility that they might be sentenced as an adult or receive a tougher sentence than they would have received in a juvenile court.
In the United States, for example, although a child cannot be sentenced to death, in some States a child sentenced in an adult court faces the full range of other sentences available for adults, including life imprisonment.speedendselreamat.cf/handbook-of-risk-and-crisis-communication-routledge-communication.php
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This means that minors can receive the maximum penalties allowed under Article 80 of the Argentine Penal Code, namely imprisonment and confinement for life. The Commission observes that a number of member States have established separate juvenile justice systems for children who violate criminal laws. However, these systems are not necessarily specialized in practice. Furthermore, in most States, access to the specialized juvenile justice systems is limited, especially beyond the main cities.
The Commission notes that a number of positive initiatives have been undertaken with regard to the instruction and training for judges, prosecutors and defense attorneys who work with children in conflict with the law. According to the information received, even in those States that have specialized juvenile courts, judges have not received any type of training or instruction in the laws pertaining to children, their rights and their growth and development. In some cases, judges and government officials told the Commission that the judges serving in the specialized courts of the juvenile justice system met the requirements for their positions because they were women and mothers,  but not because they were specialists in juvenile justice.
The Commission was also told of cases in which the judges ended up on the juvenile court bench by a rotation system, where they would remain for one year. This is not sufficient time to develop experience and expertise in this area. The Commission is troubled by the fact that outside the major cities, there are often no judges specifically appointed or trained to deal with cases involving children accused of violating criminal laws, with the result that the degree of specialization of the court system is even less.
In many States, in districts beyond the capital or major cities, juvenile offenders are tried by judges serving in the regular courts. In fact, it frequently happens that the same judges hear legal cases of all types; if there is a family court judge, he or she is also assigned cases involving juvenile offenders.
While the Commission recognizes that it is not always possible to post, throughout the national territory, judges devoted exclusively to hearing juvenile cases, they nonetheless have to be properly trained to be able to decide cases involving juvenile justice, in observance of all the specific rights and guarantees established for children.
The IACHR must point out that the principle of specialization applies to all personnel who play a role in the juvenile justice system, including other auxiliary staff of the courts, such as experts as well as the personnel charged with enforcing the measures ordered by the courts, including those tasked with supervising compliance with non-custodial measures.
The Commission recalls Rule 81 of the Havana Rules, which states that personnel of the juvenile detention facilities:. These and other specialist staff should normally be employed on a permanent basis.
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This should not preclude part-time or volunteer workers when the level of support and training they can provide is appropriate and beneficial. Under the principle of specialization, police officers must also have special training in the rights of children accused of violating criminal law and their particular needs according to their development. Rule 12 of the Beijing Rules reads as follows:. In order to best fulfill their functions, police officers who frequently or exclusively deal with juveniles or who are primarily engaged in the prevention of juvenile crime shall be specially instructed and trained.
In large cities, special police units should be established for that purpose. The Commission is troubled by the fact that, in many States of the region, it is not usual to require specific training of all personnel; in fact, security staff in detention facilities often have no training at all regarding the specific rights and needs of children. In this regard, the Commission is concerned about the lack of training in the medical, psychiatric, or psychological areas in order to respond to the special needs of certain children and adolescents.
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The IACHR also observes that it is vital that all procedures and the infrastructure of the juvenile justice system be tailored to ensure the rights of the child. Furthermore, the infrastructure must be progressively brought up to an optimal standard. The Committee on the Rights of the Child has singled out certain minimum standards which the Commission believes must be observed:.
A child cannot be heard effectively where the environment is intimidating, hostile, insensitive or inappropriate for her or his age. The Commission notes that efforts to tailor infrastructure and procedures to the special needs of the juvenile justice systems vary within the region. It has set up separate waiting rooms for children and has prioritized cases involving juvenile offenders over other domestic matters. At the same time, most of the family or special juvenile courts in the Caribbean have not made sufficient effort to make it easier for children to exercise their rights in juvenile court proceedings.
For example, during its visit to Jamaica, the IACHR noted that no measures had been taken to ensure that the environment of the juvenile courts was less intimidating to children and their families. The overcrowding is so severe that people were sitting on the stairs. Hearings are not scheduled, so that persons arrive at a. A dress code is enforced, but people are not notified of these rules before arriving at court and those who are not properly attired are not allowed into court.
