adolescents and young adults deprived of liberty: their relationship with the penitentiary and...
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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.
Juvenile Justice
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.
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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.
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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) Funding4) Independent oversight and monitoring systems5) Data collection, analysis, and formulation of
indicators6) Training and cooperation with civil society
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1.- Institution of policy and specialized legislation on Juvenile Criminal JusticeThat 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:
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.
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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 of indicators
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.
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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 two-tier system of review; measures or penalties designed to provide restitution for the harm caused, and non-custodial 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.¨
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¨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:
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 STANDARDS IN JUVENILE JUSTICE POLICY
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
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MINIMUM STANDARDS ON INITIAL CONTACT WITH JUVENILE JUSTICE
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.
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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.
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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.
