Transcript Diapositiva 1 - Organization of American States

Adolescents and young adults deprived of liberty: Their
relationship with the penitentiary and prison system.
Inter-American Children's Institute (IIN)
Organization of American States
¨States Parties shall ensure that:
No child shall be subjected to torture or other cruel, inhuman or
degrading treatment or punishment. Neither capital punishment nor
life imprisonment without possibility of release shall be imposed for
offences committed by persons below eighteen years of age;
No child shall be deprived of his or her liberty unlawfully or
arbitrarily. The 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 and for the shortest appropriate period of time.¨ Art. 37 CRC
¨States Parties recognize the right of every child alleged as,
accused of, or recognized as having infringed the penal law 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.¨ Art. 40 CRC
Juvenile Justice
The IIN’s concept of Juvenile Justice is framed by two core
aspects that determine the course of any discussion on the
issue:
a) International standards and their application.
b) The public policy on prevention and containment that States
should pursue.
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a) As regards international standards and their application in
different states, the IIN notes the following:
International standards include the CRC and guidelines for states
(United Nations Guidelines for the Prevention of Juvenile Delinquency
(The Riyadh Guidelines); United Nations Standard Minimum Rules for
the Administration of Juvenile Justice (The Beijing Rules); United
Nations Rules for the Protection of Juveniles Deprived of their Liberty;
United Nations Standard Minimum Rules for Non-custodial Measures,
known as the Tokyo Rules.)
It also draws attention to the various standards in the area of human
rights on the principle of comprehensiveness and interdependence that
govern such matters.
Juvenile Justice
International standards should also be interpreted in the framework of two
international processes that reinforce and supplement rules and regulations in this area:
a) The Comments to States Parties and General Comments of the Committee on the
Rights of the Child and other United Nations supervisory bodies;
b) In the inter-American context, the Advisory Opinions, special reports and judgments of
the Inter-American Commission and the Inter-American Court of Human Rights.
Juvenile Justice
In this first main section on standards the IIN always finds it very
useful to study the legislative amendment process undertaken by all
states in the Americas. In this area, particularly significant are the
notable efforts and strides that only in the 1990’s evinced trends toward
the legislative review of laws enacted following the adoption of the
Convention.
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b) Public policy of states.
The IIN considers that this section contains the challenges that most urgently require
attention. State policy entails:
1) Institution of policy and specialized legislation on Juvenile Criminal Justice
2) Definition of institutional roles and responsibilities
3) Funding
4) Independent oversight and monitoring systems
5) Data collection, analysis, and formulation of indicators
6) Training and cooperation with civil society
Juvenile Justice
1.- Institution of policy and specialized legislation on
Juvenile Criminal Justice
That the State adopt policy on juvenile criminal justice
that reflects the philosophy and purposes of the
specialized system, which should advance international
standards and include the following, as a minimum:
 Policy on juvenile crime prevention.
 Definition of the juvenile criminal liability system at its
different stages (preventive, judicial, administrative or
for protection) as well as the possibility of including
restorative justice.
 Policy on rehabilitation or social reintegration (life
plan).
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2.- Definition of institutional roles and responsibilities
A core aspect in light of the experience of the last decade
is to define with the utmost precision roles and
responsibilities in the following contexts at least:
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Judicial and other justice operators
Administrative or the formal protection system.
Community and civil society.
Family
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3.- Funding
A reiterated recommendation of the Committee on the
Rights of the Child is that states allocate resources, an
objective indicator of their commitment to the policy and
the standards.
The IIN is working systematically with states to introduce
participatory mechanisms to objectively determine needs
and find ways to include them in parliamentary
discussions, with priority preferably given to investment
in prevention and resocialization programs for
adolescents and young adults.
Juvenile Justice
4.- Independent oversight and monitoring systems
It is important for states to have in place independent
oversight and monitoring systems to ensure compliance
with requirements and respect for the basic rights of
adolescents and young adults who have been deprived
of liberty or are serving non-custodial sentences.
5.- Data collection, analysis and formulation
indicators
of
States should ensure that they collect, keep a record of,
and analyze data with which to keep abreast of trends
and developments in the juvenile justice sector.
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6.- Training and cooperation with civil society.
Specialized training and capacity building for human
resources involved in any area of the justice system that
specializes in adolescents and young adults in conflict with
the law.
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General considerations of the IIN in this regard:
a).- While it should be admitted that statistically all states
report a rise of juvenile involvement in lawbreaking,
nonetheless, even in countries with the highest incidence
in this regard, the proportion of that population overall
participating in such acts does not exceed eight percent.
According, the approaches adopted to deal with this
population segment should center on prevention and
formal assistance designed to include this group in
universal social protection policies.
Juvenile Justice
General considerations of the IIN in this regard:
b).- The standards in place in all the member states are
framed by the principles set forth in the Convention on
the Rights of the Child. There is also a need to conduct a
thorough review of procedural aspects and fair trial
guarantees, which are exceedingly sensitive issues: The
right of defense, a process inspired by the same
guarantees that adults enjoy in this area; an at least twotier system of review; measures or penalties designed to
provide restitution for the harm caused, and noncustodial measures as the preferred option. Discussions
on minimum age in the framework of General Comment
10 of the Committee on the Rights of the Child. MACR
12.
