INTER-AMERICAN COURT OF HUMAN RIGHTS

ADVISORY OPINION OC-17/2002
OF AUGUST 28, 2002,
REQUESTED BY THE INTER-AMERICAN COMMISSION ON
HUMAN RIGHTS

Juridical Condition and Human Rights of the Child

Present:

Antônio A. Cançado Trindade, President;
Alirio Abreu Burelli, Vice-President;
Máximo Pacheco Gómez, Judge;
Hernán Salgado Pesantes, Judge;
Oliver Jackman, Judge;
Sergio García Ramírez, Judge and
Carlos Vicente de Roux Rengifo, Judge.

Also present:

Manuel E. Ventura Robles, Secretary and
Pablo Saavedra Alessandri, Deputy Secretary.

THE COURT

composed as above,

renders the following Advisory Opinion:

I
SUBMISSION OF THE REQUEST

1. On March 30, 2001 the Inter-American Commission on Human Rights (hereinafter “the Commission” or “the Inter-American Commission”), in view of the provisions of Article 64(1) of the American Convention on Human Rights (hereinafter “the American Convention”, “the Convention” or “Pact of San José”), filed a request for an Advisory Opinion (hereinafter “the request”) before the Inter-American Court of Human Rights (hereinafter “the Inter-American Court” or “the Court”) regarding interpretation of Articles 8 and 25 of the American Convention, with the aim of determining whether the special measures set forth in Article 19 of that same Convention establish “limits to the good judgment and discretion of the States” with respect to children, and it also requested that the Court express general and valid criteria on this matter in conformance to the framework of the American Convention.

2. According to the Inter-American Commission, the background for the request is that

[i]n various legal frameworks and practices of countries of the Americas, effective exercise of the rights and guarantees recognized by Articles 8 and 25 of the American Convention is not complete with respect to children as individuals and actors under criminal, civil and administrative jurisdictions, as there is the assumption that the obligation of the State to supplement the minors’ lack of full discernment can make said guarantees occupy a secondary position. This involves abridgment or restriction of minors’ right to fair trial and to judicial protection. Therefore, it also affects other recognized rights whose effective exercise depends on effectiveness of the right to fair trial as well as the rights to humane treatment, to personal liberty, to privacy, and the rights of the family.

3. The Commission expressed that there are certain “interpretive premises” that State authorities apply when they adopt special protection measures in favor of minors, which tend to weaken their right to free trial. These measures are as follows:

a. Minors are incapable of full discernment of their acts and therefore their participation, whether personally or through their representatives, is reduced or annulled both in civil and in criminal proceedings.
b. This lack of discernment and legal capacity is presumed by the judicial or administrative officials who, in making decisions based on what they believe to be the “best interests of the child,” attach less importance to those guarantees.
c. Conditions in the child’s family milieu (economic situation and family cohesion, the family’s lack of material resources, educational situation, etc.) become key decision-making factors with respect to treatment when a child or adolescent is placed under criminal or administrative jurisdiction to decide on his or her responsibility and situation in connection with an alleged offense, or to determine measures that affect rights such as the right to a family, right of abode, or right to liberty.
d. Considering that the minor is in an irregular situation (abandonment, dropping out of school, the family’s lack of resources, and so forth) may be used to justify application of measures usually reserved for punishment of crimes applicable only under due process.

4 In its request, the Commission asked this Court to issue a specific ruling on the compatibility with Articles 8 and 25 of the American Convention of the following measures that some States adopt regarding minors:

a. separation of young persons from their parents and/or family, on the basis of a ruling by a decision-making organ, made without due process, that their families are not in a position to afford their education or maintenance;
b. deprivation of liberty of minors by internment in guardianship or custodial institutions on the basis of a determination that they have been abandoned or are prone to fall into situations of risk or illegality, motives which should not be considered of a criminal nature, but, rather, as the result of personal or circumstantial vicissitudes[;]
c. the acceptance of confessions by minors in criminal matters without due guarantees;
d. judicial or administrative proceedings to determine fundamental rights of the minor without legal representation of the minor[; and]
e. determination of rights and liberties in judicial and administrative proceedings without guarantees for the right of the minor to be personally heard; and failure to take into account the opinion and preferences of the minor in such determination.

II
PROCEEDINGS BEFORE THE COURT

5. In its April 24, 2001 note, the Secretariat of the Court (hereinafter “the Secretariat”), in compliance with the provisions of Article 62(1) of the Rules of Procedure of the Court (hereinafter “the Rules of Procedure”) , forwarded the text of the request to the Member States of the Organization of American States (hereinafter “OAS”), to the Inter-American Institute of Children, to the Permanent Council and, through the General Secretary of the OAS, to the bodies of the Organization that –due to their competence- might have an interest in the matter. Likewise, the Secretariat informed them that the President of the Court (hereinafter “the President”), in consultation with the other judges of the Court, ordered that the observations in writing and other significant documents regarding the request must be submitted to the Secretariat no later than October 31, 2001.

6. On August 7, 2001 the Inter-American Institute of Children filed its written observations regarding the request for an Advisory Opinion.

7. Mexico and Costa Rica filed their observations in writing on October 31, 2001.

8. In accordance with the extension for filing of observations granted to the Inter-American Commission by the President, the Commission filed additional specific comments on November 8, 2001.

9. The following non-governmental organizations filed their briefs as amici curiae, between October 16 and 29, 2001:

- Coordinadora Nicaragüense de ONG’s que trabajan con la Niñez y la Adolescencia (hereinafter “CODENI”);
- Instituto Universitario de Derechos Humanos, A.C., of Mexico; and
- Fundación Rafael Preciado Hernández, A.C., of Mexico.

10. In his April 12, 2002 Order, the President convened a public hearing regarding the request, to be held at the seat of the Court on June 21, 2002, beginning at 10:00 a.m., and instructed the Secretariat to, in a timely manner, invite those who submitted their viewpoints to the Court in writing, to participate in the oral proceedings.

11. The following organizations filed their briefs as amici curiae, between June 18 and August 2, 2002:

- United Nations Latin American Institute for the Prevention of Crime and the Treatment of Offenders (hereinafter “ILANUD”);
- Center for Justice and International Law (hereinafter “CEJIL”); and
- Comisión Colombiana de Juristas.

12. On June 21, 2002, before opening the public hearing convened by the President, the Secretariat gave the appearing parties the set of briefs with observations and documents submitted until then.

13. The following parties appeared at the public hearing:

on behalf of the Inter-American Commission on Human Rights:
Mary Ana Beloff.

on behalf of Mexico:
Ambassador Carlos Pujalte Piñeiro;
Ruth Villanueva Castilleja; and
José Ignacio Martín del Campo.

on behalf of Costa Rica:
Arnoldo Brenes Castro;
Adriana Murillo Ruin;
Norman Lizano Ortiz;
Rodolfo Vicente Salazar;
Mauricio Medrano Goebel; and
Isabel Gámez Páez.

on behalf of Instituto Universitario de Derechos Humanos, A.C., of Mexico:
María Engracia del Carmen Rodríguez Moreleón;
Enoc Escobar Ramos;
María Cristina Alcayaga Núñez; and
Silvia Oliva de Arce.

on behalf of Fundación Rafael Preciado Hernández, A.C, of Mexico:
Dilcya Samantha García Espinosa de los Monteros.

on behalf of the Center for Justice and International Law:
Juan Carlos Gutiérrez;
Luguely Cunillera; and
Lourdes Bascary.

on behalf of the United Nations Latin American Institute for the Prevention of Crime and the Treatment of Offenders:
Carlos Tiffer.

