JUVENILE JUSTICE AND HUMAN RIGHTS IN THE AMERICAS
614. In addition to the recommendations detailed in the body of the report, the Inter-American Commission on Human Rights, according to its mandate, is making the following recommendations to the member States:
A. General Recommendations
1. Undertake to comply with their international obligations to protect and ensure the human rights of children, while guaranteeing the special standards of protection that children facing the juvenile justice system require and the obligations to protect and guarantee that the States must ensure to all persons subject to their jurisdiction.
2. Adopt the legislative, administrative and other measures necessary to incorporate the standards and principles of the international corpus juris on children’s human rights into their domestic legal systems and, most especially, their juvenile justice systems
3. Adapt their domestic laws to bring them into compliance with the international obligations to protect and guarantee the human rights of children facing the juvenile justice system and put into practice procedures that ensure compliance with those standards.
4. Guarantee that the standards and principles of the juvenile justice system are applied evenly with respect to all children under the age of 18, and preclude from this specialized system of justice only those children who have not attained the minimum age of criminal responsibility. States should also gradually increase the minimum age of criminal responsibility.
5. Establish alternatives to adjudication in cases involving children accused of violating criminal law, so that their cases can be resolved by means of measures that help their personalities develop and ensure their constructive reintegration into society.
6. Make available specialized juvenile courts, in all regions of the territory, staffed with judges and other officers of the court specializing in juvenile justice and children’s rights.
7. Ensure that any custodial measures ordered where children are concerned, whether for preventive detention or as a sentence for violating the law, are used only as a last resort and for the shortest period of time possible, in full observance of the children’s rights to due process and judicial guarantees.
8. Guarantee that the other rights of children deprived of their liberty are not violated and that they are able to enjoy them in an effective manner.
9. Adopt the measures necessary to combat impunity, while ensuring the State’s capacity to prevent, investigate and punish any violation of human rights resulting from the action or omission of State agents within the juvenile justice system, and from the violence that occurs inside facilities in which children are deprived of their liberty.
10. Make every effort to restore to children in the juvenile justice system any rights that may have been violated; when this is not possible, provide full compensation to those children in the juvenile justice system who have been victims of violence and human rights violations.
11. Incorporate into their domestic laws and put into practice the Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas, adopted by the IACHR.
B. Specific Recommendations
12. Ensure that the juvenile justice system is applied to all persons between the minimum age of criminal responsibility and 18 years of age. To this end, the Commission is recommending the following to the States:
a) Increase progressively closer toward 18 the age at which children could be responsible under the juvenile justice system. Once that minimum age is established, ensure that it never goes lower, in keeping with the principle of non-regressivity.
b) Adopt laws that prohibit children below the minimum age of criminal responsibility from being prosecuted and punished by the juvenile justice system, and prohibit the use of age brackets or “two minimum ages” based on the seriousness of the offense or the personal circumstances of the supposed offender.
c) Adopt laws that prohibit children under the age of 18 from being prosecuted by adult courts, sentenced by the same guidelines that would apply in the case of adults, or required to serve their custodial sentences in adult facilities.
d) Make available the human and material resources needed for the administration of specialized juvenile justice to function properly and in a timely manner.
13. Establish juvenile justice systems that respect the specific legal principles that apply to minors and the special procedures through which the general principles of law are applied to persons who have not yet attained their adulthood. Accordingly, the Commission urges the States to:
a) Ensure that the general principles of comprehensive protection and the best interests of the child inspire any legislation and policy, program or practice that concerns children accused of violating criminal law.
b) Make certain that the juvenile justice system and the sanctions it imposes serve the objectives of this specialized system of justice, which is the rehabilitation of the child and his or her reintegration into society.
c) Observe the principle of legality, introducing any legislative reforms necessary to ensure that the justice system is applied only in the case of conduct that has already been classified as a crime. Furthermore, the States are to abolish any law that criminalizes “status offenses”, i.e., types of behavior that are offenses only when committed by a child but not when committed by an adult, and any norms that allow the juvenile justice system to be applied based on a child’s socio-economic circumstance, such as indigence.
d) Observe the principle of last resort, limiting the juvenile justice system’s intervention and the use of sanctions against minors to exceptional cases and after weighing other available options, and establish rules stipulating when the juvenile justice system shall intervene.
