JUVENILE JUSTICE AND HUMAN RIGHTS IN THE AMERICAS

II.       THE JUVENILE JUSTICE SYSTEM

12.     In this chapter, the Commission will examine the relevant principles and guarantees that should govern the specialized system of justice that applies to children in conflict with the law. The IACHR’s analysis will be carried out in light of the model that is premised upon comprehensive protection[11] of the rights of children and adolescents and contemporary international human rights law that recognizes children as subjects of their rights and not as objects of protection.  The principles and guarantees to be analyzed in this report refer to and must be observed by the entire specialized juvenile justice system, including police authorities, the Public Prosecutor’s Office, public defenders and all agencies that have a hand in enforcing any measures and penalties ordered.

13.     The Inter-American Court of Human Rights (hereinafter “the Inter-American Court” or “the I/A Court H.R.”) has highlighted that it is obvious that a child participates in criminal court proceedings under different conditions from those of an adult:  “to argue otherwise would disregard reality and omit adoption of special measures for protection of children, to their grave detriment. Therefore, it is indispensable to recognize and respect differences in treatment which correspond to different situations among those participating in proceedings.”[12]

14.     Thus, in application of the legal framework for the protection of human rights, children who have violated, or have been accused of violating, criminal law must not only be accorded the same guarantees that every adult enjoys, but special measures of protection as well.  The Commission will reference certain norms, principles and guarantees that member States must observe when enforcing juvenile justice in a manner that respects and ensures this special protection that children and adolescents require.

A.       

A.    Corpus juris of the Human Rights of Children and Adolescents

15.     Under the international law on the interpretation of treaties, the American Convention and the CRC are part of a body of related norms or corpus juris for the protection of the rights of children and adolescents.  That corpus juris must be taken into account when interpreting Article 19 of the American Convention[13] and Article VII of the American Declaration[14], which guarantee children’s rights to special measures of protection on the part of their family, society and the State.

16.     The concept of a corpus juris on the subject of children is an acknowledgement of the existence of a body of basic rules whose purpose is to guarantee the human rights of children and adolescents.  The Inter-American Commission referred to this concept in the following terms:

For an interpretation of a State's obligations vis-à-vis minors, in addition to the provision of the American Convention, the Commission considers it important to refer to other international instruments that contain even more specific rules regarding the protection of children. Those instruments include the Convention on the Rights of the Child and the various United Nations declarations on the subject. This combination of the regional and universal human rights systems for purposes of interpreting the Convention is based on Article 29 of the American Convention and on the consistent practice of the Court and of the Commission in this sphere[15].

17.     The Court emphasized the fact that the corpus juris is a source of law to establish the content and scope of Article 19 of the American Convention, and is the product of the evolution of international human rights law on the subject of children, which is now premised on a recognition of children as subjects of rights:

Both the American Convention and the Convention on the Rights of the Child form part of a very comprehensive international corpus juris for the protection of the child that should help this Court establish the content and scope of the general provision established in Article 19 of the American Convention[16].

18.     Therefore, the juridical framework for the protection of children’s human rights is not confined to Article 19 of the American Convention or Article VII of the American Declaration.  Instead, for the purposes of interpretation, it also includes, inter alia, the 1989 Convention on the Rights of the Child (hereinafter “the CRC”)[17], the 1985 United Nations Standard Minimum Rules for the Administration of Juvenile Justice (hereinafter “the Beijing Rules”)[18], the 1990 United Nations Standard Minimum Rules for Non-custodial Measures (hereinafter “the Tokyo Rules”)[19], the United Nations Rules for the Protection of Juveniles Deprived of their Liberty (hereinafter “the Havana Rules”),[20] and the United Nations Guidelines for the Prevention of Juvenile Delinquency (hereinafter “the Riyadh Guidelines”)[21], as well as international human rights instruments that are general in scope.

19.     For the purposes of interpretation, that corpus juris also includes the decisions adopted by the United Nations Committee on the Rights of the Child (hereinafter, the “Committee on the Rights of the Child”) in furtherance of its mandate, such as General Comment No. 10 on children’s rights in juvenile justice.[22] That perspective represents a significant step forward that reveals the existence of a common framework of international human rights laws on the subject of children, as well as the interdependence, at the international level, of the various international systems for the protection of children’s human rights.

20.     The IACHR emphasizes that those member States that have not yet ratified the American Convention are just as bound by the corpus juris on children’s rights, because Article VII of the American Declaration provides that all children have a right to special protection, care and aid.

B.      The Best Interests of the Child and the Juvenile Justice System

21.     Article 3 of the CRC provides that in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

22.     The Court has established that the best interests of the child are a reference point to ensure the effective realization of all rights contained in the CRC. Their observance will allow the child to fully develop his or her potential.[23]  It has also held that “the prevalence of the child’s superior interest should be understood as the need to satisfy all the rights of the child, and this obliges the State and affects the interpretation of the other rights established in the Convention when the case refers to children.”[24]

23.     Following this same line of reasoning, the Commission has held that, based on the comprehensive protection doctrine underlying the Convention on the Rights of the Child, the best interests of the child should be understood as the effectiveness of each and every one of a child’s human rights.[25]  This was also the Inter-American Court’s finding where it held that:

... the phrase “best interests of  the child”, set forth in Article 3 of the Convention on the Rights of the Child, entails that children’s development and full enjoyment of their rights must be considered the guiding principles to establish and apply provisions pertaining to all aspects of children’s lives.

...

The ultimate objective of protection of children in international instruments is the harmonious development of their personality and the enjoyment of their recognized rights.  It is the responsibility of the State to specify the measures it will adopt to foster this development within its own sphere of competence and to support the family in performing its natural function of providing protection to the children who are members of the family.[26]

24.     In this regard, State institutions, organs and authorities, as well as private persons authorized for or involved in the regulation, application and operation of the juvenile justice system must always bear in mind the best interests of the child.  The Commission considers that the best interests of the child should be a guiding principle of interpretation that reconciles two realities at the moment of regulating the juvenile justice system: on the one hand, recognition of the child’s capacity to reason and his/her autonomy, which means that the child ceases to be a mere object of protection; on the other hand, recognition of the child’s vulnerability, given the child’s material incapacity to fully satisfy his or her basic needs, especially in the case of children from disadvantaged sectors of society or groups that are targets of discrimination, such as women[27].

25.     Likewise, the Committee on the Rights of the Child has stated that:

Children differ from adults in their physical and psychological development, and their emotional and educational needs. Such differences constitute the basis for the lesser culpability of children in conflict with the law. These and other differences are the reasons for a separate juvenile justice system and require a different treatment for children[28].

26.     Like the Committee on the Rights of the Child, the Commission believes that protection of the best interests of the child means, inter alia, that the traditional objectives of criminal justice –namely, repression and punishment- must give way to reparation, rehabilitation and social reintegration of children and adolescents through the diversion of cases, or the use of other means of restorative justice, such as those discussed in the corresponding sections of this report, with as little recourse as possible to adjudication and precautionary measures or punishments involving the deprivation of liberty.[29]

27.     Finally, the best interests of the child imply, among other considerations, that in juvenile justice proceedings and processes, each case will be examined on an individual basis, as every child’s needs are different,[30] and that proper weight will be given to the child’s own opinion in accordance with his or her respective age and maturity,[31] and with the opinion of the child’s parents, guardians and/or representatives or closest family members.[32]
 

C.     The Objectives of Juvenile Justice

28.     In describing the rights of any child alleged to have violated criminal laws or accused of or found guilty of having violated those laws, Article 40 of the Convention on the Rights of the Child emphasizes the desirability of promoting the child’s reintegration and of the child’s assuming a constructive role in society.

29.     As for the guidelines and fundamental principles that must guide the exercise of criminal action in cases in which children are accused of violating criminal law, the Inter-American Commission, in keeping with the standards established by the corpus juris described earlier, has observed that there is a clear tendency in international human rights law to afford greater protection to children than to adults, and to limit the role of ius puniendi.[33]

30.     The Inter-American Commission has observed that Article 19 of the American Convention is the source of particular obligations for guaranteeing juvenile offenders their rehabilitation in order to allow them to play a constructive and productive role in society.[34]  Along this same line of reasoning, the Inter-American Court has noted that when the State apparatus has to intervene in offenses committed by children, it should make substantial efforts to guarantee their rehabilitation in order to “allow them to play a constructive and productive role in society".[35]

31.     Thus, a juvenile justice system whose policy on crime is geared merely toward retribution and which puts considerably less emphasis on such fundamental goals as prevention and promotion of the opportunities for successful reincorporation into society, would be incompatible with the international standards on the matter.

32.     Under Article 40 of the CRC, States parties must endeavor to promote measures for dealing with children alleged of, accused of, or recognized as having violated, criminal law without resorting to judicial proceedings, such as referral to alternative (social) services, whenever appropriate and desirable.[36]  Generally speaking, international human rights law favors reserving those penalties that most severely restrict a child’s fundamental rights for only the severest of crimes; thus, the trend in juvenile justice systems is toward abolishing penalties of imprisonment or deprivation of liberty.  Even in the case of criminalized offenses, laws protecting the child must advocate some form of punishment other than imprisonment or deprivation of liberty.[37]  Furthermore, in those cases in which a child or adolescent is found to be responsible for serious offenses that carry penalties of imprisonment or deprivation of liberty, the State’s exercise of ius puniendi should be guided by the principle of the best interests of the child.