14. During the public hearing, the President pointed out to the participants that they could send additional observations until July 21 of this same year at the latest. On July 12 of this year he informed the intervening parties that the Court had scheduled deliberations on the request in the agenda of its LVI Regular Session, from August 26 to September 6, 2002. Mexico, the Commission, CEJIL and the Fundación Rafael Preciado Hernández, A.C., of Mexico filed their observations within the term granted to this end.

*
* *

15. The Court summarizes as follows the relevant part of the written observations of the Inter-American Institute of Children, the States participating in these proceedings, the Inter-American Commission, and the Non-Governmental Organizations:

The Inter-American Institute of Children: In its August 7, 2001 brief, it stated:

Once the 1989 Convention on the Rights of the Child was adopted, the States of this hemisphere began a process of adapting their legislation in view of the doctrine of comprehensive protection, which considers the child fully as subject of rights, leaving behind the concept that the child is passively the object of protective measures. The latter involves a highly discriminating and non-inclusive jurisdiction, lacking in due process guarantees, and grants the judges broad discretionary powers regarding how to proceed in connection with the general situation of the children. There was thus a transition from a “protective repressive” system to one based on responsibilities and guarantees with respect to children, where special jurisdiction is set within the principle of lawfulness, where due process is respected, and where steps taken are “geared toward redressing the victim and reeducating the juvenile offender, while internment is restricted to those cases in which it is absolutely necessary.”

The American Convention on Human Rights establishes that the rights set forth therein pertain to all human beings and, therefore, their full enjoyment and exercise by children are also guaranteed (Articles 3 and 1(2) of the American Convention). In this regard, the ability to enjoy rights, inherent to the human person and which is a ius cogens rule, must not be confused with the relative or absolute inability of children under 18 to exercise certain rights on their own.

Regarding the specific measures identified by the Inter-American Commission, it stated the following:

- Separation of minors from their parents because the authorities deem that the family cannot provide adequate conditions for their education and support: lack of material resources cannot be the only basis for the judicial or administrative decision to order separation from the family. To act in this way breaches rights such as, among others, legality of proceedings, inviolability of the right to proper defense, and humaneness of the measure. Such measures should be impugned and considered not valid;

- Internment of minors deemed abandoned or at risk, who have not committed any crimes: internment of youths who are in situations of social risk, applying the principles of the doctrine of the “irregular situation” that viewed them as objects of protection rather than subjects of rights, involves applying an undefined sanction, which breaches the principle of lawfulness of punishment, aggravated by the fact that generally this is ordered without defining its duration. It is also contrary to the rules of due process.

- Acceptance of confessions by minors in criminal matters without respecting the right to fair trial: even though most legislation in this continent recognizes the right to fair trial, confessions of minors are generally taken without having followed adequate detainment procedures or without the presence of a legal representative of the child or of one of his next of kin, which should suffice for the procedure to be declared null;

- Administrative or judicial proceedings pertaining to fundamental rights of minors, conducted without respecting the right to fair trial and without considering their opinion or preferences: proceedings conducted in the manner described above violate fundamental guarantees such as the principles of guilt, lawfulness, and humane treatment, as well as procedural guarantees (jurisdictionality, the presence of both parties, inviolability of the right to proper defense, presumption of innocence, impugnation, legality of the proceeding, and public nature of the proceedings).

In view of the practices described above, the Institute determined the need to review the process of adjusting legislation of the States of the hemisphere to the principles of the Convention on the Rights of the Child and the American Convention, as today there are still countries that have not fully harmonized their laws to those principles, pursuant to Article 2 of the American Convention. The Institute concluded that Articles 8, 19 and 25 of the American Convention must constitute limits on States’ discretionary power to issue special measures of protection with respect to children. Therefore, they must “adjust their domestic legislation and practices in accordance with those principles.”

On the other hand, the Institute expressed, in its appendices, that reality shows that especially vulnerable sectors of society are deprived of protection of their human rights, which is contrary to the principle of universality of those same rights.

In this regard, the Institute pointed out that the perception of children as objects rather than subjects of rights considers “children” to be those whose basic needs are satisfied and “minors” to be those who are socially marginalized and cannot satisfy their basic needs. To address the situation of the latter, legislation has been enacted that considers children to be “objects of protection and control,” and special jurisdictions are established, which exclude and discriminate, deny children their status as legal persons, and breach their fundamental guarantees. Such legislation also “judicializes” the psychosocial problems of children and establishes the Juvenile Court which, having broad discretionary powers, has the function of solving problems of this social group, in view of the lack of social protection policies by the State.

The aforementioned jurisdictions disregard the principle of lawfulness, the distinction between the abilities to exercise and to enjoy rights, as well as proportionality of punishment and due process. Likewise, the system does not respect the ages for various types of intervention, it is not inspired by policies for re-socialization or reeducation, and it is conducive to internment of children who are not offenders in an undifferentiated manner with minors who have broken the law. A study by the United Nations Latin American Institute for the Prevention of Crime and the Treatment of Offenders (hereinafter “ILANUD”) showed that the profile of juvenile offenders is in accordance with the following data: male, 4 years behind in terms of schooling, residents of marginal zones, conducting illegal activities to contribute to support their household, disintegrated families, or the father performing a low-income job or unemployed, and the mother working as a maid or as an unskilled worker.

The Convention on the Rights of the Child developed a new concept that establishes a distinction between abandonment and irregular conduct. The former requires administrative policies, while the latter requires jurisdictional decisions.

It also sets forth that children are immune from criminal prosecution, although those between 12 and 18 who break the law are subject to special jurisdiction that can apply sanctions consisting of socio-educational measures. This system of special justice, in addition to the basic features of all jurisdictional bodies, is based on the following principles:

a. responsibility for infractions: the sanctions contained in the new jurisdiction should only be applied to children older than 12 and under 18 who have broken a criminal law –due to immunity of minors under 18 from criminal prosecution- and the measures adopted can be appealed by the children themselves. The State must adopt a rehabilitation policy regarding these persons, so that adolescents who break the law “merit legal intervention” that is different from that foreseen for adults by the criminal code. Specifically, specialized jurisdictions should be established to hear offenses by children who have broken the law. In addition to fulfilling the common features of any jurisdiction (impartiality, independence, respect for the principle of lawfulness), they must safeguard the subjective rights of children, a task that does not fall under the competence of the administrative authorities.

b. decriminalization of the juvenile justice system: since sanctions under this special jurisdiction seek to rehabilitate rather than to repress, internment should be a measure of last resort. Other socio-educational measures should be considered first, such as family counseling, imposing rules of conduct, community service, obligation to redress damage, and supervised freedom with the obligation to attend educational programs. Measures must always be proportional and be based on the best interests of the child and his or her resettlement into the family and community;

c. separation of administrative and jurisdictional functions: a distinction must be made between social protection, which seeks to attain the conditions required for the child to develop his or her personality and fulfill his or her fundamental rights, and juridical protection, as a guarantee function with the aim of deciding on the subjective rights of children;

d. guarantee of rights: due process rights must be respected at three moments: i. at the time of detention, which must be based on a court order, except in cases of in fraganti situations, and it must be carried out by police staff trained for treatment of adolescent offenders, that is, special staff; ii. during the development of the judicial proceedings, both substantive (principles of guilt, of lawfulness, and of humane treatment), and procedural (principles of jurisdictionality, presence of both parties, inviolability of the right to proper defense, presumption of innocence, impugnation, lawfulness of the proceedings and public nature of the proceedings); and iii. during compliance with a re-educational or internment measure. This must be supervised by the competent body. In case of incarceration, the prohibition to intern children in establishments for adults must be respected, and also, in general, the rights of the child to know the regime he or she is subject to, to receive effective legal counsel, to continue his or her educational or professional development, to carry out recreational activities, to know the procedure to file complaints, to be in an appropriate physical and hygienic environment, to receive sufficient medical attention, to be visited by next of kin, to remain in contact with the local community, and to gradually resettle into social normalcy.

e. community participation in policies on re-education and resettlement into family and society: this is an essential element of the new juvenile justice, as measures seek gradual and progressive resettlement of juvenile offenders into society.