e) Ensure that the principle of specialization is observed, giving the specialized jurisdictional bodies exclusive competence for the prosecution of children charged with criminal offenses; provide continuing training in the rights of children to all those officials and personnel directly involved in juvenile justice proceedings (which includes police, judges, prosecutors, defense attorneys and technical teams of psychiatrists, psychologists and social workers or, in the case of parole or probation, to the personnel in charge of enforcing the sentences, among others); and design procedures and infrastructures that are accessible to and appropriate for children.
f) Respect the principles of equality and non-discrimination, which means ensuring that the norms of the juvenile justice system are not applied with greater frequency or with greater severity in the case of minority children; develop strategies for combating discrimination on the part of the police and court authorities and others who intervene in the juvenile justice system, so as to prevent the stigmatization and criminalization of children from minority communities in the Americas, such as Afro-descendants, indigenous children, Latinos in the United States, disadvantaged children, children with some mental disability, children who belong to maras or gangs, and others.
g) Observe the principle of non-regressivity, by not adopting any legislative or administrative measures that would imply any restriction or regression in the rights that children facing the juvenile justice system enjoy. States should prevent the entry into force of any norm whose purpose is to suspend certain guarantees in proceedings against children accused of violating criminal law, laws that would lower the minimum age of criminal responsibility or the age at which a child would face the regular court system, or any other regressive measures.
14. Make certain that the juvenile justice systems effectively ensure children’s rights to procedural guarantees and judicial protection. The IACHR would especially remind the States of their obligation to:
a) Respect the basic, internationally recognized principles of criminal law, such as: the presumption of innocence, the proportionality of the sentence; nullum crimen sine lege, nulla poena sine lege and non bis in idem.
b) Make notification of the parents or guardians concerning the situation of children facing the juvenile justice system mandatory by law.
c) Ensure that the services of public defenders specializing in juvenile justice are available throughout the national territory, and enable the defense counsel, the child and the parents to confer in private.
d) Ensure observance of the principle of rebuttal, clearly defining the roles that the prosecution and the defense have in the proceedings so as to ensure equality of arms between the two sides.
e) Guarantee the rights of children facing the juvenile justice system to express their opinions, to be heard and to participate in all stages of the proceedings, creating court environments that are child-friendly and ensuring that the children have sufficient, easy-to-comprehend information with respect to the proceedings being conducted against them.
f) Enable parents or guardians to participate in the proceedings in all cases, except when their participation is prejudicial to the best interests of the child. Non-participation by parents or guardians shall not have legal consequences in determining what the applicable penalties are.
g) Ensure that children facing the juvenile justice system have the possibility of appealing to a higher jurisdictional authority to seek a full review of the matter.
h) Establish reasonable maximum time periods within which a child must be sentenced, as well as short time limits for the consideration of motions in the juvenile justice proceedings.
i) Observe the principle of proportionality, limiting the degree of discretion that judges or other officers of the court can exercise when the time comes to determine the type and quantum of the measures ordered as sentences for children found guilty of violating criminal law.
j) Enact laws to the effect that cases involving children are to be private and confidential, and to the effect that no information that could identify a child accused of violating criminal law may be made public.
k) Observe the principle of non bis in idem and res judicata, ensure proper application of the rules governing repeat offense, and establish rules for juvenile records that serve the objectives of the juvenile justice system and the best interests of the child
15. Establish, by law, that alternatives to adjudication must be considered with respect to issues that arise out of a child’s violation of criminal law; order adequate and sufficient programs to implement those alternatives, and encourage judges and the other officers of the juvenile justice system to use those alternatives. To this end, the Commission is recommending the following to the States:
a) Ensure that the special laws and procedures in the juvenile justice system allow sufficient latitude to exercise discretionary authority at the various stages of the proceedings and in the various phases of the administration of juvenile justice, with a view to allowing alternatives to adjudication in cases of violations of criminal law committed by children; that discretionary authority must be regulated in such a way as to prevent discrimination in the exercise of those authorities and protect the accused child’s right to due process and to judicial guarantees.
b) Enact laws stipulating that alternative measures must be considered in all cases involving juvenile offenders, including the possibility of dismissing the case or referring the matter to community-supported services.