33.     As for the manner in which these penalties are to be applied, the Beijing Rules provide that “restrictions on the personal liberty of the juvenile shall be imposed only after careful consideration and shall be limited to the possible minimum” (Rule 17.1.b). Therefore, even in the case of serious crimes that carry heavy penalties, the law must offer the judge the means by which to enforce this type of penalty in a manner consistent with the best interests of the child.  In other words, “the reaction taken shall always be in proportion not only to the circumstances and the gravity of the offence but also to the circumstances and the needs of the juvenile as well as to the needs of society” (Rule 17.1.a).

34.     These standards are based on the premise that when exercising its ius puniendi with respect to minors, the State must, when minors are involved, not only strictly comply with its international human rights obligations but also give special consideration to the particular situation of children and to their special need for protection.  This applies both with regard to determining their responsibility for violations of criminal law and when applying the penalties that such responsibility carries.  The Commission has emphasized how different the State’s punitive response must be when the offenders are under the age of 18, precisely because they are children when they commit the offense and therefore the blame that attaches to them and, by extension, the penalty, should be less in the case of children than it would be for adults.[38]

35.     Based on these considerations, the Commission must again make the point that to achieve the goals of juvenile justice, States must make the best interests of the child a paramount consideration when regulating the juvenile justice system or when applying a punishment or penalty. In case of trial or punishment, States must do everything within their power to ensure the rehabilitation of  children in the juvenile justice system, so as to cultivate their self-esteem and sense of dignity and thus enable them to successfully rejoin society and play a constructive role in it. The Commission considers that the retributive aspect of the regular criminal justice system does not serve the purposes of the juvenile justice system, if its goal is to fully rehabilitate and reintegrate the juvenile offender.

A.       Age-based Criteria for Holding Children and Adolescents Responsible for Violations of Criminal Law

36.     The Commission urges all the States to take the necessary steps, including amendment of their laws, to ensure that the juvenile justice system applied to children and adolescents accused of committing a crime is a specialized system that makes exception for their age, so that no child is criminally prosecuted by the rules of criminal responsibility that apply to adults, and no child under the minimum age of criminal responsibility will face the juvenile justice system.

1.       Upper Age-limit at which Children and Adolescents are Held Criminally Responsible under the Juvenile Justice System

37.     The American Convention on Human Rights does not define the term “girl, boy and, adolescent”. Besides, the Inter-American Court, in its Advisory Opinion number 17, established that the term “child” "obviously, encompasses boys, girls, and adolescents" and that “taking into account international norms and the criterion upheld by the Court in other cases, “child” refers to any person who has not yet turned 18 years of age”[39]. The Court specifically took into account the definition of a child or adolescent that appears in Article 1 of the Convention on the Rights of the Child and the international corpus juris on the subject.

38.     International law has clearly established the age of adulthood at 18.  The Commission therefore considers that if the body of evidence in a given case shows that the accused had not yet turned 18 at the time the alleged offense was committed, then the juvenile criminal justice system must apply.  Similarly, the Committee on the Rights of the Child has stated that it

... wishes to remind States parties that they have recognized the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in accordance with the provisions of Article 40 of CRC. This means that every person under the age of 18 years at the time of the alleged commission of an offence must be treated in accordance with the rules of juvenile justice[40].

39.     Nevertheless, according to the information the Commission has received, some persons under the age of 18 in the region are precluded from the juvenile justice system because certain member States have determined that children of 17, 16 and even less than 16 years of age may be tried as adults.  Furthermore, children have been denied their freedom and held under the same conditions as adults, despite the fact that under international law, only those over 18 years of age can be held criminally responsible as adults.

40.     The Commission is extremely disturbed by the fact that in a number of member States, children who have not turned 18 years of age are excluded from the juvenile justice system.  When persons under the age of 18 are required to face the regular justice system, they are being denied their status as children, and their rights are being violated.

41.     For example, according to information the Commission received, in Bolivia, the law holds that children are subject to criminal prosecution starting at the age of 16[41]. In 13 States in the United States, the upper age limit for the juvenile justice system is less than 18 years of age; in Connecticut, North Carolina and New York, children over the age of 15 are tried as adults.[42]  In most States of the Caribbean, children can be prosecuted under the juvenile justice system only until the age of 16.

42.     In Argentina, although Decree-Law 22,278 provides that a child or adolescent under the age of 16 cannot be held criminally responsible, the Commission notes that under the same law children between the ages of 16 and 18 who commit crimes can be tried as adults. Although the judicial authority is empowered either not to impose any sentence at all, or to reduce the sentence to one that an attempt to commit the crime of which the child was convicted would carry, the law allows a judge, at his or her discretion, to impose the same penalties prescribed under the regular criminal justice system[43].  The same is true of the system for enforcement of a sentence.  This treatment, which draws no distinction between adult and child, may be incompatible with the principle of the proportionality of the sentence and the lesser culpability of children in light of the best interests of the child, which must guide the consideration of conduct of adolescents in conflict with the law.^[44]

43.     The Commission is deeply concerned by the fact that in a number of member States, persons under the age of 18 face the regular criminal justice system, in utter disregard for their status as minors. The Commission considers that whenever a person was not 18 years of age at the time of the commission of the offense with which that person is accused, he or she must be treated in accordance with the rules of the special juvenile justice system.

44.     Finally, like the Committee on the Rights of the Child, the Commission is recommending that member States allow the rules of the juvenile justice system to be applied to persons who are 18 or over, generally until the age of 21, either as a general rule or as an exception.[45] Accordingly, the Commission is encouraging the member States to adopt domestic laws regulating prosecution and sentencing in the case of young people over the age of 18 who are convicted of offenses committed while still minors, so that they are not moved automatically into the adult prison system simply because they turn 18.

2.       Minimum Age at which Children and Adolescents are Held Criminally Responsible under the Juvenile Justice System

45.     The rules of the criminal justice system do not apply to all children under the age of 18 who are suspected of violating the law; instead, they apply only to those who have reached the minimum age of criminal responsibility.  Paragraph 3 of Article 40 of the CRC provides that States parties shall establish a minimum age below which children shall be presumed not to have the capacity to infringe the criminal law. Rule 4 of the Beijing Rules recommends that the commencement age for criminal responsibility should not be fixed too low, bearing in mind the facts of emotional, mental and intellectual maturity.

46.     While the instruments of international law do not set a minimum age of criminal responsibility, the Committee on the Rights of the Child has recommended that States set the minimum at between 14 and 16 years, and has urged them not to lower the minimum age of criminal responsibility below that age range.  The Committee on the Rights of the Child has also held that a minimum age of criminal responsibility below the age of 12 is not internationally acceptable, even less so in the case of a juvenile prosecuted in the regular criminal justice system.[46]

47.     The Commission observes in this regard that within the region, there is enormous disparity with respect to the minimum age of criminal responsibility and that a number of member States even consider that children under the age of 12 are criminally responsible.  For example, in Grenada, Trinidad and Tobago, and certain States in the United States, children who are aged 7 can be held criminally responsible.  In Antigua and Barbuda, Saint Kitts and Nevis and Saint Vincent and the Grenadines, criminal responsibility begins at age 8.  In the Bahamas, Guyana, and Suriname, children are held criminally responsible starting at the age of 10, whereas in Barbados it starts at age 11.

48.     In other member States, such as Dominica, Saint Lucia, Jamaica, Belize, Bolivia, Brazil, Canada, Costa Rica, Ecuador, El Salvador, Honduras, Mexico, Panama, Peru and Venezuela, the minimum age at which one can be held criminally responsible is 12.  In Haiti, Guatemala, Nicaragua and the Dominican Republic, the minimum age of criminal responsibility is 13. In Chile, Colombia, Paraguay and Uruguay, children can be held criminally responsible as from the age of 14. The highest age limit in the region is in Argentina, where the minimum age of criminal responsibility is 16 and then only in the case of crimes that are prosecuted by the state, and not for crimes that carry a sentence of more than two years’ imprisonment, with a fine or disqualification.

49.     The IACHR believes that the American Convention, the American Declaration, the Convention on the Rights of the Child, and any other human rights treaty must be regarded as “living instruments” and must be interpreted “in the light of present-day conditions.”[47] Here, the Commission is concerned over the fact that the age of 12 continues to be regarded as the internationally accepted absolute minimum age of criminal responsibility for children and adolescents in the juvenile justice system, when a number of States in the world and in the region have set the minimum age of criminal responsibility much higher. 

50.     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.[48]  The Commission regrets this situation and is disturbed by the fact that in some member States, the minimum age of criminal responsibility in the juvenile justice system is very low, while still other member States are advocating initiatives to lower that age.  The Commission believes that these measures and initiatives are at odds with international standards on the subject and the principle of non-regressivity.

51.     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.

52.     Another matter of concern for the Commission is that some States have two minimum ages of criminal responsibility or “minimum age ranges”, which means that children who fall between the two minimum ages can be held criminally responsible if they are deemed to be sufficiently mature.  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.[49]

53.     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.  In the Commission’s view, if a state determines that a child under a certain age does not have the capacity to violate criminal law, it is unacceptable for the child to be held criminally responsible when the violation involves an especially serious crime.  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.[50] Finally, the Commission concurs with the position of the Committee on the Rights of the Child to the effect that where there is no proof of age, or if it cannot be determined that the child is at or above the minimum age of criminal responsibility, then the child cannot be held responsible for a crime.[51]

54.     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.  In Argentina, for example, although Decree-Law 22,278 provides that a child or adolescent under the age of 16 cannot be held criminally responsible, the Commission observes that some children and adolescents under 16 years of age are deprived of their liberty for the sake of their “protection” based on the fact that Article 1 of that law states that “if the studies show that the minor has been abandoned, is indigent, is in material or moral danger, or has behavioral problems, the judge shall decide the matter once and for all, in a reasoned judgment and after a hearing with the parents or guardian.”