Costa Rica: In its written and oral observations, the State of Costa Rica expressed the following:

a. Regarding interpretation of Articles 8, 19 and 25 of the American Convention:

Guarantees set forth in Articles 8 and 25 of the American Convention, in connection with Article 19 of that same instrument, must be interpreted in two ways: one, in a negative sense, because said provisions do limit the good judgment of the States, as these cannot legislate to the detriment of those basic guarantees; and another, positive sense, which involves allowing their adequate exercise, taking into account that the aforementioned Articles do not hinder adoption of specific measures regarding children that expand the guarantees set forth therein.

Rights guaranteed by Articles 8 and 25 of the American Convention must be applied in light of the specialization recognized by the San José Covenant itself regarding childhood and adolescence, to “enhance protection of the rights of children,” as occurs in other special situations such as those reflected in Articles 5(5) and 27 of the Convention. Therefore, they must be “read cross-cutting” –and applying broad interpretive criteria- together with the provisions of the Convention on the Rights of the Child. For this reason, application of said Articles must take into account the principles of the best interests of the child, comprehensive protection, specialized justice, presumption of minority, the principle of injuriousness, confidentiality and privacy, and comprehensive training and resettlement into family and society, as well as specification of the ways and conditions for children to have access to those judicial remedies, taking into account that their ability to act is not complete, “but rather linked to exercise of parental authority, and determined by their emotional maturity and discernment.”

Article 19 of the American Convention obligates the States to develop legal norms to ensure protection measures required by children as such. Therefore, any legal development by the States regarding measures for protection of children must take into account that children are subjects of their own rights, which must be realized within a comprehensive protection concept. These positive measures “do not enshrine a discretionary power of the State” regarding this population group.

The rights recognized by Articles 8 and 25 of the Convention have been taken into account and developed in Article 40 of the Convention on the Rights of the Child. Furthermore, it added that Articles 3, 9, 12(2), 16, 19, 20, 25 and 37 of that same international instrument are significant for this request for an Advisory Opinion.

The Convention on the Rights of the Child recognizes the special protection that the State must provide to children, especially regarding administration of justice, and it recognizes that it is a high priority to solve conflicts in which children are involved, insofar as possible, without resorting to criminal proceedings; if it is necessary to resort to the latter, they must have the rights that adults have, as well as those that are specific to children. Said Convention also refers to other international instruments such as the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules), the United Nations Guidelines for the Prevention of Juvenile Delinquency (Riyadh Guidelines) and the United Nations Rules for the Protection of Juveniles Deprived of their Liberty.

In Costa Rica, specifically, these international norms have been included at the administrative, judiciary, and penitentiary levels. There is also a Childhood and Adolescence Code (1998), which establishes a special process for protection in cases of action or omission by society or the State, by the parents or by those exercising custody, or of actions or omissions committed by the children to their own detriment. This process is entrusted to the institution called Patronato Nacional de la Infancia, as the first instance, and its decisions may be appealed through the judiciary. On the other hand, there is also the Juvenile Criminal Justice Law (1996), which establishes rigorous guarantees and measures of protection that are diverse in their nature and content, applicable to children who break the criminal law. Observance of said guarantees in the judiciary would require the “establishment of Juvenile Criminal Courts, of the Juvenile Criminal High Court, of Sentence Execution Courts, Juvenile Criminal Defense, a specialized Prosecutors’ Office, [and] a Juvenile Judicial Police.”

In connection with the concrete measures identified by the Commission, Costa Rica stated that said “situations cannot [be understood] as valid ‘measures of protection’ under the terms of Article 19 of the American Convention,” as they respond to situations that existed in Costa Rica before entry into force of the current legislation, which is in accordance with the Convention on the Rights of the Child.

- Separation of youths from their parents because the authorities deem that their family cannot provide conditions for their education or support: this “would breach Article 19 of the American Convention, as well as Articles 8 and 25 [of that] same legal instrument and Articles 9, 12(2) and 40 of the Convention on the Rights of the Child.” In Costa Rica there is a measure that can be applied, pursuant to the Childhood and Adolescence Code, respecting due process, and that is a provisional protection measure in substitute families, or temporary shelter in public or private institutions.

- Internment of minors in guardianship institutions because they are deemed abandoned or at risk or in a situation of illegality, without their having committed a crime: this measure reflects the doctrine that perceives children as objects rather subjects of rights, and therefore would breach Articles 7, 8, 19 and 25 of the American Convention, as well as Articles 25, 37 and 40 of the Convention on the Rights of the Child. In Costa Rica, when a measure such as the one described is involved, there is the possibility of an appeal through the judiciary, under the parameters of due process and hearing the opinion of the child.

- Acceptance of confessions of minors in criminal matters without due guarantees: this would breach Articles 19, 8(2) subparagraph g) and 8(3) of the American Convention, in addition to the guarantee set forth in Article 40, subparagraph 2.b). Under Costa Rican legislation, the child has the right to abstain from rendering testimony.

- Administrative proceedings pertaining to the fundamental rights of the child, conducted without legal representation of the minor being guaranteed: this hypothesis would breach Articles 8, 19 and 25 of the San José Covenant, as well as Articles 12, subparagraph 2) and 40 of the Convention on the Rights of the Child. In Costa Rica, legislation has been adapted to the aforementioned international instruments.

The State concluded that the concept of children being “incomplete beings who must be the object of protection” has been left behind, from a technical standpoint; Articles 8 and 25 of the American Convention do not constitute limits to the activity of the State “insofar [...] as they do not hinder improvement of the standard of protection and guarantee by specifying these provisions with respect to children.” Thus, “minors because they are minors can and must enjoy greater and special guarantees beyond those of adults, but in no case lesser guarantees nor a weakening of those guarantees under the pretext of a misconceived protection.”

b. Regarding the Convention on the Rights of the Child:

The existence of a universal principle of protection of children has been recognized internationally, in view of the fact that they are in a position of “disadvantage and greater vulnerability” vis-à-vis other sectors of the population, and because they have specific needs. The Declaration on the Rights of the Child, adopted by the UN General Assembly in 1959, made a statement along these lines. However, it was not until 1989, with the Convention on the Rights of the Child, that there was “a true qualitative transformation of interpretation, understanding of and attention to minors, and therefore of their social and juridical condition.” Said Convention includes a number of principles and provisions pertaining to the protection of children, and it is a paradigm that should provide guidance regarding this matter. Specifically, it dealt with the need to address the best interests of the child, the rule that children should not be separated from their parents against their will, and the possibility that the child be heard in all judicial or administrative proceedings that affect him or her; children who break the law must be treated “in such a manner as to foster their sense of dignity and the importance of promoting a constructive function in society.”

c. Doctrine of comprehensive protection:

With the Convention on the Rights of the Child, the former doctrine that perceived children as objects rather than subjects of rights was left behind, as it considered the children incapable of assuming responsibility for their actions. Therefore, they were passive objects of the “protective” or repressive intervention of the State. That doctrine also established a distinction between “children”, whose basic needs were covered, and “minors”, who were members of the infantile population whose basic needs were not being satisfied, and who were therefore in an “irregular situation.” For the latter group, the system tended to judicialize or institutionalize any problems pertaining to their status as minors, and the “wardship judge” was prominent as a way to compensate for what the child lacked.

