ACCESS TO JUSTICE AND SOCIAL INCLUSION:
THE ROAD TOWARDS STRENGTHENING DEMOCRACY IN BOLIVIA

CHAPTER VI

RIGHTS OF CHILDREN[311]

A.         Introduction

367.     During its visit, the Commission held meetings with civil society organizations working specifically on the rights of children in Bolivia.  They provided the Commission with information on situations relating to this issue that are serious enough to be mentioned here.

368.     In general, the Commission takes a positive view of the legal framework for the rights of the child. Bolivia is party to the United Nations Convention on the Rights of the Child.  In addition, the Constitution establishes (Article 199) that the State has the duty to protect the physical and mental health of children and to defend their rights to a home and to education, provisions that were regulated by the Juvenile Code (Código del Niño, Niña y Adolescente) of 1999.  Nevertheless, some aspects of that Code call for some remarks as made in this section.

369.     The Commission recognizes the recent efforts that the current government has made, such as using funds from the nationalization of hydrocarbons to create the "Juancito Pinto Bonus," which pays 200 bolivianos to the parents of children in grades one to five for use in their education and for the purchase of school materials.

370.     Despite those initiatives the Commission observed that children in Bolivia continue to be victims of human rights violations, affecting their civil and political rights as well as economic, social and cultural rights.

371.     With respect to the latter rights, the Commission learned that in 2005 there were approximately 500,499 children and adolescents who were denied the right of access to formal public education because there was no space for them in the schools.[312]  The Commission reminds the Bolivian State that, according to the duty to accord special protection to children, pursuant to Article 19 of the American Convention, interpreted in light of the Convention on the Rights of the Child and the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, taken in relation with the duty for progressive development contained in Article 26 of the Convention, States must provide free primary education for all children, in an environment and under conditions conducive to their full intellectual development.[313]

372.     The Commission also notes that the Education Reform Act and its implementation have given priority to teaching the indigenous language in rural areas. Nevertheless, given the structural situation of discrimination to which indigenous peoples are still subjected, parents are reluctant to do have their children receive such education because of the implications for exercise of their rights, especially in the cities.

373.     The Commission highlights that measures taken for the progressive development of economic, social, and cultural rights must include comprehensive policies aimed at solving problems that restrict access to schools, perpetuate discrimination, and affect educational quality—problems which have historically affected children's access to the right to education.

374.     The Commission is also concerned at the persistent high rates of child mortality, particularly in rural areas, as the result of precarious living conditions. According to information received, one-quarter of the population of children under the age of three years suffers from chronic malnutrition, and this rate is particularly high among those who live in rural areas.[314]

375.     Civil society organizations also complained that, in general, interpersonal relations between adults and children continue to be relations of power and in many cases of violence, expressed in physical, psychological and sexual mistreatment.[315]  A step forward in this area is the creation of the Ombudsman’s Offices for Juveniles.  Nevertheless, the Commission found that there are still problems with the coverage of the service and the stability of its personnel, since they depend on municipal governments for their funding.[316] The Commission observes that, although both the norms of the Juvenile Code and the Law against Domestic and Family Violence recognize the right to the humane treatment of children, such codes do not protect them effectively against all forms of violence since they contain provisions that sanction acts of violence only when they can be shown to be “an abuse of corrective or disciplinary measures.”[317] This can be interpreted as allowing forms of violence that, because they are deemed to be used within the family for disciplinary reasons, remain invisible, contrary to the prohibition of corporal punishment against children.

376.     The Commission was concerned to note that, despite the importance of the issue, there is little official information available on the rights of children in Bolivia and the measures taken to guarantee their exercise. For this reason, it will limit its considerations to the information provided by civil society on the following topics: right to legal recognition; child labor, trafficking and sexual exploitation; and justice.

B.         The right to legal recognition

377.     The 1999 Juvenile Code provides that "every child shall be registered in the civil registry and shall receive the corresponding certificate, free of charge, immediately after its birth, and shall have the right to bear a name that shall not be grounds for discrimination under any circumstances."[318] While that provision establishes no condition for its implementation, the Commission received information that a presidential decree of April 2002 rules that only those born as of January of that year would be eligible for free registration.