55.     Provisions like Article 1 above are used in a number of member States as a means to detain children who have not yet reached the legal minimum age of criminal responsibility, on the pretext of “protecting them”, without even affording them the guarantees of due process of law. The Commission recognizes that while special measures may occasionally be needed to protect the best interests of the child, this does not mean that a child should be held criminally responsible or deprived of liberty before the child has reached the minimum age of criminal responsibility by invoking the need to “protect” the child. This is also the position of the Committee on the Rights of the Child.[52]  Even when intended to serve the best interests of the child, such special measures must be the exception, be explicitly regulated by law, and be appropriate, necessary and proportionate; otherwise they may be deemed arbitrary or discriminatory.

56.     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.

57.     The insistence of the American Convention, the American Declaration and the Convention on the Rights of the Child that child and adolescent offenders are to be treated differently through a separate, special juvenile justice system, is a function of the intent of the States to minimize the justice system’s response to juvenile offenders, given their need for special measures of protection.[53]

58.     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 believes that a more constructive debate is now long overdue on how best to ensure that the required aims of a juvenile justice system are fulfilled, in which the child is “to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society”[54] .

59.     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. Thomas Hammarberg, Commissioner for Human Rights for the Council of Europe, proposed that it is time to go beyond a debate on the arbitrary setting of a minimum age of criminal responsibility and instead to consider how best to separate the concepts of “responsibility” and “criminalization” and stop criminalizing children[55]. 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.

B.     General Principles of the Juvenile Justice System

60.     The corpus juris on children’s rights clearly provides that children have the same rights as all other persons, as well as the special rights that follow from their status as minors. 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 IACHR will examine each of these principles in this section of its report.

1.      The Principle of Legality in Juvenile Justice

61.     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:

… when the former or the latter carry out acts that criminal laws consider punishable , therefore, it is necessary for the conduct that leads to State intervention to be defined as a crime. Thus, the rule of law is ensured in this delicate area of relations between the person and the State[56].

62.     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[57].

63.     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:

… 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.

64.     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. 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:

... no one shall be deprived of his physical liberty, except for reasons, cases or circumstances specifically established by law (material aspect), but, also, under strict conditions established beforehand by law (formal aspect)[58].

65.     The Tokyo Rules also provide that certain requirements common to all penalties must be observed in the case of minors as well, such as the existence of a court ruling establishing the minor’s responsibility for a criminal offense; the ruling is to spell out the sentence that will be enforced and for how long.^[59]

66.     The IACHR has clearly established that depriving a minor of his or her liberty for acts that the juvenile criminal justice system has not criminalized is a violation of that minor’s right to personal 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.[60].

67.     The Court, for its part, has stated that:

No one shall be subject to arrest or imprisonment for  causes or methods that – although qualified as legal – may be considered incompatible regarding for the fundamental rights of the individual, because they are, among other matters, unreasonable, unforeseeable or out of proportion[61].

68.     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.[62] If a state has enacted legislation to create the appearance of legality but gives the pertinent authorities enormous latitude, that law becomes arbitrary or discriminatory if it is applied to some children but not to others.

69.     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.^[63]

70.     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.[64]

71.     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.[65]  Nevertheless, the Commission notes that some member States criminalize conduct that would not be a criminal offense if committed by an adult, as well as behavior that is a function of a child’s socioeconomic vulnerability.

72.     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.[66]  The Commission is also troubled by the fact that within the region, the juvenile justice system is used to institutionalize children suffering from mental disabilities, on the pretext of their protection; given their mental disability, such children could never be held responsible for violation of any law. Hence, depriving them of their liberty is also a violation of the principle of legality, recognized in Article 9 of the American Convention.

73.     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. In particular, States must avoid “status” offenses that label certain minors as “delinquent,” “incorrigible,” or “unmanageable” on the basis of complaints, sometimes by parents, that the children need discipline and supervision due to behavioral or attitude problems that do not amount to criminal conduct.

74.     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. Whatever the case, the child’s material and procedural rights must be preserved.  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.[67]

2.        The Principle of Last Resort

75.     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

76.     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.  For that reason, the use of the juvenile justice system with respect to children and adolescents must be limited, and the state’s punitive intervention must be reduced to the greatest extent possible, especially where deprivation of liberty is involved.

77.     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.[68]  In the specific case of the deprivation of liberty of children, the Court has added that the use of preventive detention as a rule of last resort must be applied with even greater rigor, since the norm should be to resort in the first place to other, non-custodial measures as alternatives to preventive detention.[69]  Finally, the Court has held that with regard to any deprivation of liberty of children or adolescents, the right to personal liberty cannot be divorced from the principle of "the best interests of the child ...; it is the child's vulnerability that necessitates special measures of protection".[70]

78.     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.

79.     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.[71]  In Guatemala, the statute of limitations is five years in the case of crimes against life, sexual crimes and crimes against a person’s physical integrity; three years for any other type of crime that is prosecuted by the state, and six months for crimes charged by private parties and petty offenses.[72]  In Uruguay, the statute of limitations is two years for very serious crimes, and one year for serious crimes.[73]  The Commission is recommending that statutes of limitations within the juvenile justice system be shorter than those in the regular criminal justice system for the same punishable offense, in keeping with the principle of the exceptionality of prosecution.

80.     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.  States must take whatever measures they can to minimize children’s contact with the juvenile justice system and regulate, in a proportional way, the statutes of limitations and limit the use of the deprivation of liberty –whether as preventive detention or sentence- when criminal laws are violated.
 

3.        The Principle of Specialization

81.     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.

82.     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.

83.     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.[74]  The Commission, for its part, has also spoken of the need for special treatment and specialized courts.[75]

84.     The Court has also explained that in a specialized criminal jurisdiction for children,[76] 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.[77]

85.     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.

86.     One of the Commission’s main concerns with respect to the principle of specialization within the region is the situation in those States where minors can be barred from the juvenile justice system and tried by adult courts.  For example, the information compiled by the Commission[78] 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.[79]  Second, judges are empowered to decline the juvenile court’s jurisdiction in a case, so that the case is transferred to adult courts.  Third, the prosecutor has discretionary authority to present cases in an adult court rather than a juvenile court.  And fourth, 34 States have laws currently in force to the effect that “once an adult, always an adult”, which means that a child previously tried as an adult will automatically be tried in adult court for any subsequent alleged violations of criminal law, petty offenses are not generally included.

87.     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.[80] In other States, judges have discretionary authority to determine whether a child should be transferred to adult courts.  For example, in Suriname, this can be done in the case of children between the ages of 16 and 18.[81]

88.     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.  Something similar happens in Argentina where Decree-Law 22,278 retains a system in which juvenile offenders are sentenced and/or released according to the provisions of the adult criminal justice system.  This means that minors can receive the maximum penalties allowed under Article 80 of the Argentine Penal Code, namely imprisonment and confinement for life.

89.     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, the personnel staffing these systems do not always receive training in children’s growth and development and children’s human rights, the kind of training that would enable them to exercise their discretionary authority with respect to children in a manner consistent with all the principles of human rights. Furthermore, in most States, access to the specialized juvenile justice systems is limited, especially beyond the main cities.

90.     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.[82] Nonetheless, the IACHR observes that there are enormous disparities within the region and in the interior of the member States when it comes to the training and preparation of the officers of the juvenile justice systems.  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,[83] 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.[84] The Commission would emphasize how important it is for the States to strengthen and develop training programs in specialized juvenile justice for judges as well as prosecutors and public defenders.

91.     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.  The geographic distribution of the juvenile justice system is a basic criterion by which to evaluate a State’s capacity to try and punish juvenile offenders in accordance with the standards of international human rights law.  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.

92.     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:

... should be qualified and include a sufficient number of specialists such as educators, vocational instructors, counselors, social workers, psychiatrists and psychologists. These and other specialist staff should normally be employed on a permanent basis. This should not preclude part-time or volunteer workers when the level of support and training they can provide is appropriate and beneficial.

93.     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.

94.     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.

95.     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. Proceedings must be both accessible and child‑appropriate. Particular attention needs to be paid to the provision and delivery of child‑friendly information, adequate support for self-advocacy, appropriately trained staff, design of court rooms, clothing of judges and lawyers, sight screens, and separate waiting rooms[85].

96.     The Commission notes that efforts to tailor infrastructure and procedures to the special needs of the juvenile justice systems vary within the region.  For example, during an in loco visit, the IACHR observed that the Family Court serving the city of Belize, though overcrowded, has gone to some effort to adapt to children’s needs.  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.

97.     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.  On a visit to the Kingston Children’s Court, the Commission learned that the Juvenile Court and the Family Court share the same facilities.  The overcrowding is so severe that people were sitting on the stairs.  Hearings are not scheduled, so that persons arrive at 10:30 a.m. and wait all day for a hearing; often they have to return another day.  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.  According to the attorneys, the police intervene and order the accused to address the judge as “Your Honor” or to stand up straight.  Similar scenes were repeated in many juvenile courts in the region.

98.     The IACHR again emphasizes the point that promoting routine, comprehensive programs to instruct the officers of the juvenile courts in children’s growth and development and their human rights is a necessity and an obligation.  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.