This Convention, together with the other international instruments, reflected the doctrine of comprehensive protection, which recognizes that children are legal persons and granted them a major role in building their own destiny. With respect to criminal matters, specifically, it involved a change from protective jurisdiction to one that combines punitive measures and guarantees, where, among other measures, the rights and guarantees of children are fully recognized; they are considered responsible for their criminal acts; intervention of criminal justice is limited to the indispensable minimum; the range of sanctions is expanded, based on educational principles; and punishment through incarceration is minimized.

d. Development of childhood and adolescence Law:

The Convention on the Rights of the Child, among other international instruments, and the doctrine of comprehensive protection brought with them the development of childhood Law as a new juridical branch, based on three fundamental pillars: the best interests of the child, understood as the premise for interpretation, integration and application of laws pertaining to childhood and adolescence, and therefore a limitation to the discretion of authorities in adopting decisions regarding children; minors as legal persons, thus recognizing both their basic human rights and those that pertain to their status as children; and the exercise of fundamental rights and its ties to parental authority: since the only purpose of parental authority is to provide protection and indispensable care of the child to guarantee his or her complete development, it is a responsibility and a right of the parents, but also a fundamental right of the children to be protected and guided until they attain full autonomy. Therefore, exercise of authority must diminish as the child grows older.

Costa Rica concluded that “the provisions of Articles 8 and 25 of the American Convention on Human Rights are insufficient, in and of themselves, to ensure respect for minors of the guarantees and rights recognized by this instrument for all persons,” and therefore a series of principles and guarantees specifically pertaining to childhood must be taken into account. Thus, a fundamental nucleus regarding the rights of children takes shape that includes a principle of positive discrimination with the aim of attaining equity and compensating, “by means of recognition of greater and more specific guarantees, these situations of clear inequality that exist in reality.” For this, it argued, there is a need for all States to ratify the Convention on the Rights of the Child and to harmonize their legislation with respect to the principles set forth therein.

Mexico: In its written and oral comments, Mexico stated:

Children must not be considered “objects of segregative protection”, but rather full legal persons who must receive comprehensive protection, and enjoy all the rights of adult persons, in addition to “a set of specific rights granted to them due to the particular property of children being in a process of development.” Not only must their rights be protected, but it is also necessary to adopt special measures of protection, pursuant to Article 19 of the American Convention and to a set of international instruments pertaining to childhood.

The two major principles that govern human rights are non-discrimination and equality before the law, and they must be recognized for all persons, “with no distinction as to whether the beneficiaries of these [rights is a child, a youth or an adult].” Therefore, the measures proposed by the Inter-American Commission in its request “would be related to issues of efficacy of the provisions of the Convention, rather than of compatibility of their respective scopes.”

- Separation of youths from their parents because the authorities deem that the family cannot provide conditions for their education or support: the term “youths” is rejected due to its ambiguity, and instead the term “minors” is preferred, as it is refers more precisely to that sector of the population. The State also deems that a distinction should be made between “separation of the minor due to lack of conditions of the next of kin to provide for his or her education, and secondly, separation of the minor due to lack of conditions for his or her support. In this regard, undoubtedly in both cases the body with authority to reach said decision must always respect the rules of due legal process.” Pursuant to Article 9 of the Convention on the Rights of the Child, separation of the child from his or her parents must be exceptional, limited to cases of mistreatment or abandonment, and decided to protect the best interests of the child.

In this regard, Articles 8 and 25 of the American Convention, “rather than constituting a limit on States’ good judgment or discretion to issue special measures of protection pursuant to Article 19 of that Convention, are the necessary channel for such actions” to be considered in accordance with the obligations of the State derived from the Convention itself.

- Internment of minors in guardianship institutions because they are deemed to be abandoned or at risk or in a situation of illegality, even though they have not committed any crime: in all three hypotheses, abandonment, risk or illegality, the States have the responsibility of implementing social protection programs for the children. Said programs must include control bodies to oversee application and legality of the former, as well as adoption of appropriate measures to prevent or correct the situations in which children find themselves, as described by the Commission.

The State must adopt measures for protection and care of abandoned children, as they are a very vulnerable social sector, subject to even greater protection than the population at risk, pursuant to Article 19 of the American Convention, Articles 3(2) and 20 of the Convention on the Rights of the Child and Article 9 of the Riyadh Guidelines. Internment of children in guardianship institutions must be provisional and be considered “a measure that will help the child to adequately channel his or her life project.” States must ensure that internment of children in guardianship or wardship institutions is preventive or provisional, and that its relevance and duration must be duly supported by specialized studies and be reviewed periodically by administrative or judicial authorities. In Mexico, abandonment of children is a crime.

Children who are at risk, or “street children” as they are called, must also be covered by preventive and protective measures. Pursuant to the terms set forth by this Court in the Villagrán Morales et al. Case, States must adopt legislative as well as institutional measures to protect and guarantee the rights of children who are at risk. These measures may include, as in the case of children who have been abandoned, internment in guardianship or wardship institutions, insofar as these fulfill the objective of “ensuring full and harmonious development of [the] personality [of the child].” These measures should be taken with due respect for relevant guarantees, having previously taken into account the viewpoint of the child, his or her age and maturity, and such measures must always be subject to appeal.

The State has the obligation to develop crime prevention programs. Internment of children who have not broken the law and without respecting due process would be a violation of Articles 7 and 8 of the American Convention, of Article 40 of the Convention on the Rights of the Child, of the Mexican Constitution, and of the fundamental principle of criminal Law, nulla poena sine lege.

In the hypothesis of incarceration of children, detention must be conducted in accordance with the law, during the briefest appropriate period and respecting the principles of exceptionality, temporal determination and last resort. Also, detainment of children “requires much more specific conditions in which it is impossible to solve the situation through any other measure.”

- Confessions made by minors in criminal matters without due process: the State pointed out that all children should enjoy minimum guarantees when facing judicial proceedings against them, including: presumption of innocence, obligation of the authorities to advise the representatives of the child of any actions taken for or against him or her, the right to receive legal assistance and the right to tender evidence. Therefore, any statement in criminal courts that is obtained without minimum procedural guarantees must not be given probatory value.

- Administrative proceedings pertaining to fundamental rights, conducted without legal representation of the minor being guaranteed: children have the right to legal assistance in any proceedings brought against them. Development of administrative processes or proceedings against them without that guarantee breaches rights protected by Articles 8 and 25 of the American Convention.

- Establishment of the fundamental rights of minors in administrative or judicial proceedings without hearing the minor and taking into account his or her opinion: pursuant to the Convention on the Rights of the Child, the State must ensure conditions for children to develop their own judgment and express an opinion on matters affecting them. However, freedom to express an opinion is not unlimited; the authorities must assess it according to the possibility the child has of developing his or her own judgment, given his or her age and maturity, pursuant to Article 12 of the Convention on the Rights of the Child. Likewise, the right to be heard is a fundamental guarantee that must be respected in all administrative or judicial proceedings, as has been recognized by the inter-American system for the protection of human rights and by the Mexican legal system, both regarding legislation and case law.

Given the lack of an inter-American instrument that specifically regulates the rights of children, the Convention on the Rights of the Child is, as this Court has pointed out, part of the corpus iuris “that must serve the purpose of setting the content and scope of the general provision that was defined, precisely in the aforementioned Article 19.”