c) Ensure that the budgetary appropriation assigned is sufficient to put into practice community-referral (diversion) programs that can provide an adequate response to cases involving juvenile offenders and perform periodic checks to ensure the quality of those programs and their staff.
d) Conduct information campaigns so that those working in the juvenile justice system, especially judges, fully comprehend the advantages that are to be gained by not requiring children to undergo proceedings that will result in punishment, and to focus instead on the children and adolescents and their social reintegration.
e) Enact laws to prohibit the practice of automatically incarcerating children who fail to comply with the obligations imposed as an alternative to adjudication. Furthermore, failure to comply with alternative measures must not constitute a violation of criminal law.
16. Ensure the existence of a range of alternatives to the deprivation of liberty, and make certain that such measures are the first option in the case of minors, both in the preventive phase and in the post-conviction phase. Specifically, the IACHR is recommending the following to the States:
a) Enact and enforce laws that establish various non-custodial alternatives to the deprivation of liberty in the case of minors, with special emphasis on community programs.
b) Ensure that the non-custodial alternatives to the deprivation of liberty are implemented in such a way that the right to due process and the principles of the presumption of innocence and the proportionality of the sentence are observed.
c) Adopt the measures, including budgetary measures, necessary to ensure that the various programs offering alternatives to juvenile detention function properly and are available nationwide.
d) Encourage community members and victims to participate in the design of the non-custodial measures that are tailored to the child’s individual characteristics, as well as the monitoring of the measures.
e) Strengthen the mechanisms to support and monitor children participating in programs offered as alternatives to custodial measures, making it easier for children to fulfill the conditions imposed.
f) Avoid the preventive detention of children before judicial proceedings begin; preventive detention must be reserved for the most exceptional circumstances.
g) Enact laws that prohibit penalties for failure to comply with the conditions of the non-custodial measures ordered, and that stipulate that noncompliance cannot result in stiffer or tougher sentences than the original violation of criminal law would carry.
17. Establish mechanisms to ensure that children are especially protected from unlawful and arbitrary detentions, and to guarantee the rights of children subject to preventive detention. To this end, the IACHR recommends that the States:
a) Enact and enforce laws prohibiting mass arrests of children.
b) Respect children’s right to be separated from the adults even in transfers, to be informed of the charges against them and be advised of their rights, especially with respect to the right to remain silent and not to testify against oneself, to be in communication with third parties, to have contact with one’s family, and to speak with one’s defense counsel as soon as possible.
c) Prohibit the holding of children in either common or special police detention cells.
d) Prevent any form of violence against children during detention and while in police custody.
e) Ensure that the parents or guardians of children who are deprived of their liberty are immediately notified and, in those cases in which the accused child does not have his or her own defense attorney, that the children are assigned pro bono defense counsel specializing in juvenile justice.
f) Guarantee that detained children have the advice of an attorney from the time they are detained. Defense attorneys are to be professionals who specialize in juvenile justice and their services shall be at no cost to the client and paid by the State.
g) Make medical examinations mandatory to attest to the health condition of the child at the time of his or her detention.
h) Establish a system for judicial oversight of detentions of children under the age of 18 which functions effectively and in a timely manner. Detention prior to the court hearing cannot be for more than 24 hours. If States provide a 24-hour period for judicial review of the arrests of adults, the duty of special protection undertaken in Article 19 of the American Convention and Article VII of the American Declaration requires that the review of juvenile arrests be done within an even shorter time frame.
i) Limit the use of preventive detention to those cases in which it serves a legitimate procedural end, established by pre-existing law.
j) Ensure that the court decision to order preventive detention is based on the case at hand, and that it explicitly state the reasons why other alternative non-custodial measures cannot be applied. Furthermore, in order for preventive detention to be warranted, the case must be about an offense or crime that would carry a sentence of the deprivation of liberty.
k) Establish reasonably brief maximum time periods for children’s preventive detention, which, once expired without a conviction will result in the children's immediate release.
l) Establish the opportunity to appeal any order that imposes preventive detention, and set the time period within which the appeal must be decided. Ensure that preventive detention is temporary in nature, by establishing a system of periodic review that can decide to terminate the preventive detention or replace it when a change of circumstance occurs that goes to the reasons why preventive detention was ordered in the first place.
m) Ensure that the infrastructure of the facilities in which children are held in preventive detention are suitable to house children, and that their staff is properly trained to deal with minors. States that have not yet done so must take urgent measures to segregate children in preventive detention from those who have already been convicted and sentenced.