4.        The Principle of Equality and Non-Discrimination

99.     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.  The Court has held that “not all differences in legal treatment are discriminatory as such, for not all differences in treatment are in themselves offensive to human dignity”.^[86]  In determining whether a difference in treatment is arbitrary, the Commission has used four criteria: legitimate end, suitability, necessity and proportionality.^[87]  And so, if a child or adolescent is subjected to some difference in treatment, that difference will have to be examined on the basis of those four criteria to determine whether it is both reasonable and objective and, therefore, whether it is or is not compatible with Article 24 of the Convention.

100. For its part, Article 1(1) of the American Convention prohibits discrimination in the exercise of the rights protected under the American Convention.  As to the scope of these provisions, from its earliest case law, the Inter-American Court has held that Article 1(1) includes a prohibition on discrimination in the exercise and application of the rights recognized therein, whereas Article 24 of the American Convention prohibits any type of discrimination, not only with regard to the rights embodied therein, but also with regard “to all the laws that the State adopts and to their application.”^[88]  The Court echoed this distinction where it held that “if the State discriminates upon the enforcement of conventional rights containing no separate non-discrimination clause a violation of Article 1(1) and the substantial right involved would arise. If, on the contrary, discrimination refers to unequal protection by domestic law, a violation of Article 24 would occur.”^[89]

101. 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.[90]  Here, the Court has observed that: “there are certain factual inequalities that may be legitimately translated into inequalities of juridical treatment, without this being contrary to justice.  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.”^[91]  These distinctions could constitute affirmative actions that endeavor to achieve substantial equality through differentiated treatment of, for example, historically disadvantaged groups.

102. 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,[92] there are cases in which the scrutiny for compliance with the parameters of legitimate end, suitability, necessity and proportionality is more exacting.^[93] This is because by their very nature, those categories are considered “suspect.” In such cases, the distinction is presumed to be incompatible with the American Convention and a higher burden of proof rests with the States to disprove that prima facie presumption.^[94]  Furthermore, the reparations to be made for this type of discrimination must “be designed to change this situation, so that their effect is not only of restitution, but also of rectification” and must be geared toward identifying and eliminating the causal factors of discrimination, especially in the case of structural discrimination.^[95]

103. The Commission has also examined the concept of indirect discrimination or the disproportionate impact of laws, actions, policies, etc., that while seemingly neutral, have a differential impact on certain groups.[96]

104. According to the varying interpretations of the right of equality, a State’s actions and omissions may be related to rights enshrined in the American Convention or they may be related to any undertaking of the State that does not affect the enjoyment of Convention-protected rights.[97]  These are the reasons why the IACHR has insisted that although certain criteria may be used as a basis, the applicable Convention provisions must be determined on a case-by-case basis by means of an analysis that takes into account the individual or group of people affected, the reasons behind the alleged discrimination, the rights or interests at stake, the actions or omissions that gave rise to the discrimination, and other considerations.[98]

105. 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:

1.  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.

2.  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.

106. 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.

107. The Committee on the Rights of the Child has also examined the application of the principle of non-discrimination with respect to children.[99]

108. Given the above, the Inter-American Court’s interpretation is that:

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.  Instead, it serves the purpose of allowing full exercise of the children’s recognized rights[100].

109. 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.  In this report’s discussion of the principle of legality, the Commission pointed out that subjecting children to the juvenile justice system for “status offenses”, i.e., types of behavior that do not constitute either crimes or misdemeanors when committed by an adult, is a violation of the principle of legality.  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.

110. The Commission observes that within the region children are often referred to as being ‘beyond parental control’.[101]  Behavior such as using foul language, truancy or frequenting bars can end up in the child being sent to institutions to deprive them of their liberty.  According to the information that Jamaica’s Office of the Children’s Advocate supplied to the Commission, in 2007, 382 children were ordered to be sent to correctional institutions and were admitted.  Of these, the largest number (42) consisted of children admitted because they were acting ‘beyond parental control’.[102]

111. 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.[103] The Commission must emphasize that the juvenile justice system cannot address problems with school conduct unless a criminal law has been violated. 

112. 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. … These acts, also known as Status Offences, are not considered to be such if committed by adults. 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[104].

113. 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.

114. 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.

115. 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.[105]  According to information received by the Commission, in the United States, over half the children aged 12 and under who have been transferred to adult courts charged with committing crimes against persons have been Afro-descendants.  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.[106]  The Commission has also been told that in some States like California and Pennsylvania in the United States, Afro-descendant children are 20 times more likely to receive life sentences without the benefit of parole.[107]

116. After an official visit to Canada, the United Nations’ independent expert on minority questions had the following to say:

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[108].

117. In its General Comment No. 11, on indigenous children and their rights under the CRC, the Committee on the Rights of the Child observes with concern the disproportionately high rate of incarceration among indigenous children and commented that “in some instances this may be attributed to systemic discrimination from within the justice system and/or society.”[109]  The Commission, too, has received information to the effect that in Canada, children from aboriginal communities represent 4.5% of the total population, but 24.9% of all children deprived of their liberty.[110]  However, the Commission also finds that measures are being taken to avoid the disproportionately high numbers of minorities in the juvenile justice system.  Canada’s Youth Criminal Justice Act provides that all available sanctions other than custody that are reasonable in the circumstances should be considered for all young persons, with particular attention to the circumstances of aboriginal young persons.[111]

118. 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.[112]  It is also disturbed by the fact that the decisions about whether to bring charges or to release a child who is deprived of his or her liberty frequently hinge on the degree of supervision that they can received from their parents.  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.  Likewise, when the father or mother has drug or alcohol problems or has had trouble with the law, or are simply poor, their capacity to supervise the child is presumed to be compromised and will influence a judge’s decision about whether or not to incarcerate a child.

119. In Guyana’s response to the questionnaire, the Commission received disturbing information to the effect that in 2007, and again in 2008, approximately 50% of the children ordered into the country’s only correctional facility were sent there for vagrancy.  The historical notion of the juvenile justice system as an extension of social services and as a way of solving children’s social problems has resulted in unlawful interventions in the case of children from the socioeconomically disadvantaged sectors.  The IACHR also notes that a study was undertaken in 2003 to verify the human rights violations that occurred in Guatemala during implementation of the so-called “Plan Escoba”. The study found that the majority of those detained were poor, uneducated children from marginal areas. In 70% of the cases, they were arrested for possession of narcotic drugs.  However, in many of these cases, Guatemala’s National Civil Police supplied fraudulent evidence to justify the arrests.[113]

120. The Commission also observes that girls in the Americas are frequent targets of discrimination by the juvenile justice system because of their gender.  Girls are often incarcerated for having committed acts that do not constitute crimes if committed by an adult or acts for which boys, unlike girls, are rarely punished, such as alcohol consumption and smoking, running away from home or having sexual relations, due to gender stereotypes associated with a concept of women’s subordination to men.[114]  Furthermore, because girls represent a relatively small percentage of the offenders in the juvenile justice system, correctional facilities for girls often either do not exist or are in a terrible condition when compared with the facilities for boys.  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.  Girls’ particular needs frequently go unaddressed, such as the need for reproductive health services.  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. As the I/A Court H.R. has observed, de facto and de jure differences based on gender stereotypes associated with women’s subordination to men “become one of the causes and consequences of gender-based violence against women.”[115].

121. 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[116] 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.[117]  In the Commission’s view, while criminalization of sexual orientation is discriminatory for anyone, it can involve a more severe violation of rights in the case of children and adolescents because of the particularly harmful psychological effects it has on youngsters whose sexual identity is still in the process of maturing and who are extremely vulnerable as a result.

122. 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.

123. The Commission has followed up on the discrimination that children suffer as a result of the "mara" or “gang” phenomenon.[118]  The Commission is aware that the 'mara' phenomenon is a particularly complex one that is rooted in, and developed out of, an environment of social exclusion and inequality, characterized by a lack of opportunities for the majority of the population.

124. Following the visit that the Commission and UNICEF made to El Salvador, Guatemala and Honduras in 2004, 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. … Our greatest concerns about the human rights situation of members or former members of maras or pandillas have to do with the extreme poverty, murders, violations of personal well-being, arbitrary arrests, mistreatment, stigmatization, and discrimination to which they are subjected[119].

125. 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. Unfortunately, the measures taken against maras, which are steeped in very repressive rhetoric (which includes special anti-mara groups and “mara hunts”) does not suggest any promising progress in this regard, and may even have exacerbated the situation to the point that the root-causes of the mara phenomenon are being ignored.[120]

126. The United Nations Human Rights Council observed the following situation in Honduras in 2006, which demonstrates that subsequent to the IACHR/UNICEF joint visit to that country, discriminatory conditions of detention of 'maras' persist:

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.  Rehabilitation and the preparation for a life outside the “illicit association” upon release thereby become all but impossible.  On the contrary, membership and hierarchical structures within the mara are cemented under the Government’s authority[121].