Finally, the State pointed out that the child is a subject of rights, even before his or her birth, even though the ability to exercise them is acquired upon becoming an adult, in other words “whether a minor is a worker, a student, disabled, or an offender, he or she has the right to protection due to his or her special condition as a minor.”

Inter-American Commission In its written and oral comments, the Inter-American
on Human Rights: Commission stated:

Adoption of the Convention on the Rights of the Child was “the culmination of a process during which the model or doctrine of comprehensive protection of the rights of the child, as it is called, was constructed.” This new system has the following characteristics:

i. it recognizes children as subjects of rights and the need to provide special measures of protection for them, which must impede illegitimate interventions of the State that violate their rights, and provide positive benefits that allow them to effectively enjoy their rights;

ii. it arose from “the critical aspects” of the “irregular situation” model that perceived children as objects rather than subjects of rights, predominant in our region for over eighty years;

iii. it left behind the “judicialization” of exclusively social matters as well as internment of children or youths whose economic, social and cultural rights are breached;

iv. it avoids “euphemisms justified by the argument of protection,” which hinder the use of due process mechanisms for protection of fundamental rights;

v. it provides differentiated treatment to children whose rights have been breached and to those who are charged with committing a crime;

vi. it adopts protection measures that promote the rights of the child and in no way must breach them, taking into account consent by the child and his or her next of kin;

vii. it develops universal as well as “focused and decentralized” public policies, which tend to make the rights of children effective; and
viii. it establishes a special responsibility system for adolescents, which respects all material and procedural guarantees.

With this new model, “the States undertake to transform their relations with children,” leaving behind the concept of the child as one who is “incapable” and attaining respect for all his or her rights, as well as recognition of additional protection. Protection of the family is also emphasized as it is “the pre-eminent place to first make the rights of children and adolescents effective, where their opinions should be given a high priority in household decision-making.” This protection of the family is based on the following principles:

a. Importance of the family as the “entity where children are raised and [...] their primary nucleus for socialization;”
b. The right of the child to have a family and to live with it, so as to avoid estrangement from his or her biological parents or extended family; if that were not possible, other “modes of family placement” should be sought or, finally, “community shelter entities”; and
c. “De-judicialization” of matters pertaining to socio-economic issues and adoption of social aid programs for the family group, taking into account that mere lack of resources by the State does not justify the lack of such policies.

Even though the Convention on the Rights of the Child is one of the international instruments that has the greatest number of ratifications, not all countries of this continent have harmonized their domestic legislation with the principles set forth in that Convention, and those that have done so face difficulties applying them.

The Convention on the Rights of the Child establishes two areas of protection: a) the human rights of children and adolescents in general, and b) the situation of children who have committed a crime. In the latter area, children should not only have the same guarantees as adults, but also special protection.

The State, including the Judiciary, is under the obligation to apply international treaties. In this regard, the Commission recognizes that the Convention on the Rights of the Child, together with other international instruments, is an international corpus iuris for protection of children, which can serve as an “interpretive guide”, in light of Article 29 of the American Convention, to analyze the content of Articles 8 and 25 and their relation to Article 19, of that same Convention.

Furthermore, those instruments –including the “Beijing Rules,” the “Tokyo Rules” and the “Riyadh Guidelines”- develop comprehensive protection of children and adolescents. This involves considering the child fully as a subject of rights and recognizing the guarantees that he or she has in any proceedings that affect those rights. In the inter-American system, 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,” Articles 8 and 25 of the American Convention. Said guarantees must be observed, especially, when the proceedings involve the possibility of applying a measure that deprives the child of liberty (whether an “internment measure” or a “protective measure”). When applying measures that deprive the child of liberty, two principles must be taken into account: a) deprivation of liberty is the ultima ratio , and therefore other types of measures must be preferred, without resorting to the judiciary, whenever this is adequate; and b) the best interests of the child must always be taken into account, and this involves recognizing that he or she is the subject of rights. This recognition requires that, in the case of children, special measures be considered that involve “greater rights than [those recognized for] all other persons.”

Articles 8 and 25 of the American Convention, in combination with Article 40 of the Convention on the Rights of the Child, include guarantees that must be observed in any proceedings where the rights of a child are established, including:

a. Competent, independent and impartial court previously established by law: “Every person has the right to be tried by a competent, independent and impartial tribunal, previously established by law.” In this regard, Article 5(5) of the American Convention states the need for proceedings regarding minors to be conducted by specialized tribunals.

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.

b. Presumption of innocence: a person charged with a crime must not be treated as if he or she were guilty until his or her responsibility has effectively been established. This guarantee applies to children, whether chargeable or not.

With respect to children, Latin American legislation tends to consider that the criminal law system is based on the situation of the perpetrator rather than on the crime committed, which breaches presumption of innocence.

Before the entry into force of the Convention on the Rights of the Child, judges played a “protectionist” role which gave them the authority, when the child was at risk or in a vulnerable situation, to breach his or her 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, thanks to adoption of the Convention on the Rights of the Child, judges are now under 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.” Clearly, due process guarantees cannot be set aside for the best interests of the child. Therefore, when a child charged of a crime is brought before the Judge, and he or she is in a special state of vulnerability, there must be an “intervention by the mechanisms created by the State to address that particular situation,” and the child must be treated as an innocent person, whatever his or her personal situation.

c. Right to legal defense: this includes several rights: to have the time and means to prepare his or her defense, to have an interpreter or translator, to be heard, to be informed of the charges and to examine and offer witnesses. This is also set forth in Article 40 of the Convention on the Rights of the Child.

The principle of presence of both parties underlies this guarantee, and it leaves behind the idea that a child needs no defense because the Judge undertakes defense of his or her interests.

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. This is a key element of due process for the child, for it to be “understood as an opportunity for dialogue, where the child’s voice is taken into account, so as to consider his or her opinion regarding the problem he or she is involved in.”

d. Right to appeal (Articles 8(2)h of the American Convention and 40(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.

e. Non bis in idem: (Article 8(4) of the American Convention): the guarantee that a child who has been tried for certain facts cannot be tried again for those same facts, is set forth in Article 8(4) of the American Convention. There is no similar provision in the Convention on the Rights of the Child.

f. Public nature of the proceedings (Article 8(5) of the American Convention): this guarantee, linked to the democratic system of government, must take into account the privacy of the child, without diminishing the right of the parties to defense nor the transparency of judicial actions, to “avoid absolute secrecy of what occurs during the proceedings, especially with respect to the parties.” There is no similar provision in the Convention on the Rights of the Child.

Due process guarantees, protected by Article 8 of the American Convention, have a double value: an intrinsic one, by means of which the person is considered a subject in the development of this dialog; and an instrumental one, as a means to attain a fair solution. In this regard, 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.”

The right to effective remedy, set forth in Article 25 of the American Convention, involves not only the existence of a procedural instrument that protects the rights breached, but also the duty of the authorities to establish the grounds for a decision on the claim and the possibility of judicial review of the measure adopted.

The Commission concluded that the bodies of the inter-American system for protection of human rights must resort to the Convention on the Rights of the Child to interpret all provisions of the American Convention, in matters that involve children, and specifically with respect to interpretation and application of Article 19 of the American Convention. Application of the latter provision must also be “preceded and accompanied” by respect for the guarantees set forth in Articles 8 and 25 of the American Convention. Finally, the Commission stressed the importance of “States, and especially judges, complying with the obligation to apply international treaties, adapting their legislation, or issuing decisions that comply with the standards set forth in Human Rights treaties.”

Instituto Universitario de
Derechos Humanos, A.C., of Mexico,
and other organizations in the field.