In the hearing room, the judge sits on a podium and the children and their parents have to stand below the judge, looking up at him or her. No chairs are provided for seating. Similar scenes were repeated in many juvenile courts in the region. The Commission also recommends that the professional competency of all personnel serving in the juvenile justice system should be regularly reinforced and developed through training, supervision and evaluation.
The Commission urges the States to ensure that the juvenile justice system is accessible throughout their national territory and to take the measures necessary to ensure that the procedures by which the juvenile justice system operates and the facilities in which it operates are suitable for children and conducive to their participation.
The Principle of Equality and Non-Discrimination. Article 24 of the American Convention recognizes the principle of equality, which includes the prohibition of any arbitrary difference in treatment, such that any distinction, restriction or exclusion by the State that, even though provided by law, is neither objective nor reasonable would be a violation of the right to equality before the law, notwithstanding any violations of other Convention-protected rights when the difference in treatment is applied in practice. For its part, Article 1 1 of the American Convention prohibits discrimination in the exercise of the rights protected under the American Convention.
If, on the contrary, discrimination refers to unequal protection by domestic law, a violation of Article 24 would occur. The Inter-American Commission has consistently maintained that the development of the right to equality and non-discrimination reveals a number of related concepts. One concerns the prohibition of any arbitrary difference in treatment, mentioned earlier.
The other concerns the obligation to create conditions of real equality for groups that have historically been excluded and that are at greater risk of becoming the targets of discrimination. Furthermore, said distinctions may be an instrument for the protection of those who must be protected, taking into consideration the situation of greater or lesser weakness or helplessness.
Although the analysis of the arbitrary or discriminatory nature of a difference in treatment means that the distinction or exclusion will have to be tested to determine whether it is objective and reasonable,  there are cases in which the scrutiny for compliance with the parameters of legitimate end, suitability, necessity and proportionality is more exacting.
The Commission has also examined the concept of indirect discrimination or the disproportionate impact of laws, actions, policies, etc. The principle of equality and non-discrimination is also part of the international corpus juris on the rights of children and adolescents. Thus, Article 2 of the Convention on the Rights of the Child provides that:. States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, color, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.
States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child's parents, legal guardians, or family members. Then, too, the general principles of the Beijing Rules set some minimum standards for handling juvenile offenders and are to be applied impartially and without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, economic position, birth or any other condition.
Rule 4 of the Havana Rules provides that the Rules are to be applied impartially, without discrimination of any kind as to race, color, sex, age, language, religion, nationality, political or other opinion, cultural beliefs or practices, property, birth or family status, ethnic or social origin and disability. The Committee on the Rights of the Child has also examined the application of the principle of non-discrimination with respect to children.
It can be concluded that, due to the conditions in which children find themselves, differentiated treatment granted to adults and to minors is not discriminatory per se, in the sense forbidden by the Convention. The fact that treating children and adolescents differently from adults may not be discriminatory per se does not mean that any differentiated treatment of children and adults is justified.
But it may also be a violation of the principle of non-discrimination if the difference in treatment is not based on some objective and reasonable justification. Furthermore, the education laws in some States of the United States use the juvenile justice system to deal with problems like truancy.
For example, the Commission has been told that in the United States, although the Federal Juvenile Justice and Delinquency Prevention Act prohibits the incarceration of children for violations of criminal laws because of their status status offences , children who are truant from school after a court has ordered them to attend, can be deprived of their liberty since the laws in a number of States allow incarceration in cases in which valid court orders are disobeyed.
Here, the Committee on the Rights of the Child has observed that:. It is quite common that criminal codes contain provisions criminalizing behavioural problems of children, such as vagrancy, truancy, runaways and other acts, which often are the result of psychological or socio-economic problems.
The Committee recommends that the States parties abolish the provisions on status offences in order to establish an equal treatment under the law for children and adults . The Commission observes that Guideline 56 of the Riyadh Guidelines provides that:. In order to prevent further stigmatization, victimization and criminalization of young persons, legislation should be enacted to ensure that any conduct not considered an offence or not penalized if committed by an adult is not considered an offence and not penalized if committed by a young person.
With regard to discriminatory treatment among groups of children, the Commission is troubled by the plight of children who are victims of race-based discrimination within the juvenile justice system. The IACHR observes that children from minority communities in the Americas, such as Afro-descendant children and indigenous children, as well as Latino children in the United States, are overrepresented in detention facilities and occasionally receive harsher sentences for the criminal acts they commit.