127. In 2002, Honduras approved the Police and Social Co-existence Act,[122] which allowed large-scale arrests of children and adolescents “suspected of belonging to 'maras'” (because they had tattoos or other means of identification).  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 18.[123]

128. Article 332 of the Honduran Penal Code (known as the “Anti-Gang Law”) was amended again in 2005.[124] The United Nations Human Rights Committee recognized the far-reaching language of the article and recommended that it be amended.^[125]  Discussing that same article, in 2009, the Committee against Torture was also concerned “that a suspected member of an ‘unlawful association’ can be arrested without an arrest warrant and that his/her detention on remand is mandatory. It is further concerned at the repressive social policy in combating ‘unlawful associations’, or ‘maras’ or ‘pandillas’, which does not adequately consider the root causes of the phenomenon and may criminalize children and young people on the sole ground of their appearance.”^[126]

129. In the Report of the Working Group on Arbitrary Detention, the United Nations Human Rights Council acknowledged that Article 332 does not appear, in principle, to be incompatible with human rights norms.  It did, however, question whether a term of imprisonment of 12 to 20 years is necessary in a democratic society for simple membership of a “mara”. 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.  The Human Rights Council was of the view that the preventive detention that is mandatory for persons detained on charges under Article 332 of the Criminal Code, might well be a violation of the International Covenant on Civil and Political Rights, which provides that “it shall not be the general rule that persons awaiting trial shall be detained in custody.”[127]

130. The Committee on the Rights of the Child stated that the offense of ‘unlawful association’ criminalized in Article 332 of the Honduran Penal Code had been interpreted too broadly, which in some instances could amount to a violation of Article 15 of the CRC.  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.[128]

131. Based on the foregoing considerations, the Commission concurs that Article 332 of the Honduran Penal Code allows such a wide degree of discretion that it could lead to the arbitrary detention of many children and adolescents based merely on the perception of membership of a ‘mara’.

132. 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.[129]  With specific reference to the situation in Honduras, the Court has recognized the stigmatization of these groups and has stated that:

... in attention  to the principle of equality and nondiscrimination, the State cannot allow that its agents, nor can it promote in the society practices that reproduce the stigma that poor children and youngsters are conditioned to delinquency, or necessarily related to the increase in public insecurity. 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[130].

133. A similar situation occurred in El Salvador when, in July 2003, a police operation called the “Plan Mano Dura” Tough-On-Crime Plan was introduced. Special legislation was enacted that made it a crime for children to belong to a mara.[131] Under this law, many children were held in preventive custody only to have the charges against them dismissed or were acquitted in court for lack of evidence.  According to the information the Commission has received, children were detained merely on the appearance of gang membership.[132]  In 2005, this law was replaced through an amendment to Article 345 of the Penal Code, which criminalized membership of a group “when the group engages in violent acts or uses violent means to induct members or keep them in the gang, or when members leave the gang.”  The offense of gang membership carried a penalty of 3 to 5 years in prison; the penalty for gang organizers or gang leaders was 6 to 9 years in prison.[133]  In 2010, the Law Banning Maras, Gangs, and Criminal Groups, Associations and Organizations was enacted. 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.[134]

134. Based on information on Guatemala acquired in 2010, 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.^[135]  The Commission observes, however, that in 2004, a series of bills were introduced in the Guatemalan Congress with the intention of criminalizing membership in maras and gangs, and all the symbolic expressions of membership in gangs, especially tattooing alluding to the groups.^[136]  However, according to the information available, these bills have not been passed, although presently there are proposals similar to those of El Salvador and Honduras.^[137]  Both the Commission and the Committee on the Rights of the Child are concerned that Guatemala is not paying sufficient attention to the root causes of the mara phenomenon, which thus far have been dealt with primarily as a criminal justice problem.^[138]

135. The Commission also learned that the Mexican media estimate that approximately 3,000 children and adolescents have been detained since 2006 for allegedly participating in activities associated with organized crime, all against the backdrop of the violence that Mexico is currently enduring.[139]  UNICEF observed in this regard that “accurate statistics are needed on the number of adolescents in conflict with the law, disaggregated into categories for both the federal and local levels”. It also recommended that “circumstantial responses that serve to reinforce the stigmatization and criminalization should be avoided.”[140]

136. 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.  Instead, they need to develop public policies on children’s human rights, taking an approach that emphasizes observance of the general principles of “comprehensive protection” and the “best interests of the child.”   These must be the principles behind all programs and services in education, health, protection, nutrition, and child welfare, both within the family and within the community.  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.^[141]

137. 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.

138. 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.[142]

5.       The Principle of Non-Regressivity

139. 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.

140. 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.

141. 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.

142. A case in point is related to Ecuador, where in July 2010, 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, 16-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.[143]  At the same time, the Ministry of Justice sent a bill intended not to punish minors, but to increase the penalty for adults who use children for the commission of crimes.  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.[144]

143. Another case is that of Panama, where in late 2010, 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.

144. 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.

C.    Guarantees in the Juvenile Justice System

145. 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.[145]

146. 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.[146]

147. Furthermore, the Commission has stated that the child must enjoy certain specific guarantees “in any proceeding where his or her liberty or any other right is at stake.  This includes any administrative proceedings.”[147] The Court has held that the rules of due process and judicial guarantees must be applied not only in all judicial proceedings but also in all other proceedings that the State pursues[148] or that are under its supervision.  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.[149] 

148. 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.

149. The Court has clearly stated that the obligation to observe the standards and principles of due process of law in judicial or administrative proceedings at which children’s rights are being decided includes:

... rules regarding competent, independent, and impartial courts previously established by law, courts of review, presumption of innocence, the presence of both parties to an action, the right to a hearing and to defense, taking into account the particularities derived from the specific situation of children and those that are reasonably projected, among other matters, on personal intervention in said proceedings and protective measures indispensable during such proceedings[150]

150. 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.

151. 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.  In Guyana, for example, the Children’s Legal Aid Project, supported by UNICEF, provides free legal services to those juvenile offenders who request them.[151] In Haiti, too, a UNICEF-supported project provides the services of an attorney to children free of charge.[152]

152. Nevertheless, during its in loco visit to Jamaica from December 1 through 5, 2008, 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 2009, 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.

153. Similarly, in some States like Brazil, the information compiled shows that even though the law states that children are to be guaranteed ample, independent, and expert defense, the state public defender’s offices are either not present in a district or are not there in sufficient numbers, with the result that, at times, proceedings are conducted without defense counsel being present.[153]  Furthermore, even though Brazilian law provides that defense counsel is to participate in the preliminary police stage of the inquiry, the IACHR has received information indicating that children are interrogated by the prosecutor without the presence of a defense attorney.[154]  The Commission was troubled to receive information on a 2006 study concerning Montevideo, Uruguay, which found that in 73% of the cases, statements were taken from the children prior to the court proceedings, without observing the guarantees of due process, especially those pertaining to the right of defense.[155]

154. 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.

155. As for the children’s right to participate in the proceedings, the Commission observes that many of the laws in the hemisphere have adopted mechanisms to ensure this right, although not always with the safeguards necessary to guarantee that children are kept well informed and in a position to exercise that right in keeping with their abilities.  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.  The Supreme Court of Buenos Aires Province, for example, has ruled that convictions are to be automatically overturned if the courts failed to respect the child’s right to be heard, whatever the child’s age.

156. 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. The Commission has received information suggesting that in a number of States the financial and human resources are not distributed equitably between the Public Prosecutor’s Office and the Public Defender’s Office, which distorts the balance that must be struck between the two sides in a proceeding and violates the principle of equality of arms.

157. 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.

158. Furthermore, the information the Commission has received reveals the absence of clear standards and policies regarding the elimination of children’s personal particulars on record in the juvenile justice system. 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.[156]  Also, the Commission is troubled by cases in Mexico, where children and adolescents have been stigmatized in the media and publicly accused of allegedly committing various crimes, without ever being tried, all of which violates the principle of the presumption of innocence.[157]

159. 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.[158]

160. 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 (55.5%) instituted in the juvenile justice system are resolved within less than a month.[159] 

161. 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.

1.       A Competent Judge

162. Under the principle of specialization in the juvenile justice system, all proceedings that involve children under the age of 18 must be heard by a judge who specializes in juvenile justice, in keeping with every person’s right to be heard by a competent, independent, and impartial tribunal, previously established by law.

163. 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.

164. As part of the child’s right to a competent judge, States must ensure that cases involving children under the age of 18, but over the minimum age of criminal responsibility, will be heard only by judges who are specialists in the area and not by the regular criminal court judges.

2.      The Presumption of Innocence

165. Article 8 of the American Convention applies with equal force to proceedings in the juvenile justice system. This provision reads as follows:

… Every person accused of a criminal offense has the right to be presumed innocent so long as his guilt has not been proven according to law. During the proceedings, every person is entitled, with full equality, to the following minimum guarantees: … g. the right not to be compelled to be a witness against himself or to plead guilty.

166. On this same subject, Articles 40(2)(b) and 40(2)(i) of the Convention on the Rights of the Child provide that:

…States Parties shall, in particular, ensure that: … b) Every child alleged as or accused of having infringed the penal law has at least the following guarantees: i) To be presumed innocent until proven guilty according to law.

167. 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. … Untried detainees should be separated from convicted juveniles.

168. The Inter-American Court, for its part, has held that the principle of the presumption of innocence “demands that a person cannot be convicted unless there is clear evidence of his criminal liability. If the evidence presented is incomplete or insufficient, he must be acquitted, not convicted”[160].

169. The IACHR has observed that before the Convention on the Rights of the Child entered into force, judges played the role of “protector” which, when the child was at risk or in a vulnerable situation, gave them the authority to bypass the child’s rights and guarantees.  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.  However, with the adoption of the Convention on the Rights of the Child, judges now have the obligation to respect children’s rights.  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.[161]

170. The IACHR urges the States to guarantee that children accused of violating a criminal law shall be presumed innocent and not be subjected to measures of “protection” unless their responsibility has been established in a proceeding in which the rules of the juvenile justice system are observed.

3.     The Right of Defense

171. 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.  The notion that children did not need legal counsel to prepare their defense because the judge was there to protect the child’s interests, was abandoned with the adoption of the Convention on the Rights of the Child.  Under the previous system, a child’s defense counsel was there only to assist or cooperate with the judge.

172. 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.