In its written and oral comments, it stated that:

The principles of non-discrimination, best interests of the child and equality are fundamental in all activities pertaining to children and in the respective legislation. Children’s opinions should be taken into account in matters that concern them. Legal systems must establish childhood jurisdictions that favor prevention, as well as promote their rehabilitation and social resettlement, avoiding criminalization and deprivation of freedom insofar as possible. At the hearing, it argued that the various spheres of prevention should be taken into account: primary, in the family; secondary, in society; and tertiary, when the State must intervene by adopting a given measure.

- Separation of the youths from their parents because the authorities deem that the family cannot provide conditions for their education or support: the term “youth” should be rejected, because it includes persons older than as well as under 18. The term “minor” is juridical, and it takes into account assistance and protection that must be given to persons who, due to their age, are not capable of exercising their rights.

Separation of children from their parents must be decided following due legal process, “always favoring the best interests of the minor, which may be impaired by lack of conditions for their due comprehensive development.” For this reason, in its role or promoting and protecting the rights of the child, the State can only decide such a separation in face of circumstances that place the child at risk of suffering violence, mistreatment, sexual exploitation and abuse, among other dangers.

- Internment of minors in guardianship institutions because they are deemed abandoned or at risk or in a situation of illegality, without their having committed a crime, but rather due to personal or circumstantial conditions of the minor: the State must adopt measures of protection, by means of legitimate intervention procedures and with due enforcement of the law, when children are in a real situation of abandonment by family or society, which translates into risk or into abridgement of the best interests of children. One such measure is internment of children in guardianship institutions that pursue the objective of ensuring their development and exercise of their rights. Being at risk and in a situation of illegality are not synonymous, as they seem to be in the proposed situation.

- Confessions made by minors in criminal matters without due process: children’s confessions, meaning self-incriminating statements, must always be made with due guarantees and full respect for their rights. It is necessary to establish a special procedure for child justice, which does not necessarily entail the development of criminal proceedings.

- Administrative procedures pertaining to the fundamental rights of the minor, without due guarantees of legal representation of the minor: a distinction should be made between administrative procedures to deal with minors who are offenders and other proceedures pertaining to behaviors that are not characterized as offenses in criminal legislation. In the latter cases, absence of defense counsel does not connote violation of those rights.

- Establishment, in administrative or judicial proceedings, of fundamental rights of the minor without having heard him or her nor taken into account his or her opinion: a distinction should be made between the possibility of the child freely expressing his or her opinion, personally or through a representative, and the right pursuant to Article 12 of the Convention on the Rights of the Child. This involves “the need to analyze in depth the manner in which that right should be adopted, as the minor cannot express his or her opinion in an unlimited manner, since the specific conditions of each minor must be taken into account, in terms of his or her age and maturity.”

Federación Coordinadora de ONG’s que
trabajan con la Niñez y la Adolescencia-
CODENI, of Nicaragua:
In its October 16, 2001 brief, it stated that:

In Nicaragua, enactment of the Childhood and Adolescence Code, in 1998, has generated structural changes in treatment of adolescents who have broken the law. Nevertheless, these changes have not been substantial, due to lack of allocation of a specific budget for comprehensive application of the code.

In connection with this sector of the population, it is convenient to use the terminology “children and adolescents,” to highlight their status as social subjects and as legal persons, a product of their juridical personality, and to leave behind the “irregular situation” policy that considered them objects rather than subjects of rights and that uses the term “minors” in a derogatory manner.

Immunity of children from prosecution should allow them to be identified and to provide treatment that is different from that for an alleged offender, since the “act committed [answers to] a particular situation and not necessarily [to] a premeditated or learned action as argued by the “irregular situation” doctrine that considers the child an object rather than a subject of rights.”

The law must consider, when establishing the causes of a criminal act, the “biopsychosocial” study of the individual implemented in Nicaragua which shows that “almost 100% [of...] the criminal acts derive from circumstances outside their control or from specific situations of the [s]ystem itself,” since the children who are inclined or prone to fall into situations of risk or illegality are the poor, the sons and daughters of prostitutes and criminals, among others.

There are principles that relate to due process, such as culpability, humane treatment, jurisdictionality, presence of both parties and inviolability of defense, that must be applied to children:

a) Principle of Culpability: publicity generated from the moment the crime was committed, not providing attention to the perpetrator and not providing specialized treatment by experts in the matter, causes “anticipatory culpability of children”. The State is also under the obligation to have experts in childhood and adolescence in the Judiciary, the Public Attorneys’ Office and the Legal Aid Program.

b) Principle of Humane treatment: the typology of crimes applied to adolescents must be different from that set forth in regular legislation; corrective measures must seek re-socialization of the perpetrator, rather than mere incarceration, as “it has been proven that said measure does not cause positive effects.”

The law must also clearly define the conduct and consider the judicial proceedings as a means for “special protection” rather than an inquiry.

c) Principle of Jurisdictionality: the law must differentiate the sphere and role of each actor responsible. It is necessary to implement socio-educational measures that enable re-socialization of the child. The administrative authorities will oversee compliance with said measures.

d) Principle of the presence of both parties: the right to be heard relates to recognition of juridical personality, “insofar as both are not observed from the same direction, it will be difficult for an adult, inexperienced person to establish practical differences in the terminology.”

e) Principle of inviolability of defense: Defense of children is not generally entrusted to specialists in childhood and adolescence. This does not contribute to respect for the rights of children. The role of the State and the family is fundamental, not as spectators nor as those who punish the individual, but “as alternatives to overcome the problem.” The State is under the obligation to have psychosocial specialists to provide attention to the children and to correlate this action with the family.

Fundación Rafael Preciado
Hernández, A.C, de Mexico: In its oral and written comments:

The starting point for development of this subject is the 1989 United Nations Convention on the Rights of the Child, as the international instrument that initiated the doctrine of comprehensive protection that defines children as fully legal persons rather than as objects of protection. The requested interpretation of Articles 8, 19 and 25 of the American Convention on Human Rights should fully include the model presented and adopted in the Convention on the Rights of the Child.

Certain relevant guidelines for the proposed interpretation are highlighted:

a. Prohibition of separating children and adolescents from their family or community milieu due to purely material issues.

The current model for protection of children is based on joint responsibility of the State and the parents (or those responsible for the children). In accordance with the principle of solidarity, the former must not place children under its guardianship, denying them the exercise of their rights, especially the right to liberty, due to lack of minimal conditions for support or as a consequence of their special personal, social or cultural situation, and the parents must provide at least adequate living conditions. In other words, both the State and the family are jointly responsible for providing and ensuring the child minimum conditions for subsistence. This means that legislation developed in accordance with the principle of protection and which criminalizes poverty, stripping the management of legal conflicts of the most disadvantaged sectors of the population from the right to fair trial, must be reconsidered so as to adjust it to the current model and reality.

b. Separation of the administrative and jurisdictional spheres of action.

Jurisdictional matters pertaining to the rights of children and adolescents, whether under criminal, civil or family law, in light of the Convention, should be conducted by judges with full and specific capacity to settle juridical conflicts in the technical, impartial and independent manner inherent to their position, and limited by individual guarantees.

The Convention on the Rights of the Child, which is the main international instrument that has replaced the former protective laws, establishes the complementary nature of special protection mechanisms for children, which is not autonomous but rather based on general juridical protection (Article 41, Convention on the Rights of the Child) for which it also distinguishes clearly between assistential and penal matters.

From this standpoint, it states that all proceedings regarding children must respect the following principles:

1. Jurisdictionality: this involves respect for certain minimum characteristics of jurisdiction, such as intervention of the competent court previously established by law, as well as independence and impartiality of the body responsible for reaching the relevant decision.