Children belonging to these minority groups are also more likely to experience violence at the hands of police and correctional officers. In its Report on the Situation of Human Rights in Brazil, the IACHR highlighted the fact that social indicators revealed that Brazilians of African descent were more likely to be suspects, investigated, tried and convicted than the rest of the population. Other reports also point up the discrimination in the sentencing process in the United States in the case of children belonging to racial minorities, who are more likely to receive longer sentences than other children, even though the offense committed is the same.
Every community I talked with raised serious issues of policing The concerns included racial profiling as a systemic practice, over-policing of some communities in which minorities form a large percentage of the population and disturbing allegations of excessive use of force leading to deaths particularly of young black males .
In its General Comment No. The Commission also observes that children in the Americas are often the victims of discrimination by virtue of their socioeconomic circumstances. Within the region, children are routinely subjected to punishment for types of behavior that are manifestations of socioeconomic problems, like vagrancy, begging or indigence.
The Commission has examined the admissibility of one case that involved the alleged deprivation of liberty of children because they were alleged to be street children or indigent children. If a child comes from a single-parent household, that household is deemed less capable of supervising the child than a household in which both parents are present.
The study found that the majority of those detained were poor, uneducated children from marginal areas. The Commission also observes that girls in the Americas are frequent targets of discrimination by the juvenile justice system because of their gender. Thus, girls who violate the law are more likely than boys to be sent to adult correctional facilities, where they are routinely intermingled with the adult population.
Furthermore, because there are so few women on the police force and among prison guards, girls often become the victims of physical, psychological and sexual abuse in the juvenile justice systems of the hemisphere. The information the Commission received also describes the discrimination that children suffer by virtue of their sexual orientation.
In some States of the region, children face the juvenile justice system for engaging in certain sexual behavior, especially having sexual relations with members of the same sex. Worse still, in some States like Guyana  and Jamaica, there are specific laws criminalizing homosexual activity and sodomy. Then, too, in some States children become special targets of police brutality and violence by detention facility personnel because of their sexual orientation and gender identity. The juvenile justice systems in the Americas have also traditionally discriminated against children with disabilities, especially those with mental disabilities.
The Commission is concerned by the fact that children with developmental disorders or who have mental health disabilities sufficiently severe to limit their ability to perform basic functions, are over-represented in the juvenile justice systems in the region. While developmental disorders and a limited cognitive capacity can sometimes cause children to violate the law, their mental capacity should be one factor considered when deciding whether to enforce punishment or refer them to specialized mental health systems.
The Commission points out that custodial sentences take a particularly heavy toll on children with mental disabilities, and their vulnerability frequently makes them the target of violence and exploitation by personnel of the juvenile criminal justice systems. Following the visit that the Commission and UNICEF made to El Salvador, Guatemala and Honduras in , the two organizations expressed concern at the discrimination in the conditions of detention of children and adolescents belonging to 'maras' or 'gangs':.
Many boys and girls from the poorest sectors of the population lack access to education, food, housing, health care, personal safety, family protection, and employment opportunities. Faced with that situation, many choose to join the maras or pandillas in search of support, protection, and respect. After joining, they usually live together in their urban communities, for the avowed purpose of mutual care and defense, and of defending the neighborhood in which they live against rival maras or pandillas. Many carry weapons and engage in criminal activities, including homicide, robbery, theft, and armed confrontations with other gangs—often with fatal results.
The Commission considers that while there may be multiple strategies for dealing with this phenomenon, the only way to ensure their effective implementation is to include the human rights perspective provided by the international standards on this subject. The fact that the region is reacting to the problem as a human rights issue says a great deal about how far the democratization process has gone. In prison mara members, whether on pre-trial detention or upon conviction, are segregated from the general population.
The police guarding the prison only ensure from outside that the prisoners do not escape, while inside the wing the mara leadership rules the life of the detainees without any interference by the authorities. Enforcement of this law frequently triggered a discriminatory and disproportionate response on the part of police. The law also ushered in age-based stigmatization in the belief that gangs were composed exclusively of children over the age of 12 but under In the Report of the Working Group on Arbitrary Detention, the United Nations Human Rights Council acknowledged that Article does not appear, in principle, to be incompatible with human rights norms.
It also observed that in practice police use this article to arrest children and adolescents at any time, without a court order. These children and adolescents can be taken back into custody immediately upon their release. It also expressed concern that many children were being arrested and detained merely because of their appearance; in other words, their mode of dressing or the tattoo or other symbol they wore meant that they were suspected of belonging to a mara.