18. Establish specific limits for the enforcement of custodial sentences in the case of children. To this end, the Commission is recommending the following to the States:
a) Guarantee that the custodial sentences for children are used only by way of exception, and as a last resort.
b) Limit the degree of discretion that judges and other authorities can exercise when ordering custodial sentences by establishing minimum ages at which custodial sentences can be given, or age brackets with age-based maximum sentences for children facing the juvenile justice system.
c) Set a maximum length for custodial sentences for children, taking into account the purposes that sentences in the juvenile justice system are intended to serve.
d) Abolish the death penalty and life imprisonment for children under the age of 18, with or without parole.
e) Eliminate sentences for indefinite periods and sentences that are determined by the duration of the rehabilitation program and not by the principle of the proportionality of the sentence.
f) Reduce the excessively long sentences for the commission of certain crimes and abolish the penalty of life imprisonment in the case of children.
g) Establish systems for periodic review of custodial measures that would allow children to be released in those cases in which their continued deprivation of liberty is no longer warranted.
h) Determine that the child’s personal circumstances can only be used to diminish or attenuate the State’s punitive response, and that any consideration of the child’s needs is to be precluded as a sentencing guideline.
i) Adopt the measures necessary to neutralize or diminish the de-socializing effects of the deprivation of liberty, ensuring that any form of intervention will be geared toward strengthening family bonds and community ties.
j) Enact and enforce legislation whereby a custodial sentence can be replaced by a non-custodial sentence while the child is serving his or her sentence, based on periodic evaluations of his or her situation.
k) Develop early release programs, while ensuring that all children serving custodial sentences have access to adequate legal representation so that they may be advised of the opportunities to secure early release.
l) Grant permits to assist the child’s reintegration while he or she is still serving his or her sentence, so that the child is able to spend increasingly longer periods with his or her family, or in the community to which he or she will return.
m) Make review hearings mandatory when the children deprived of their liberty turn 18 and have still not completed their sentence, in order to determine whether they should continue to serve a custodial sentence, whether the custodial sentence might be replaced with a non-custodial measure, or whether they can be released.
19. Ensure that those children deprived of their liberty by a sentence imposed by the juvenile justice system are able to exercise all those rights whose limitation is not warranted on the grounds of their deprivation of liberty. Specifically, the IACHR is recommending the following to the States:
a) Guarantee that those civil, economic, social or cultural rights that children deprived of their liberty can exercise while subject to a custodial measure are not restricted; to that end, specific legislation must be enacted and programs established to allow adequate implementation of that legislation.
b) Ensure that children deprived of their liberty enjoy their rights to life and physical integrity by making certain that independent, qualified medical personnel are assigned to examine such children to check for possible cases of physical torture, abuse, corporal punishment and potential psychological traumas.
c) Restrict the measures that can be used to discipline children subject to custodial measures. In particular, States must respect the principle of legality and the guarantees of due process in disciplinary proceedings. They must also expressly prohibit corporal punishment, solitary confinement and any form of cruel, inhuman or degrading treatment, including the restriction of diet, restriction or denial of the child’s contract with his or her family, collective sanctions and multiple sanctions for the same offense, and any measure that jeopardizes the custodial child’s physical or mental health.
d) Guarantee decent treatment to all children in the custody of State authorities and endeavor to provide to children deprived of their liberty the same access to programs in education, vocational training and recreation. The educational programs must meet the same content requirements and the same requirements in terms of hours of attendance that the educational authorities require of children who are not deprived of their liberty.
e) Guarantee a diet for children deprived of their liberty that is adequate for their health and sufficient for strength, one that takes account of the fact that these children are still growing and developing.
f) Guarantee to children deprived of their liberty the highest possible standard of physical and mental health, by making available adequate medical services and treatment and giving special consideration to their specific needs, particularly in the case of girls, pregnant girls, children with HIV-AIDS, addicts, and others.