2. Inviolability of defense: this requires the presence of the technical defense counsel in decisions affecting the child and in any proceedings in which he or she intervenes.

3. Lawfulness of the proceedings: all proceedings that involve the presence of a child or decisions that affect him or her must be previously determined by law, to avoid application of discretionary criteria and to ensure fair and equitable development of the individuals, thus ensuring that decisions are not based on the personal conditions of the child.

4. Presence of both parties: this involves the possibility of knowing the facts and the evidence submitted in the proceedings, as well as to face them with the respective legal assistance.

5. Impugnation: this presupposes the existence of a higher body before which the decision adopted can be appealed.

6. Public nature of the proceedings: this has two expressions; on the one hand, the possibility of having access to all procedural items to ensure adequate defense; and on the other hand, protection of the identity of the children to avoid their stigmatization.

c. Children as fully legal persons.

Article 3 of the American Convention on Human Rights recognizes the juridical personality of all persons and this, of course, includes children. Nevertheless, the former protective model only saw children as objects of protection and not as legal persons. Therefore, they did not enjoy recognition of their rights. Currently, the preamble of the Convention on the Rights of the Child and the principles of the United Nations Charter clearly state that children are legal persons, under conditions of equality and based on the inherent dignity of all human beings.

According to the comprehensive protection model that has been adopted, children have the right to participate in proceedings where decisions are reached that affect them, not only within the household but also regarding actions taking place before the competent authorities.

In light of these criteria, it is deemed relevant to urge the member countries of the OAS to adopt, in their domestic legislation, the guidelines set forth by international law regarding protection and wardship of children, so as to recognize them as persons entitled to rights and having obligations. This includes the right to due process.

In the case of Mexico, the protective model was clearly adopted. Legislation considers children to be immune from prosecution and legally disqualified, and they are thus treated in a similar manner to mentally disabled persons, denying them access to due process followed in jurisdictional decisions regarding adults.

According to Mexican legislation, children are subject to a non-jurisdictional process that takes place without the judicial guarantee of due process. That process involves a “treatment” consisting of deprivation of liberty, decided with no guarantees whatsoever, and which rather than contributing to protection of children brings with it a series of systematic violations of the rights and guarantees of children and adolescents.

Mexican legislation must adopt the protection model recognized by international instruments.

United Nations Latin American Institute for the Prevention of Crime and the Treatment of Offenders (ILANUD):

In its written and oral arguments, ILANUD made the following remarks:

With respect to the first question raised by the Commission, regarding separation of youths from their families for reasons of education and support, the Institute determined that Articles 8 and 25 of the Convention constitute limits on States’ good judgment and discretion to issue measures of protection pursuant to the provisions of Article 19 of that same instrument. “Separation of youths from their parents and/or families and without due process, because it is deemed that the families cannot offer conditions to provide them with education and support, breaches Article 2 of the Convention on the Rights of the Child, as well as principles established in International Law and Human Rights; the principle of equality and the right to non-discrimination.”

With respect to the measure regarding suppression of liberty of minors, because it is deemed that they have been abandoned or are at risk or prone to illegal situations, the Institute stated “that the guarantees set forth in Articles 8 and 25 of the American Convention [...] constitute a limitation of the decisions of States Party on such special measures. The practice of deciding suppression of liberty taking into account special circumstances of the minors breaches the Right to Humane Treatment (Article 5) and the Right to Personal Liberty (Article7), both of the American Convention [...], as well as principles of International Law and Human Rights, such as the pro libertatis principle, and the pro homine principle. It would also clearly breach the principle of equality and non-discrimination.”

With respect to admissions of guilt by minors in criminal matters without due process guarantees, the Institute stated “that the rights to fair trial and to judicial protection set forth in Articles 8 and 25 of the Convention, constitute limits and minimum rights that the States Parties must respect when they receive admissions of guilt or statements from any person, and especially from minors. To accept these special measures in a discretionary and unrestricted manner constitutes a violation of the principle of specialized justice for minors, set forth in Article 5(5) of the American Convention,” as well as of due process.

Regarding the administrative proceedings where fundamental rights are established without the right to defense, the Institute pointed out that “this practice violates the right to fair trial set forth in Articles 8 and 25 of the American Convention, for which reason they do constitute limitations of the capacity and discretion of the States Party.” It also deemed that said practices breach the right to legal representation set forth in Article 40, subparagraph 2, item ii of the Convention on the Rights of the Child. This right involves respect for all guarantees encompassed by the right to fair trial, such as the rights to be informed of the charges, to presumption of innocence, and to appeal, among others.

Finally, with respect to the question raised by the Inter-American Commission regarding establishment of rights and liberties in administrative or judicial proceedings without the right to be heard personally, as well as non-consideration of the opinion of the minor,

ii. the Institute argued that this would violate the provisions of Articles 8 and 25 of the American Convention, as these norms constitute limits to the good judgment and discretion of the States Parties “as minimum rights, which must be respected for all citizens and especially for children and adolescents.” Furthermore, this situation would breach the provisions of Article 40 of the Convention on the Rights of the Child, “as well as internationally accepted and recognized legal principles such as: the principle of the best interests of the child, recognition of minors as legal persons, the principle of comprehensive protection, the principle of specialized jurisdiction, the principle of comprehensive training and resettlement into the family and society.”

Since the Convention on the Rights of the Child was adopted, most Latin American legal systems began to change from the protective theory, usually applied in judiciary or administrative proceedings, depending on each State, to that of comprehensive protection set forth in the aforementioned international instrument. To this end, a legislative technique was used which could be called “[a]ll-encompassing codes, called childhood codes that regulate all types of situations both of omission of rights and of violations of criminal law.”

Center for Justice and International Law:
In its brief and in its oral comments the Center made the following statements:

Convention on the Rights of the Child:

The main normative reaction to the system of the “irregular situation” was the adoption of the Convention on the Rights of the Child in 1989, which involved a change of paradigm to recognize minors as subjects of rights and to establish the principle of the “best interests of the child” as a “form for resolution of conflicts among rights, and/or as a guide to evaluate laws, practices and policies pertaining to children,” as well as principles such as respect for the opinion of the child, the principle of survival and development, and the principle of non-discrimination. The Convention on the Rights of the Child also legally codified the “doctrine of comprehensive protection,” which delimited the role of the Judge to that of solving juridical conflicts, strengthened procedural guarantees, and determined obligations of the State to establish “comprehensive policies that respect the rights and guarantees protected” by the aforementioned Convention.

This impetus given to the doctrine of comprehensive protection has led to a number of modifications to legislation within the region; nevertheless, “practices in administration of justice and State policies have not yet adapted to the precepts of the Convention [on the Rights of the Child].” Likewise, in some countries there is a “less and less inclusive situation (socially and politically)” for minors and grave or systematic violations of human rights demonstrate non-fulfillment of the States’ international obligations.

Current legislative situation:

Some countries in the region have developed new legislation to provide special protection to minors. However, lack of legislative reform directed toward “strengthening basic social policies” constitutes an obstacle to effective enjoyment of the rights recognized in the Convention on the Rights of the Child. Furthermore, there are countries that have not begun the process of adjusting their legislation, or where this process must be enhanced to “attain an effective adjustment of the law to precepts of the” Convention on the Rights of the Child, especially with respect to guarantees.