Information the Commission has received suggests that the police abuses being committed under the tough-on-crime mano dura policies have not come to an end. That stigmatization creates a climate propitious so that those minors in risky situations are constantly facing the threat that their lives and freedom be illegally restrained . Special legislation was enacted that made it a crime for children to belong to a mara. According to the information the Commission has received, children were detained merely on the appearance of gang membership. It continues to stigmatize children and adolescents who belong to maras and makes reference to a vague regime that could be applied in a discriminatory manner.
Based on information on Guatemala acquired in , the Commission has learned that programs have been launched that distinguish children as the most vulnerable persons within the maras and gangs. The general purpose of these programs is to motivate young people to engage in activities that will help them realize their full emotional and social development as individuals. The hope is that this will separate them from the groups engaged in criminal activity within their communities.
The Commission also learned that the Mexican media estimate that approximately 3, children and adolescents have been detained since for allegedly participating in activities associated with organized crime, all against the backdrop of the violence that Mexico is currently enduring. In order to address, in part, the problem being raised, the Commission must point out that the States themselves have to take measures to prevent the stigmatization of children and adolescents involved in gangs.
The Commission believes that the States have to shift from the trend in current public policy of dealing with children and adolescents involved with gangs solely from a public safety perspective, through state law-enforcement and criminal justice institutions. State policies on this subject must strive to satisfy basic needs, create opportunities and respect for civil and political rights, including the right to a fair trial, the right to a proper legal defense for the duration of the proceedings, and use of incarceration only as a last resort and only for the most serious offences.
The States have an obligation to eliminate all norms and practices that imply some arbitrary difference in treatment or that discriminate against children and adolescents of the region. They also need to take special measures targeting those groups of children and adolescents that are disproportionately represented in the juvenile justice system where they experience discrimination. Finally, the member States are reminded that the rights of children under the juvenile justice system and the corollary obligations of protection to which Article 19 of the American Convention and Article VII of the American Declaration refer, are to be observed throughout their national territories.
Based on the principles of equality and non-discrimination, provisions that treat children and adolescents differently, depending on where the offense is alleged to have occurred, are unacceptable. As the Inter-American Court has held, those States organized under the federal structure cannot invoke that structure as an excuse for failing to comply with an international obligation. The Principle of Non-Regressivity. When States ratify international human rights treaties and incorporate them into their domestic laws, they undertake to protect and guarantee the exercise of those rights, which includes the obligation to introduce any amendments necessary in their domestic laws to ensure compliance with the provisions of those treaties.
The progress made in the protection of human rights is irreversible. It will always be possible to amplify the protection that the rights afford, but never to narrow it. Also, under Article 27 2 of the American Convention, the obligations that States have with respect to children cannot be suspended under any circumstances.
Having said this, from the responses it received to the questionnaire, the Commission has learned of a number of legislative initiatives in the region that would constitute a regression away from the standards achieved in the process of adapting domestic laws to the principles of the Convention on the Rights of the Child. The Commission has been informed, inter alia , of bills that seek to suspend the minimum guarantees in proceedings in juvenile courts, bills whose purpose is to lower the minimum age at which children would be subject to ordinary criminal sanctions, and others that seek to lower the upper age-limit at which children would come under the jurisdiction of the juvenile justice system, bills to toughen penalties, bills to criminalize mere membership in a gang, and other regressive measures.
A case in point is related to Ecuador, where in July , a bill on Criminal Responsibility for Juvenile Offenders was introduced. Under that bill, the criminal laws would apply to anyone who, at the moment when perpetration of the crime began, was over sixteen and under eighteen years of age. According to the bill, if the crime began when the alleged perpetrator was between 16 and 18 years of age and if, by the time the crime was consummated, the alleged perpetrator was over 18 years of age, the applicable law would be the one applied to adults.
Under this bill, year-olds accused of violating criminal laws would be prosecuted in the regular criminal justice system; under the system currently in effect in Ecuador, persons who have not yet turned 18 are subject to a Special Statute on Children and Adolescents and cannot be charged with the offenses criminalized under the Penal Code in force for adults.
However, the bill includes regressive provisions, as it seeks to raise the maximum socio-educational measure penalty from 4 to 6 years in the case of children who commit offenses that, under the Penal Code, carry sentences of incarceration. Another case is that of Panama, where in late , the State approved a legal overhaul of its juvenile justice system which, inter alia, lowered the minimum age at which children and adolescents are held responsible by the juvenile justice system from 14 to 12 years of age.