173. The Inter-American Commission has observed that the right of defense “includes several rights: to have the time and means to prepare their defense, to have an interpreter or translator, to be heard, to be informed of the charges and to examine and offer witnesses.”[162] It also pointed out that “in all proceedings and from the time he or she is charged the … State has the legal duty to provide a child with a court-appointed attorney if he or she has not engaged private representation.”[163]

174. The principle of specialization must also be observed with respect to the child’s right of defense, which means that the attorneys or social workers appointed to defend the child must be trained in children’s rights and specialize in juvenile justice.

175. 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.

4.     The Principle of Rebuttal

176. 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.

177. 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.

178. 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.

5.     The Right to be Heard and to Participate in the Proceedings

179. The IACHR has stated that “the right of children to be heard addresses the opportunity to express their opinion in any proceedings where their rights are discussed, insofar as they are able to form their own judgment on the matter.”[164]  In the Commission’s view, the Convention on the Rights of the Child “demands recognition of the child’s autonomy and subjectivity and determines the weight that his or her opinion can and should have in the decisions of adults.”[165]

180. As for the child’s intervention in the proceedings, Article 12 of the Convention on the Rights of the Child provides that:

1. 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.

2. 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 [166].

181. 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.

182. This report has already observed that juvenile justice applies only in the case of children who have reached the minimum age at which they are deemed to have the capacity to violate the law, and up to the age of 18.  The fact that these children are deemed old enough to face the juvenile justice system means that their standing as subjects of the proceedings has been acknowledged and their right to participate in the proceedings must be recognized and their opinions taken into account.

183. However, even within this age bracket, the system must assume that the capacity of a 12-year-old is not the same as that of a 17-year-old.  Hence, some provision has to be made for the extent of a child’s participation in the proceedings, in order to effectively protect his or her rights in a manner that is in the best interests of the child.

184. The Commission shares the Inter-American Court’s position that judges in the juvenile justice system must:

take into account the specific conditions of the minor and his or her best interests to decide on the child’s participation, as appropriate, in establishing his or her rights. This consideration will seek as much access as possible by the minor to examination of his or her own case[167].

185. Here, the Court has observed that the child, because of his or her age or other circumstance, may not be able to critically judge or to reproduce the facts on which he or she is rendering testimony and the consequences of his or her statement, in which case the judge can and must be especially careful when assessing the statement.  Obviously, such a statement cannot be regarded as dispositive when made by a person whose age is such that he or she lacks the civil capacity to act, to make a will, or to exercise rights on his or her own.[168]

186. The Court has also held that “any statement by a minor, if it were indispensable, must be subject to the procedural protection measures that apply to minors, including the possibility of remaining silent, the assistance of legal counsel, and the statement being made before the authority legally empowered to receive it”.[169]

187. With respect to children facing the juvenile justice system, States must ensure that all procedural measures of protection for children are guaranteed, including the possibility of not testifying or remaining silent, until the person charged with the child’s defense is assigned to the case.  Any possibility that children give declarations tantamount to a confession must be eliminated.[170]

188. States must also prohibit any evidentiary activity on the part of the police or any other authority that fails to respect the guarantees of due process.  Special care must be taken to respect a child’s right to remain silent and not to testify against himself or herself.

189. The Commission also concurs with the Committee on the Rights of the Child in the sense that proper exercise of the right to participate in the process means that the child must be informed of the charges and of the process within the juvenile justice system.  In the words of the Committee,

... in order to effectively participate in the proceedings, must be informed not only of the charges ..., but also of the juvenile justice process as such and of the possible measures. Besides, the child needs to comprehend the charges, and possible consequences and penalties, in order to direct the legal representative, to challenge witnesses, to provide an account of events, and to make appropriate decisions about evidence, testimony and the measure(s) to be imposed[171].

190. Rule 14(2) of the Beijing Rules provides that the proceedings shall be conducted in an atmosphere of understanding, which allows the child to participate therein and to express himself or herself freely. In the Commission’s view, the authorities have an obligation to ensure that the child understands each of the charges being brought against him or her; but it also means that children facing proceedings in the juvenile justice system must be assisted by counsel from the outset in order to be well informed.

191. This means explaining to the child the consequences of being brought before the juvenile justice system, and doing so in linguistic register appropriate to his or her age.  It also means that States have an obligation to provide personnel fluent in the child's own language, particularly in the case of indigenous children and children of other cultures.  The child therefore has the right to be assisted by an interpreter, at no cost to the child, and persons trained to work with children with special needs.

6.     The Participation of Parents or Guardians in the Process

192. The Inter-American Court has held that members of the child’s family or the child’s guardian must be notified when children are facing the juvenile justice system.  It observed that:

... the authority carrying out the detention and in charge of the detention place for the minor must immediately notify the next of kin or, otherwise, their representatives for the minor to receive timely assistance from the person notified.[172]

193. In addition to notification, the Commission considers that every effort must be made to enlist the participation of a child’s parents or guardians in the proceedings in the juvenile justice system, except in those cases where such participation could be prejudicial to the child’s best interests and an adequate defense.

194. Rule 15(2) of the Beijing Rules is very clear in this regard and reads as follows:

The parents or the guardian shall be entitled to participate in the proceedings and may be required by the competent authority to attend them in the interest of the juvenile. They may, however, be denied participation by the competent authority if there are reasons to assume that such exclusion is necessary in the interest of the juvenile.

195. The Committee on the Rights of the Child has stated that:

parents or legal guardians should also be present at the proceedings because they can provide general psychological and emotional assistance to the child. The presence of parents does not mean that parents can act in defense of the child or be involved in the decision-making process. However, the judge or competent authority may decide, at the request of the child or of his/her legal or other appropriate assistance or because it is not in the best interests of the child (art. 3 of CRC), to limit, restrict or exclude the presence of the parents from the proceedings.[173]

196. As with the child facing the juvenile justice system, his or her parents or guardians need to be properly notified and, from the very outset, need to be informed of the charges against the child and how the juvenile justice system will proceed.

197. Finally, it should be pointed out that while the participation of the parents or guardians is important, the courts must ensure that they will not be criminalized for their children’s conduct.  States must also ensure that the children whose parents are not present for the proceedings are not treated more harshly.

7.     The Public Nature of the Proceedings and Respect for Privacy

198. The principle of the public nature of the proceedings, set forth in Article 8(5) of the American Convention, has unique limitations in the case of juvenile justice, where the offender’s criminal record must be kept confidential and any information that could be used to identify the child accused of violating the law is not to be made public.  In juvenile criminal proceedings, the child’s right to privacy must be respected at all times, as provided in Rules 8(1) and 21(1) of the Beijing Rules and Rule 3(12) of the Tokyo Rules.

199. The Inter-American Court has held that whenever the state deems it necessary to institute judicial proceedings against a minor, the public nature of the proceedings must be strictly regulated.[174]  As the Court established,

... When the proceedings address issues pertaining to minors, which affect their lives, it is appropriate to set certain limits to the broad principle of the public nature of the proceedings that applies to other cases, not regarding access by the parties to evidence and decisions, but rather regarding public observation of the procedural acts. These limits take into account the best interests of the child, insofar as they protect him or her from opinions, judgments or stigmatization that may have a substantial bearing on his or her future life[175].

200. Similarly, and based on the right to privacy established in Article 16 of the CRC, the Committee on the Rights of the Child has recommended:

... that all States parties introduce the rule that court and other hearings of a child in conflict with the law be conducted behind closed doors. Exceptions to this rule should be very limited and clearly stated in the law. The verdict/sentence should be pronounced in public at a court session in such a way that the identity of the child is not revealed. The right to privacy … requires all professionals involved in the implementation of the measures taken by the court or another competent authority to keep all information that may result in the identification of the child confidential in all their external contacts[176].

201. Also, Rule 8(1) of the Beijing Rules provides that the child’s right to privacy shall be respected at all stages in order to avoid harm being caused by undue publicity or by the process of labeling.

202. The Committee on the Rights of the Child observed the following in this regard:

... No information shall be published that may lead to the identification of a child offender because of its effect of stigmatization, and possible impact on his/her ability to have access to education, work, housing or to be safe. It means that a public authority should be very reluctant with press releases related to offences allegedly committed by children and limit them to very exceptional cases. They must take measures to guarantee that children are not identifiable via these press releases. Journalists who violate the right to privacy of a child in conflict with the law should be sanctioned with disciplinary and when necessary (e.g. in case of recidivism) with penal law sanctions.[177]

203. The Commission, for its part, must once again make the point that a child’s privacy must be taken into account, without adversely affecting the parties’ right of defense or detracting from the transparency of the judicial proceedings, all in order to “avoid absolute secrecy of what occurs during the proceedings, especially with respect to the parties.”[178]
 

8.      Duration of the Process

204. The specialization of the juvenile justice system also extends to the length of the proceedings.  Because of the age of the children facing the specialized system of justice, decisions must be delivered swiftly, but without denying anyone their due process guarantees.  The importance of a reasonable length of proceedings in juvenile justice is not limited to cases where children are deprived of their liberty, because independently of any measures of preventive detention, the duration of the proceedings has an impact on the rights of children.

205. The Committee on the Rights of the Child has observed that:

... the time between the commission of the offence and the final response to this act should be as short as possible. The longer this period, the more likely it is that the response loses its desired positive, pedagogical impact, and the more the child will be stigmatized[179].

206. Accordingly, the Court has held that an unjustified delay in deciding cases against children is contrary to the international norms that protect them.[180]

207. The Commission encourages the States to ensure that juvenile court proceedings are conducted within a brief and reasonable duration.  It also urges them to set a time limit by which the court of first instance must issue its ruling, and special time periods for processing appeals and motions in cases involving children accused of violating the law.