378.     The Commission was concerned to note that this restriction has been reflected in continuing high numbers of children who are not registered. The Commission was informed that two out of every three children have no birth certificate.[319]

379.     The Commission considers it essential for the State to provide children with the special protection due them in view of their status as developing beings and therefore to give priority to this problem, for the lack of civil registration for children has real consequences for their ability to exercise their rights: the protections and guarantees established for children in the Constitution and in international instruments are a dead letter for those who have no identity documents.

C.         Child labor, trafficking and sexual exploitation

380.     In keeping with international human rights standards, children have labor-related rights, the protection and exercise of which required increased protection.  For example, the United Nations Convention on the Rights of the Child requires States to set the minimum age for work and to regulate the hours and conditions of work.[320]  Likewise, ILO Convention 138 on the minimum working age establishes that the working age must be determined by States and that in no case may it be less than 15 years, or 14 years if certain conditions set forth in that instrument are met.[321] In the same context is ILO Convention 182 on worst forms of child labour[322].  In effect, in Bolivia the General Labor Act[323] and the Juvenile Code[324] establish the minimum working age at 14 years.

381.     Notwithstanding that regulation, the conditions of poverty and extreme poverty in Bolivia are such that many children find themselves in the labor market[325] under conditions incompatible with their physical and mental development.  The 2001 census showed that there were about 370,993 children between the ages of seven and 18 years working in Bolivia.  The Commission noted that this estimate was sharply criticized by civil society organizations, which place the figure at more than 800,000. As the Commission was informed, the most common areas of child labor are agriculture, commerce, private domestic service, and manufacturing, in descending order.[326]

382.     Various civil society organizations report that the greatest percentage of child workers are engaged in marginal activities of the informal economy, with minimum pay, long workdays, and no social benefits, in complete disregard of the provisions in the Juvenile Code.  The Commission received complaints that the special protection of child labor legislation is inoperable because there are no policies to enforce it.[327]

383.     Figures provided by civil society organizations show that in the seven municipalities where the small-scale mining industry is concentrated, there are approximately 3,800 children engaged in this hazardous work, accounting for 10% of the mining workforce.[328]

384.     The Commission also received reports of Guaraní children working with their fathers on farms in the departments of Santa Cruz, Tarija and Chuquisaca, as detailed above (paragraphs 259 and 262), and that children move about with their families for harvesting sugarcane, an activity that reportedly employs more than 30,000 people every year, including nearly 7,000 children.[329]  The Commission observes with concern that the forms of labor conducted by children primarily in rural areas and agriculture constitute forms of forced labor analogous to practice of slavery[330].

385.     These data are of particular concern to the Commission, as is the absence of any meaningful official information on this issue, because it leaves unrecognized a problem that is deeply rooted in the culture of Bolivian society, where it is considered normal to have children working at very young ages.  In effect, the Commission was told that child labor constitutes an important portion of household incomes for families in this situation.[331]

386.     With respect to the sale and trafficking of children, the scanty information available suggests that in the cities of La Paz, El Alto, Cochabamba and Santa Cruz there are approximately 1453 boys and girls between the ages of 11 and 17 who are victims of commercial sexual exploitation.[332]  The situation is worse in the case of girls.  According to information received, an average of 45 to 50 children between the ages of 12 and 16 are recruited in the departments of Beni, Pando, Cochabamba and Santa Cruz for purposes of prostitution in the city of La Paz.

387.     The Commission is profoundly concerned that, despite studies conducted by various organizations that have verified the existence and the steady growth of this phenomenon in Bolivia, the data available are sketchy and incomplete and show that the issue is not a government priority.  In effect, there is no information on measures taken by the State to prevent and investigate this situation, although Bolivia is party to the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution, and Child Pornography,[333] and these are classed as crimes in the Criminal Code.

388.     The Commission reminds the Bolivian State that, by virtue of Article 19 of the American Convention, it is obliged to take special measures of protection in favor of children under its jurisdiction, both with respect to the enjoyment of their rights and the special consideration they require in their situation of vulnerability.[334]

D.         Justice

389.     The Commission noted certain aspects relating to the application of criminal justice to children in Bolivia.  In the first place, the Juvenile Code provides that, as of the age of 16 years, a child may be held responsible for criminal offenses it commits.  Children between the ages of 12 and 16 years are deemed to have "social responsibility" and may be subjected to social and educational measures ordered by the Juvenile Courts, but not to criminal punishment.  As well, persons between the ages of 16 and 21 years who are tried and convicted enjoy the protection of special legislation for children and adolescents.[335]

390.     The application of criminal justice to children under the age of 18 years does not necessarily conflict with international standards, provided all the requirements of due process are observed, and the special guarantees established in Article 40 of the United Nations Convention on the Rights of the Child, which Bolivia has ratified.