The Commission observes that the adoption of regressive measures that curtail children exercising their rights is a violation of the standards established by the Inter-American human rights system. It therefore urges the States to refrain from passing laws that are contrary to the current standards on the subject. Guarantees in the Juvenile Justice System. As the Inter-American Court has held:. The guarantees set forth in Articles 8 and 25 of the Convention are equally recognized for all persons, and must be correlated with the specific rights established in Article 19, in such a way that they are reflected in any administrative or judicial proceedings where the rights of a child are discussed.
The Court has stated in this regard that while procedural rights and their corollary guarantees apply to all persons, the exercise of those rights in the case of children requires, because of their special condition, that certain specific measures be adopted in order to enable them to effectively enjoy those rights and guarantees.
This includes any administrative proceedings. According to the IACHR, particular care must be taken to observe those guarantees when what is at stake is the possibility that a child might be deprived of his or her liberty, which includes the so-called deprivation of liberty measures or protective measures. The rules of due process are set forth not only in Articles 8 and 25 of the American Convention, but also in Articles 37 and 40 of the Convention on the Rights of the Child. The Beijing Rules, the Havana Rules, the Tokyo Rules and the Riyadh Guidelines also make specific reference to the obligation to guarantee the rights of children subjected to various State proceedings.
Nevertheless, from the information it has received, the Commission has established that the procedural guarantees are not properly and uniformly observed by the States of the region when the juvenile justice systems are put into practice. For example, in the case of the right of defense, the Commission is concerned that most member States do not have provisions to provide pro bono legal services to children facing the juvenile justice system.
At the same time, the Commission recognizes that some member States have already introduced legal provisions to that effect. For example, in Suriname and Jamaica, the law provides that the services of a pro bono attorney are to be provided to every child accused of violating criminal laws. In Nicaragua, Article 18 of the Child and Adolescent Statute requires that every adolescent accused of committing, or being an accessory to, a crime or misdemeanor shall have the right to be represented from the moment of his or her arrest and investigation, under pain of nullity.
In other States, although no such legislation exists, significant activities have been undertaken to ensure that children accused of violating criminal laws are represented by counsel. Nevertheless, during its in loco visit to Jamaica from December 1 through 5, , the Inter-American Commission interviewed children deprived of their liberty in detention centers and was very troubled by the fact that few of them even knew who their attorney was. This suggests that prior to trial, there was little interaction between attorney and client. The Commission also sensed that the children had very little understanding of the legal process in which they were involved or of how their cases were proceeding.
During its visit to the Wagner Boys Facility in Belize in May , the Commission learned that children had been held in preventive detention on charges of murder for as much as a year, waiting to be assigned an attorney. During the regional consultations and consultations with experts in the course of preparing this report, the Commission heard comments expressing concern over the fact that the defense attorneys assigned to children accused of violating the law are not specialists in juvenile criminal justice. According to what the Commission was told, in a number of States the defense attorneys in the juvenile justice system are also working in the civil courts, family courts and even regular criminal courts for adults.
The lack of specialization is even more acute once outside the main cities. The Commission is pleased that some States, like Barbados and others in the Caribbean, have changed their laws to require courts to explain to the children, in simple language and as early as possible, basic information regarding the violation they are alleged to have committed and for which they are charged.
In some States, like Argentina, the courts have issued important judgments on the effectiveness of the right to be heard and to participate in the process. As for the principle of rebuttal, experts on the subject have told the Commission that guaranteeing equality of arms in proceedings and the opportunity to rebut testimony and disprove evidence pose enormous challenges in the region. As for the confidentiality of proceedings in the juvenile justice system, the information the Commission has received indicates that while a number of laws provide that juvenile proceedings shall be conducted in courts closed to the public, it often happens that magistrates have the discretion to decide who can be admitted to the hearing chamber; even the media are often allowed into the chamber.
In other States, like Suriname, there is no guarantee of the confidentiality of juvenile court proceedings, except in the case of proceedings in which sexual crimes are charged. In some States , information about children in the juvenile justice system is published. In Colombia, law enforcement authorities routinely publish photographs of arrested children in the media, thereby violating their right to privacy and their right to the presumption of innocence. The information the Commission has received concerning the duration of cases in the juvenile justice systems in the region is discouraging.
Although swift proceedings in the court of first instance are guaranteed in many States, appeals can drag on for much longer, which has the effect of discouraging an appeal or rendering the right of appeal ineffective. In most States, there is no limit on the period that may elapse between the time the child is actually charged and the time a definitive decision in the case is handed down. As a result, proceedings can drag on for years before the case is decided. The Commission was extremely disturbed by reports that some children in Trinidad and Tobago are held in custody for as long as four and a half years without a trial.