9.     Double Instance and the Right of Appeal

208. The right of appeal is one of the fundamental rights protecting children facing the juvenile justice system.  This right allows the accused to turn to a higher judicial authority to appeal any decision that affects his or her interests, so that the higher court may review the lower court’s proceedings.

209. The right to a simple and rapid appeal is guaranteed in Articles 8(2)(h) and 25 of the American Convention and Article 40(2)(b)(v) of the Convention on the Rights of the Child, which provide that if a child is deemed to have violated a criminal law, that decision and any measure imposed as a consequence thereof, shall be reviewed by a higher, competent, independent and impartial authority or judicial body, according to law.  The right to appeal a decision to a higher authority is also guaranteed in Rule 7(1) of the Beijing Rules.

210. The IACHR reiterates that under Article 8(2)(h) of the American Convention and Article 40(2)(b)(v) of the Convention on the Rights of the Child:

The child has the right for a court to review the measure imposed upon him or her, so as to control the punitive power of the authorities. Said guarantee must be in force in any proceedings where the rights of the child are established, and especially when measures that deprive the child of liberty are applied[181].

211. In any event, the right of appeal must guarantee a fresh and thorough examination of any decision being appealed, which means that this recourse must include the possibility of challenging any precautionary measures and penalties, as well as any relevant court ruling.

10.     Non bis in idem and Res Judicata

212. Finally, although the Convention on the Rights of the Child does not contain a non bis in idem or res judicata clause, the Commission recalls that children accused of violating the law are also protected under Article 8(4) of the American Convention, which provides that an accused person acquitted by a non-appealable judgment shall not be subjected to a new trial for the same cause.

213. Where this principle is concerned, the Court stated that “the elements that compose the situation regulated by Article 8(4) of the Convention include ‘a first trial culminating in an acquittal by a non-appealable judgment’.”[182]  For the Inter-American Commission, the purpose of the principle of non bis in idem is “to establish a safeguard for persons acquitted in a non-appealable decision so that they may not be tried in new proceedings for the same offense for which they were tried during the first proceeding.”[183]

214. The principle of non bis in idem also means that a person convicted in a final judgment cannot be convicted again if the facts are the same and if the laws criminalizing the behavior have not changed.  For example, if the conduct punishable under one criminal law is the same conduct punishable under a different law, on occasions even an administrative one, and the facts for which the child was convicted in a final verdict are the same in both cases, then that child cannot be tried and convicted again because this would be a violation of the principle of non bis in idem.   This is not to ignore, however, the possibility of concurrent crimes or the possibility that, although a final verdict has been delivered, the juridical review bodies may choose to downgrade the original crime charged to a lesser one, to the offender’s advantage.

215. The principle of non bis in idem takes on added importance in the juvenile justice system where juvenile justice offers alternatives to adjudication or deprivation of liberty which, once applied, would, as the Committee on the Rights of the Child has observed, result in definitive and final closure of the case without a court conviction.[184]  In the Commission's view, if a case is definitively closed through alternatives to adjudication and deprivation of liberty, States must retain the administrative records, in the first hypothesis or criminal records in the second hypothesis containing confidential information on the children or adolescents who are the beneficiaries of those alternative measures, so that authorities in the juvenile criminal justice system do not re-litigate the same case against the child or adolescent and even convict him or her, in violation of the principle of non bis in idem.

216. As for continuing crimes committed by minors, the Commission is recommending to the States that they take the principle of non bis in idem into account when assessing facts punishable under the juvenile justice system when the person was a minor, so that the regular criminal justice system does not hold the same person criminally responsible for the same set of facts.

11.     Recidivism within the Juvenile Criminal Justice System and for Purposes of the Regular Criminal Justice System

217. The Commission considers that the institution of recidivism as a ground for giving tougher sentences is exceptional within the juvenile justice system.  This means that if the judge opts in favor of one of the alternatives to adjudication of a case, the child in question cannot be regarded as a repeat offender if he or she again violates the law.  Nor can conduct by children below the minimum age of criminal responsibility or the minimum age at which a child can be charged with a crime in the juvenile justice system be taken into account for the purposes of determining recidivism.

218. The Commission also considers that criminal offenses adjudicated within the juvenile criminal justice system cannot be taken into account for the purposes of determining the question of repeat offending in the regular criminal justice system.

12.     Criminal Records within the Juvenile Criminal Justice System

219. The Commission believes that in order to prevent stigmatization of children and adolescents, personal details registered in criminal records must be automatically expunged once they attain adulthood, unless a competent authority, in response to a request filed by an interested party within a reasonable period of time, deems that information to be exceptionally relevant to the preservation of the rights of the child (now an adult) or the rights of third parties, provided that retention of that information serves a legitimate, objective and reasonable end  The same would apply to the administrative records of children subject to alternatives to adjudication.

220. The IACHR concurs with the Beijing Rules in the sense that States must ensure the confidentiality of information contained in the records of children and adolescents in the juvenile justice system who have been accused, prosecuted or convicted of violating a criminal law, and that access to such records should be limited to persons directly concerned with the disposition of the case at hand or other duly authorized persons.  In keeping with the Beijing Rules, the Commission reaffirms that the information contained in the records of juvenile offenders should not be used in adult proceedings in subsequent cases involving the same offender.[185] For the Commission, that person’s criminal record within the juvenile criminal justice system should not be taken into account when determining whether the offense being prosecuted is a repeat offense as an adult.

D.       Alternatives to Adjudication of Cases of Children and Adolescents who Violate Criminal Laws

221. Article 40(3)(b) of the Convention on the Rights of the Child provides that whenever appropriate and desirable, measures will be adopted to deal with children accused of, or recognized as having violated, criminal law without resorting to judicial proceedings, provided that human rights and legal safeguards are fully respected.

222. In keeping with that article, in application of the principle of last resort within the juvenile justice system, and in observance of the special obligations of protection that flow from Article 19 of the American Convention and Article VII of the American Declaration, States must limit the use of the juvenile justice system and offer alternatives to adjudication.

223. The Inter-American Court has pointed out that according to the relevant international standards on the subject, the special jurisdiction for children in conflict with the law and its related laws and procedures should provide, inter alia, for a system for dealing with such children without resorting to judicial proceedings.  The Court explained that the purpose of such a system is to recognize the child’s general vulnerability vis-à-vis judicial proceedings and the greater impact that the experience of standing trial has on a child.[186]

224. In its comment on this article of the Convention on the Rights of the Child, the Committee on the Rights of the Child observed that:

given the fact that the majority of child offenders commit only minor offences, a range of measures involving removal from criminal/juvenile justice processing and referral to alternative (social) services (i.e. diversion) should be a well-established practice that can and should be used in most cases[187].

225. The alternatives existing within the various States of the region vary, are not applied uniformly and are not always the preferred course of action.  As a rule, those alternatives include diversion programs, alternative means of settling disputes and the application of the principle of opportunity, even though these programs may be identified by different names in the domestic law of each state.  However, there is little information available concerning the frequency with which these alternatives are used in the various States of the region.[188]

226. While a number of States have procedures in place that establish alternatives to adjudication for settling disputes, these procedures do not always observe the safeguards necessary to properly protect children’s rights.  The Commission is particularly troubled by the latitude that various authorities have to allow these alternative practices to be implemented in a discriminatory manner or in such a way that arbitrary distinctions are made that are disadvantageous to children belonging to minorities.

227. In all alternatives to juvenile justice, the guarantees of due process must be strictly observed.  To limit the degree of discretion exercised by the authorities, the child must be given the opportunity to express his or her opinion on the matter of dismissal, or must give his or her free and voluntary consent to alternative means of resolving a controversy or diversion measures.  The child must be assisted and advised by defense counsel.[189]  The use of these measures with respect to a child cannot be perceived as establishing a precedent for the purposes of future cases before the juvenile courts in which the same child is accused of an alleged violation of criminal law.  In any subsequent cases, the records will be used for information purposes only, and only the competent authorities of the juvenile justice system will have access to them.  The Commission emphasizes the importance of a review or a judicial remedy to challenge the adoption of these alternative, non-custodial measures.  If the child or adolescent's opinion has not been taken into account or his free and voluntary consent obtained, depending on the measures in question, then the proper remedy should be filed with a judicial authority specialized in this matter.  In all these cases, the best interests of the child and other principles of juvenile justice shall be considered.

228. The Commission urges the States to adopt laws allowing alternatives to adjudication in cases that would otherwise go to court where the child would stand trial to establish his or her criminal responsibility. Were such laws to be adopted, adequate funding would then have to be provided for community programs to ensure their availability nationwide. They would also necessitate continuing training programs emphasizing the harmful effects that the punitive system can have on children and dispelling the notion that misconduct on the part of children requires a tough response through the juvenile justice system.

229. At the same time, the IACHR urges the States to consider the concerns the Commission expressed in this section of the report, and to adopt all necessary measures so that these alternatives can be put into practice in order to respect and guarantee the rights of children and their best interests, especially in the case of crimes not regarded as serious.  The Commission will now describe the alternatives to adjudication that have been implemented in the region.

1.     Dismissal of the Case

230. Under the laws of a number of States, dismissal of a case is one means of exiting the judicial process in the early stages and has been referred to as the principle or criterion of opportunity.  Dismissal of a case means that when a case reaches the court, a decision is made not to pursue court proceedings where certain violations of criminal law are concerned.  The case is dismissed and, as a rule, the State takes no further action.