g) Ensure that children deprived of their liberty are properly segregated by sex, age, personality and type of offense, and that they are segregated from adults. Children who attain their majority while serving a sentence in the juvenile justice system may not be transferred to adult prisons; instead they should be placed in specific centers within the juvenile justice system, separated from children, or under a special regime.
h) Ensure that the architecture of the juvenile facilities is consistent with the socio-educational objective of the juvenile justice system and that the number of children in any given facility does not exceed its installed capacity. The physical space must also ensure the safety of the children deprived of their liberty, with emergency exits and safety measures to anticipate any type of emergency.
i) Permit and encourage a child’s contact with his or her family and community, decentralizing the juvenile custodial facilities so that children serving custodial sentences are either in or near the community where they or their parents, guardians and friends live.
j) Encourage visits by family members, friends and members of the community by establishing flexible visiting hours and setting up comfortable areas so that the visits serve to strengthen the family bond and ties to members of the community.
k) Provide financial assistance whenever necessary to enable family members to visit the children deprived of liberty and enable the latter to return to their homes at the holidays, so that they can begin to be reintegrated into their communities.
l) Set up a system of records on children deprived of their liberty, being careful to ensure their privacy and not to reveal their names to the public. The records system should be used to monitor the status of every child deprived of his or her liberty. At a minimum, the information should be broken down by gender, age, special skills and reasons for the intervention; the records should also reflect the frequency with which family members visit.
20. Establish programs to assist children after their release, thereby ensuring that the goals of the juvenile justice system are accomplished and that the children are successfully reintegrated into their communities. To that end, the Commission is making the following recommendations to the States:
a) Establish programs to facilitate the children’s return to their communities once they have been in a custodial facility and provide sufficient financial and human resources to enable those programs to function. Encourage the family and the community to participate in these programs’ design and implementation. Ensure also that these services are entirely voluntary and, insofar as possible, are available to all children everywhere, so as to prevent the stigmatization and alienation of the juvenile offenders.
b) Provide subsidies to children upon their release, to better enable them to rejoin their communities, particularly when these subsidies are needed in order to enable the children to attend educational or vocational training programs or to undertake small revenue-producing projects. Establish social reintegration centers for those children who are released but are unable to return to their families.
c) Enact and enforce laws that ensure the confidentiality of the information on record in the juvenile justice system concerning children who have been in conflict with the law and prohibit their use as criminal records in future proceedings when the individual in question is an adult. Those laws should also stipulate that the personal particulars of a juvenile offender are to be automatically expunged from the juvenile justice system’s records when the juvenile offender turns 18 years of age.
21. Establish mechanisms to supervise and monitor the situation of children that have had contact with the juvenile justice system, and mechanisms to investigate, prevent, punish and redress any violation of human rights that occurred within the juvenile justice system. To this end, the Commission is recommending the following to the States:
a) Establish a system of indicators on juvenile justice, based on internationally agreed norms, and ensure that the information is accessible to the public.
b) Ensure the informed participation of children in crafting juvenile justice policy.
c) Through independent institutions, periodically evaluate the workings of the juvenile justice system at all stages, from police intervention to serving of sentence, with a view to gauging the efficacy of the measures taken and identifying areas where violations of the children’s rights might be happening.
d) Establish a regular system for monitoring inspections and visits by independent institutions, and facilitate the effective development of their functions.
e) Also establish a confidential complaint system that is accessible, independent and effective, so that the children and their families can file complaints of alleged violations of the children’s rights in any part of the juvenile justice system, especially inside the facilities in which children are deprived of their liberty.
f) Record all complaints received concerning the workings of the juvenile justice system, conduct a serious, impartial, effective and swift investigation of those complaints and answer all complaints received.
g) In those cases in which it is established that the rights of children in the juvenile justice system have been violated, take steps to impose administrative, civil and/or criminal sanctions against the responsible parties, to avoid a repetition of such events.
h) Compensate the victims for the violations of their rights and provide them with support and services to reverse the effects of the harm caused.
i) Approve codes of conduct for the personnel of the juvenile justice system and establish sanctions and procedures whereby any staff member being investigated for possible violations of children’s rights can be immediately removed from his or her post.