At the same time, the Commission is gratified to see a number of best practices, as in Belize, where cases are dismissed if there has been an unwarranted delay. The Commission has also been informed that in Chile, most of the cases To provide the States with guidance concerning their obligations with respect to the guarantees that the juvenile justice system must ensure, the IACHR will now describe the procedural guarantees that apply to proceedings in the juvenile justice system and will explain how, in some cases, those guarantees take on special characteristics and importance since the persons accused are children still in the process of maturing.
A Competent Judge. Article 40 of the Convention on the Rights of the Child extends the guarantee of a competent, independent and impartial judge to situations involving State authorities other than jurisdictional bodies, or alternative, non-judicial mechanisms for conflict resolution. The Presumption of Innocence. Article 8 of the American Convention applies with equal force to proceedings in the juvenile justice system. This provision reads as follows:. During the proceedings, every person is entitled, with full equality, to the following minimum guarantees: … g.
On this same subject, Articles 40 2 b and 40 2 i of the Convention on the Rights of the Child provide that:. Likewise, Rule 17 of the Havana Rules states that:. Juveniles who are detained under arrest or awaiting trial "untried" are presumed innocent and shall be treated as such. The mere fact of being charged with a crime would suffice to assume that the child was at risk, which gave rise to measures such as internment.
They must take into account investigation of and possible sanctions applicable to the child, based on the act committed and not on personal circumstances. Thus whenever a child accused of violating criminal law is brought before a judge, the child must be treated as innocent without considering his personal situation. The Right of Defense. The right of defense for children in the juvenile justice system is guaranteed under Article 40 of the Convention on the Rights of the Child.
Article 8, paragraphs d and e of the American Convention establish certain minimum guarantees for the right of defense, such as the inalienable right to be assisted by counsel provided by the State, if the accused does not defend himself personally or engage his own counsel within the time period established by law, and the right to examine witnesses present in the court and to summon witnesses, experts or other persons who can shed light on the facts.
States must ensure that children facing juvenile court proceedings are assisted by counsel, which means, inter alia, providing for his or her participation in the proceedings, ensuring that the services of a specialized public defender are available anywhere in the national territory, and establishing service quality standards. To ensure a proper defense, models must be adopted for supervising attorney practices, and the children and their parents or representatives must be able to file complaints regarding the legal assistance received.
The Principle of Rebuttal. Article 8 of the American Convention provides for the principle of rebuttal, where it states that during the proceedings, every person is entitled, with full equality, to certain minimum guarantees. Full equality means that true procedural equality of arms must be established between the parties and must be guaranteed if the accused is to be able to properly defend his or her interests and rights. Article 7 1 of the Beijing Rules provides that basic procedural safeguards shall be guaranteed at all stages of proceedings, which includes the right to confront and cross-examine witnesses.
In order to guarantee this principle, States must ensure that their juvenile justice systems allow accused children to intervene either personally or via their representative, introduce evidence, examine the evidence, make allegations, and so on. The Right to be Heard and to Participate in the Proceedings. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law . The right to participate in the proceedings thus enriches the right of defense if it means that the child has the right to have witnesses called and examined, the right not to testify against oneself and the right not to be forced to incriminate oneself.
The Midtown Community Court in New York City has jurisdiction over all prostitution offenses in Manhattan for children and adults aged 16 and over. Queens County Prostitution Diversion Court. The Queens County Prostitution Diversion Court began in when Judge Fernando Camacho noticed that many defendants in his court had a history of trauma, and some did not appear to be engaging in prostitution voluntarily more In , the Los Angeles County Juvenile Court received funding for the STAR Court, a collaborative court designed to provide enhanced supervision of youth arrested for prostitution more Federal legislation appears to have provided the criminal justice system with means of dealing more harshly with those convicted of commercial sexual exploitation and sex trafficking of minors, including increased prison sentences.
One study found that the average sentence for these crimes was 53 months in , before the Victims of Trafficking and Violence Prevention Act was passed, and 80 months in , after the Trafficking Victims Protection Reauthorization Act was passed [ 34 ]. Looking at deterrence rather than punishment, another study found that men who purchased sex viewed the following as deterrents:. Additional research is needed to understand effective deterrents for different types of exploiters. For example, one recent study suggests that individuals who habitually buy sex are less likely to be deterred by legal sanctions than those who purchase sex infrequently [ 48 ].
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