Adolescents and young adults deprived of liberty: Their relationship with the penitentiary and prison system.

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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

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• 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

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• 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

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Juvenile Justice

• The IINs concept of Juvenile Justice is framed
  by two core aspects that determine the course of
  any discussion on the issue
• International standards and their application.
• The public policy on prevention and containment
  that States should pursue.

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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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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
• The Comments to States Parties and General
  Comments of the Committee on the Rights of the
  Child and other United Nations supervisory
  bodies
• 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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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 1990s evinced
  trends toward the legislative review of laws
  enacted following the adoption of the Convention.

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Juvenile Justice

• b) Public policy of states.
• The IIN considers that this section contains the
  challenges that most urgently require attention.
  State policy entails
• Institution of policy and specialized legislation
  on Juvenile Criminal Justice
• Definition of institutional roles and
  responsibilities
• Funding
• Independent oversight and monitoring systems
• Data collection, analysis, and formulation of
  indicators
• Training and cooperation with civil society

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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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Juvenile Justice

• 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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Juvenile Justice

• 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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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 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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Juvenile Justice

• 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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Juvenile Justice

• 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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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 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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Juvenile Justice

• 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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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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Juvenile Justice

• 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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Juvenile Justice

• 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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Juvenile Justice

• 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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Juvenile Justice

• 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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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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Juvenile Justice

• 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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Juvenile Justice

• 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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Juvenile Justice

• 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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Juvenile Justice

• 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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Juvenile Justice

• 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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Juvenile Justice

• 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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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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Juvenile Justice

• 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.

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IIN

• www.iin.oea.org
• jvalladares_at_oas.org

CE00381E