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MACR: 12.
¨From these recommendations, it can be concluded that a
minimum age of criminal responsibility below the age of 12
years is considered by the Committee not to be internationally
acceptable. States parties are encouraged to increase their lower
MACR to the age of 12 years as the absolute minimum age and
to continue to increase it to a higher age level… At the same
time, the Committee urges States parties not to lower their
MACR to the age of 12.¨
Juvenile Justice
¨The Committee, therefore, recommends that those States
parties which limit the applicability of their juvenile justice
rules to children under the age of 16 (or lower) years, or which
allow by way of exception that 16 or 17-year-old children are
treated as adult criminals, change their laws with a view to
achieving a non-discriminatory full application of their juvenile
justice rules to all persons under the age of 18 years.¨
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General considerations of the IIN in this regard:
c).- State social policies should expressly include a position on the
object and purposes of the specialized juvenile justice system.
Such state policies should cover the review of institutional
roles, harmonize interventions, and seek restitution for the
harm caused, dejudicialized intervention measures, and a
commitment to specific funding.
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Worrying trends:
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Stigmatization
Link between citizen security and juvenile justice
Reduction of the age of criminal responsibility
Stiffer penalties.
Preference for custodial measures
Police brutality and institutionalized violence
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MINIMUM
POLICY
STANDARDS
IN
JUVENILE
JUSTICE
The state can precisely determine the existence of:
 A national plan for prevention and treatment of juveniles in
conflict with criminal law
 Specialized legislation
 A national budget appropriation for the juvenile criminal
justice sector
 An organized National System for Children
 Specialized courts
Juvenile Justice
MINIMUM STANDARDS ON INITIAL
WITH JUVENILE JUSTICE
CONTACT
 Existence of laws containing rules on arrest and referral
 Existence of specialized police
 Existence of detailed measures in the law to avoid judicial
proceedings
 The right of defense is guaranteed
 Guidelines in place that determine the type of intervention to be
applied.
Juvenile Justice
MINIMUM STANDARDS ON PROSECUTION
 Identification of the competent authority (judicial or
administrative organ)
 Fair-trial guarantees are in place
 Social/family investigation reports
 Reasoned decision
 Plurality of non-custodial measures
 Sentencing judges
 Appeal process
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MINIMUM STANDARDS ON ENFORCEMENT OF
MEASURES
Existence of a registry system
Rules of procedure and disciplinary measures
Fit conditions and guarantees for the serving of sentences
Periodic review of the measure
Independent inspections
Training
Community and family participation
Socio-familial reintegration. Post-offense life plan
Reparation of the harm and restorative justice
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Adolescents and young adults deprived of their liberty.
It is understood from all of the foregoing that the Convention
on the Rights of the Child imposes the following obligations on
states parties:
 A specialized justice system for adolescents between the ages
of 12 and 17.
 Implementation of public policies designed to prevent
wrongdoing.
 A system of justice that gives precedence to community and
familial measures designed to repair harm and resocialize or
reeducate offenders.
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 Deprivation of liberty is suggested as a last resort and must be
applied within the framework of United Nations standards on
fair trial guarantees.
 Enforce the measure in purpose-built centers and never in
regular prisons.
 Inform adolescents about the regime to which they are subject
and the disciplinary measures that would apply to them, as
appropriate.
 Receive effective, regular and private legal counsel.
 Continue their education or professional training. In no
circumstances shall the respective certificates include a
reference to their confinement or the center where it was
enforced.
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 Continue to engage in recreational or leisure pursuits.
 Receive information on their rights as juveniles and on
complaints procedures
 Be housed separate from other children who might have a
negative influence on their conduct and from those who are 18
or over and still serving a sentence.
 Be housed in healthy conditions in an adequate physical
environment.
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 Wear ordinary clothes that, therefore, do not distinguish their
condition, either through uniformity or because they have
emblems, monograms or other features that single them out.
 Have access to permitted work.
 Profess their freely chosen religious beliefs
 Receive such medical care and specialized treatment as they
require.
 Receive visits from relatives and communicate regularly with
them.
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 Remain in contact with the local community in order to elevate
their sociability levels.
 Be appropriately treated by the officials in charge of their
custody.
 Appropriate treatment means that children shall not be subject
to collective penalties or be made to act as agents to maintain
order or discipline.
 Be gradually and progressively reintegrated in normal society
and be informed of the stages provided for that reintegration.
 Have recourse to appeal mechanisms to ensure the above
rights.
Juvenile Justice
FINAL CONSIDERATIONS
The best juvenile justice system is that which does not require
institutionalizing interventions but is strengthened by universal
and inclusive public policies.
The principles of best interests and comprehensive protection
are served to the extent that the system of laws, their
observance, and the proactive role of the entities involved
recognize and uphold those principles.
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FINAL CONSIDERATIONS
When the state intervenes and, depending on the seriousness of
the offense, a custodial measure is put into effect, it must be
governed by universal principles in this area, in particular those
that safeguard the fundamental rights of the adolescents and
young adults subject to that system. The system should also be
predominantly educational and be oriented toward the
reintegration of adolescent or young adult offenders in society,
their family, and the community.
IIN
www.iin.oea.org
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