231. This alternative to going to trial in the juvenile justice system is formulated in different ways in the laws in the hemisphere.  In Costa Rica, for example, the judge can only apply the criterion of opportunity with the consent of the public prosecutor’s office, whereas in Uruguay, the judge can invoke this principle at any point in the process and in any type of proceeding.  In El Salvador, this alternative is reserved for crimes that carry a sentence of no more than three years in prison.  Under Canadian law, the police have a discretionary power to dismiss a case and decide whether a warning, admonition or diversion to a community-based program will suffice, provided the youth acknowledges responsibility for the crime.

232. The IACHR appreciates that the States of the region are enacting into law procedures that allow the authorities not to take a child accused of violating the law through the entire trial and sentencing process, thereby minimizing the negative impact of the criminal justice system on the child.  However, the Commission believes that other mechanisms need to be introduced to ensure that cases are not dismissed on a selective basis, which might constitute discrimination.  The Commission also urges the States to clear away any obstacles preventing them from using this alternative to prosecution in the juvenile justice system, and to make certain that it can be applied to all children, even those with records in the juvenile justice system, and to a wide range of crimes and offenses, thereby increasing the opportunities for dismissal of cases involving children to the maximum extent possible, provided due process through the courts is guaranteed and the rights of the victims are protected.

2.      Alternative Means of Resolving Controversies

233. The Inter-American Court has held that, rather than prosecuting children, “alternative means to solve controversies are fully admissible, insofar as they allow equitable decisions to be reached without detriment to individuals’ rights.  Therefore, it is necessary to regulate use of alternative means in an especially careful manner in those cases where the interests of minors are at stake.” [190]

234. The Commission would like to add that the alternative methods of justice can facilitate reconciliation between the victim and the offender, and can help the child rejoin the community.  These mechanisms can be particularly effective in dealing with juvenile offenders in indigenous communities.

235. The laws in some States of the region provide for reconciliation agreements between the victim and the offender as well as the possibility of mediation and other ways of settling disputes, all in an attempt to deal with an offense presumably committed by a minor, without having to go through the established judicial process.

236. These alternatives typically include restorative justice processes.  The United Nations Basic Principles on the Use of Restorative Justice Programs in Criminal Matters define restorative justice as any program that uses restorative processes or aims to achieve restorative outcomes; it defines the restorative process as any process in which the victim, the offender and any other individuals or community members affected by a crime actively participate together in the resolution of matters arising from the crime, often with the help of a fair and impartial third party or “facilitator”.

237. The experiences within the region in the use of alternative means to resolve conflicts involving child offenders vary.  Generally speaking, the States that do offer alternative ways of resolving conflicts relating to the alleged violation of criminal law by a child, allow such alternatives to be explored only in the case of a non-violent crime.  According to the information received by the Commission, some States, like Costa Rica and Nicaragua, have made these alternatives the rule rather than the exception, whereas in other States, like Uruguay, these alternatives are used in less than 1% of the cases, even though rules allowing their application exist.

238. The Commission was favorably impressed by the information it received concerning a program in the municipality of São Caetano do Sul, in São Paulo, which is the Brazilian state with the highest number of children who are deprived of their liberty. The project has yielded positive results, but has been developed on the initiative of the specialized judge in that municipality.  The Commission has no information about the use of restorative justice elsewhere in Brazil.  It also appreciates the reports received with respect to Canada, where the Youth Criminal Justice Act provides for the establishment of Youth Justice Committees, composed of members of the community interested in youth issues, among them volunteers, professionals, teachers and the police.  According to the information the Commission has received, these committees admit diversions from police and prosecutors and then organize meetings between the victim and the offender for purposes of mediation and reconciliation.[191]  Canadian law also provides for youth justice conferences.  The conference concept was inspired by traditional mechanisms employed by many indigenous communities to address conflicts.  A conference consists of a group of people who assemble to advise on how to deal with a youth in conflict with the law.  Conference participants may include the offender, the victim, and members of the community.  The focus is frequently on achieving the goals of restorative justice.[192]

239. The Commission urges the States to expand the use of alternative means of resolving matters when addressing the problems created by possible violations of the law committed by children.  Alternative means can have a positive effect on the child by facilitating his or her reconciliation with the victim and the community.  The Commission would also underline the importance of ensuring that all the child’s rights are protected when these alternative methods are used, and to limit their use to those cases in which they are needed to ensure the best interests of the child. Specifically, the mechanisms of restorative justice must respect judicial guarantees and not become an alternative to regular justice.

240. Processes of this type could also be used as a means for the victim and the accused to reach agreement as to various crimes, and should be limited to those situations in which sufficient proof to hold the child responsible exists.  Furthermore, they should only be used with the free and informed consent of the victim and the child offender involved in the process.  The accused child offender must be assisted by counsel.  The child’s participation in these processes ought not to be construed as proof or used as background information in subsequent proceedings.  The Commission also believes that these processes must be conducted under court supervision, so that the judge can approve, modify or set aside any agreement reached and ensure that the rights of the child have been guaranteed in a manner befitting his or her best interests and that the necessary information and advice has been provided when securing the consent of the presumed author of the offense and the consent of the victim.[193]

3.     Participation in Diversion Programs or Services

241. Rule 11(1) of the Beijing Rules provides that whenever appropriate, consideration shall be given to dealing with child offenders without resorting to formal trial by the competent authority.  It adds that any diversion involving referral to appropriate community or other services shall require the consent of the child, the parents or guardian, provided that such a decision to refer a case shall be subject to review by a competent authority, upon application.

242. The Committee on the Rights of the Child has stressed that the following factors are particularly vital to safeguarding the child’s rights in diversion programs:

Diversion (i.e. measures for dealing with children, alleged as, accused of, or recognized as having infringed the penal law without resorting to judicial proceedings) should be used only when there is compelling evidence that the child committed the alleged offence, that he/she freely and voluntarily admits responsibility, and that no intimidation or pressure has been used to get that admission and, finally, that the admission will not be used against him/her in any subsequent legal proceeding;

The child must freely and voluntarily give consent in writing to the diversion, a consent that should be based on adequate and specific information on the nature, content and duration of the measure, and on the consequences of a failure to cooperate, carry out and complete the measure. With a view to strengthening parental involvement, States parties may also consider requiring the consent of parents, in particular when the child is below the age of 16 years;

The law has to contain specific provisions indicating in which cases diversion is possible, and the powers of the police, prosecutors and/or other agencies to make decisions in this regard should be regulated and reviewed, in particular to protect the child from discrimination;

The child must be given the opportunity to seek legal or other appropriate assistance on the appropriateness and desirability of the diversion offered by the competent authorities, and on the possibility of review of the measure;

The completion of the diversion by the child should result in a definite and final closure of the case. Although confidential records can be kept of diversion for administrative and review purposes, they should not be viewed as “criminal records” and a child who has been previously diverted must not be seen as having a previous conviction. If any registration takes place of this event, access to that information should be given exclusively and for a limited period of time, e.g. for a maximum of one year, to the competent authorities authorized to deal with children in conflict with the law.[194]

243. A number of States in the region have launched programs under which children are diverted to various types of services or programs.  In the English-speaking countries of the region, these programs and services are often run by the police, as in the case of Belize and Barbados.  In Latin America, these programs are frequently offered by NGOs or social services institutions.  Then, too, judges will frequently divert children to services available for the general public, such as psychological counseling or anti-drug programs.  Under the laws of some States, like El Salvador, diversion requires an agreement between the child and the presumed victim, as well as reparations. Guatemalan law also provides that if a judge believes that no purpose would be served by continuing the proceedings, he or she will summon the parties to a hearing and, with their agreement, will divert the child to community programs, where the child will have the support of his or her family and be under the control of the institution that runs the program.

244. As a general rule, it is the judicial authority that orders alternatives of this type; in some cases, however, it is the public prosecutor’s office that decides this matter, as in the case of Peru.  The Commission observes that police officials may also have discretionary authority to divert a child to some program or service.  When this kind of discretionary authority is exercised by the police, the diversion alternative may end up being selectively applied within the juvenile justice process, which in turn paves the way for discrimination.  Furthermore, the more authority the police exercise, the more likely it is that children who “voluntarily” participate in a police program will feel that they have been pressured or coerced into doing so. In the Commission’s view, children are less likely to feel coerced into participating when the diversion and prevention programs are run by social services that have no ties to the police.

245. For the IACHR, diversion means that the proceedings in the juvenile justice system are definitively closed and the child has been redirected into community-supported programs.  Hence, these cases should not count when determining whether a child is a repeat offender.  Whenever possible, this alternative should seek to avert the institution of proceedings in the formal criminal justice system by redirecting the matter to community-supported services.  Programs that work toward settlement by indemnifying the victim, and those that strive to avoid future violations of the law through supervision and temporary counseling, are considered particularly advisable. As happens in the case of mediation programs, diversion to a service can mean that charges are either not brought or dropped.  Another option is to require the child to complete a program or satisfactorily work for some service for a specific time period before the decision is made either not to bring charges, or to drop charges that have already been brought.

246. In all decisions pertaining to diversion programs or services, the authorities charged with investigating the case and the judges should take rapid and immediate action on a case and should heed the recommendations of experts or social workers who will also be involved in monitoring the results.  All the authorities in these cases should have instruction in the corpus juris of the rights of children; experts and social workers should have a multidisciplinary preparation and approach, especially in areas like psychology.  Parents should be involved when these programs are implemented, and monitor school attendance, provided their involvement is in the best interests of the child.

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