391.     The Commission noted that, although domestic legislation requires criminal prosecution and judgment of juveniles by special authorities different from the ordinary criminal courts, in practice children between the ages of 16 and 18 years are processed and tried by the same courts as adults. On this point, the Inter-American Court, in its Advisory Opinion 17, referring to Article 40.3 of the Convention on the Rights of the Child[336] as a criterion for interpreting Article 19 of the American Convention, has held that persons under the age of 18 who are charged with a crime must be investigated and tried by special authorities created for that purpose.[337]

392.     The Commission also received information that, in practice, preventive detention is widely used for children between the ages of 16 and 18 years. Although the Penal Execution and Supervision Act contains a whole chapter on special protection in the preventive detention of children, the Juvenile Code allows preventive detention for 45 days, and establishes as one of the criteria for such detention a determination by the court that the child poses a “public threat.”[338] In addition, there are no special detention centers for juvenile delinquents that offer conditions for their reeducation,[339] as indicated above (paragraph 197).

393.     The Commission reiterates that, consistent with international standards, the detention of children must be exceptional.[340]  With respect to preventive detention, the Commission notes that international jurisprudence is consistent in holding it as an exceptional measure that must respond exclusively to procedural purposes, and this interpretation takes on special importance for children who, by their condition, are at greater risk.  A rule that applies "public threat" as a factor in determining preventive detention for children is incompatible with international standards.

394.     This situation is worsened by procedural delays in these cases, caused by budgetary and personnel shortages both in the Ombudsman’s Office for Juvenile, which operate as a branch of the Juvenile Courts, and in those courts themselves.[341]  On this point, the Inter-American Court referred in its advisory opinion to the United Nations Rules for the Protection of Juveniles Deprived of Their Liberty in the sense that preventive detention of juveniles must be limited to exceptional circumstances and, if applied, juvenile courts and investigative bodies must give the highest priority to the most expeditious processing of such cases.[342]

E.         Recommendations

395.     By virtue of the foregoing, the Commission recommends that the Bolivian State:

1.       Give priority to implementing policies for preventing the situations described in this section and others that constitute gross violations of the human rights of Bolivian children, through a clear analysis of the situation that afflicts this sector of society.

2.       Guarantee access to the civil registry free of charge, as established in the Constitution, and take steps to identify all children who have been prevented by various means from obtaining an identity document.

3.       Take all steps necessary to expand the coverage of public education as far as possible, both in terms of access and in terms of educational continuity and quality.

4.       Adopt measures to expand the coverage of the Juvenile Defenders' Offices and other institutions provided for in legislation, both for protection and for the prevention, investigation and punishment of crimes of all kinds committed against children.

5.       Adopt all necessary measures to ensure that children are protected from all forms of violence, making certain that national norms do not include any ambiguous wording, for example, “abuse of corrective measures” or "discipline" or "disciplinary," since such terms raise doubts about the criteria used to determine when corrective measures are excessive and are included in the framework of prohibited actions as corporal punishment against children. In their place, it must be established clearly that the corporal punishment against children is prohibited.

6.       Design policies to eradicate rural and urban labor for children under the age of 14 years, and to enforce the rules that allow the employment of persons under 18 years, with respect to social rights and restrictions on working hours and activities performed.

7.       Take immediate steps to prevent and eradicate all forms of sexual exploitation of children, and to investigate and punish such conduct. To this end it will be essential to take steps for the effective enforcement of existing legislation.

8.       Ensure that, in applying the so-called "social responsibility" or criminal liability of juveniles, deprivation of liberty is imposed only as a last resort, and that the necessary measures are taken to create establishments for the reeducation of children in this situation.

9.       Take steps necessary to grant special guarantees of due process enshrined in domestic legislation, in accordance with international standards, and in particular the effective implementation, with the widest possible coverage, of specialized courts for determining the criminal liability of children.

10.     Repeal the provisions of the Juvenile Code that establish "public threat" as grounds for preventive detention of children. The State must guarantee that this measure is used only exceptionally and for exclusively procedural purposes.