Furthermore, even in those countries where new legislation has been adopted, there are a number of deficiencies that must be corrected, such as creation of the necessary facilities to apply measures that involve internment under decent conditions, and moving legislation away from the old system based on the doctrine of the “irregular situation” that perceived children as objects rather than subjects of rights. Thus, the comprehensive protection doctrine has faced many obstacles of various types, such as:

- Economic obstacles: lack of budgetary allocations to adequately protect the rights of children;
- Political obstacles: social spending is not a priority for governments, and when it occurs its “execution is incoherent for lack of adequate planning;”
- Ideological obstacles: there is a need to promote greater sensitivity and commitment to the new requirements of children, especially in face of a “widespread authoritarian and repressive culture;”
- Institutional obstacles: there is a lack of training for juridical and social operators in this field, as they “do not understand the scope of their competence nor do they manage to fully separate this function from that of sanctioning” the juvenile offender.
- Obstacles regarding information: it is necessary to provide training to attorneys, due to their “special participation in terms of control and demands” vis-à-vis State institutions in charge of implementing protection measures;
- Legislative obstacles: progress in this field has been slow and formal in nature; and
- Obstacles in terms of training: despite attainments, there is not yet “a critical mass of professionals who are able to generate opinion” on this matter.

Current problems of children:

Millions of children in the region live in poverty and marginality, “the victims of an immense and unforgivable oblivion” and “the products of major structural flaws,” related to domestic and international policies. The following problems stand out:

a. Children in situations of armed conflict:

This type of conflicts have been associated with violations of human rights and of International Humanitarian Law to the detriment of children and adolescents in the region, with consequences for them that are even more intense and traumatic than for adults. Those conflicts also generate greater poverty as more resources are channeled toward those ends; furthermore, malnutrition increases due to low production of food, and obstacles hindering access to services increase too. In addition, children often face displacement and separation from their families, which deprives them of a safe environment.

In this regard, the existence of the Optional Protocol to the Convention on the Rights of the Child is important, as it refers to participation of children in armed conflicts as a means to complement the minimum obligations of the States, set forth in the Convention on the Rights of the Child with respect to children in armed conflicts such as, among other things, the minimum age for recruitment is raised from 15 to 18.

Likewise, even though many States recognize the existence of soldier children recruited by the armed forces and undertake to issue orders to avoid new recruitment, generally there are no provisions to facilitate demobilization of children currently recruited, which impedes their access to education, to family re-unification, or to food and shelter necessary for their resettlement in society. Furthermore, in connection with internal displacement of minors, “not giving the situation a legal framework, in the complete manner it requires, leaves children unprotected due to the lack of a specific legal remedy to address that situation,” to the detriment of the “right to not be displaced as a corollary of freedom of Movement and Residence.”

b. Refuge and Nationality:

To define the scope of the measures of protection set forth in Article 19 of the American Convention regarding refugee children or asylum-seeking children, it is essential to take into account the provisions and principles set forth in the Convention on the Rights of the Child and the 1951 Convention relating to the Status of Refugees. Therefore, protection measures must be considered in the course of determination of refugee status and in treatment of refugee and asylum-seeking children, especially when they have been separated from their parents or guardians.

International human rights obligations require that the rights set forth in the various treaties be ensured for all people, whatever their age. Therefore, age-based discrimination can only be accepted in certain circumstances, pursuant to the case law of the Court itself and when measures adopted are proportional. Furthermore, in the case of children, the States must adopt special measures to protect them, based on the principle of the best interests of the child.

The right to fair trial set forth in Article 8 of the American Convention, which covers all administrative or judicial proceedings where rights are determined, must be respected during the process of deciding on refugee status, as this mechanism permits determination of whether a person fulfills the requirements to enjoy the right to asylum and protection against refoulement. Likewise, the right to simple and effective remedy that protects against acts that breach fundamental rights, set forth in Article 25 of the American Convention, must be applied, with no discrimination, to all persons subject to the jurisdiction of the State, including all individuals who are not nationals of that State. Specifically, the following guarantees must be respected in the process of determining refugee status:

- the right to a hearing for the child to file his or her request for asylum and to freely express his or her opinion, within a reasonable term and before a competent, impartial and independent authority. This in turn presupposes protection against refoulement and return at the border. Likewise, to ensure the greatest possible participation by the child, the procedure must be adequately explained to him or her, together with decisions reached and their possible consequences; also, whenever it is appropriate, the State should guarantee that the child receives assistance from a legal representative who is prepared for this function;
- adoption of special measures that allow the asylum request of a child to be studied in a more flexible manner, taking into account that children generally experience persecution in a different manner from adults; these measures might include granting of the benefit of the doubt when analyzing the request, less rigid standards of evidence, and a more expedite procedure; and
- an assessment of the degree of mental development and maturity of the child by a specialist with the required training and experience; if the child is not sufficiently mature, more objective factors must be considered when analyzing his or her request, such as conditions in the country of origin and situation of his or her next of kin.

Likewise, protection of the family, as a basic social unit, is also set forth in international human rights treaties. Therefore, any State decision that affects the unity of the family must be adopted in accordance with the right to fair trial set forth in the American Convention. To respect unity of the family, the State must not only abstain from acts that involve separation of the members of the family, but must also take steps to keep the family united or to reunite them, if that were the case.

In this regard, there must be a presumption that remaining with his or her family, or rejoining it in case they have been separated, will be in the best interests of the child. However, there are circumstances in which said separation is more favorable to the child. Before reaching this decision, all parts involved must be heard. The State is also under the obligation not only to abstain from measures that might lead to separation of families, but also to take steps that will allow the family to remain united, or for its members to reunite if they have been separated.

Detention of asylum-seekers is also undesirable due to its negative consequences for their possibilities of participating in the asylum request proceedings and because it can be a traumatic experience. In this regard, the Executive Committee of the United Nations High Commissioner for Refugees (UNHCR) has stated that persons who request asylum and who have been admitted to determine refugee status in a country “should not be sanctioned or exposed to unfavorable treatment solely based on their presence in that country being deemed illegal.” Thus, detainment of said persons –if necessary- must be for a brief period and must be exceptional in nature, and other options should be preferred. In addition, the specific situation of each person should be studied before ordering his or her detainment.

Therefore, this Committee has identified four hypothetical situations in which detainment of an individual might be considered “necessary”:

i. to verify his or her identity;
ii. to establish the grounds on which the request for refugee status or asylum is based;
iii. to deal with cases in which those requesting refuge or asylum have destroyed their identification documents or have used fraudulent documentation to confuse the authorities; or
iv. to protect national security or public order.

When minors are involved, these criteria should be even more restrictive and, therefore, as a rule, children should not be detained and, instead, they should receive lodging and adequate supervision by State authorities in charge of the protection of children. If there are no other alternatives, detention must be an ultima ratio measure and one adopted for the shortest possible period; likewise, children should have at least the minimum procedural guarantees granted to adults.

On the other hand, children whose parents request asylum or receive refuge find themselves in an especially vulnerable situation with respect to restrictive migration control policies in the region, as “families are increasingly marginalized and vulnerable to abuse.” Children are also liable to forced repatriation without minimum guarantees and safe conditions.

Likewise, existence of children without a nationality places them in an unprotected situation internationally, as they do not receive the benefits and rights enjoyed by citizens, and if the State also denies them their birth certificates when they are born in the country of refuge, this places them at “permanent risk of being arbitrarily expelled and therefore of being separated from their families,” which very often leads to “children’s loss of many other rights through the loss of this first one.”

c. Cases where life and health are endangered:
When children suffer abuse, “this not only causes psychological, physical and moral damage to them, but also exposes them to sexually transmitted diseases, which worsens the danger to their lives.” Unfortunately, these facts often remain within the household environment and in other cases the State does not act, even though it has the authority to exercise appropriate mechanisms to protect them. Furthermore, mechanisms to punish the perpetrators are often ineffective, thus denying access to justice and obstructing any idea of protecting children.

d. Cases of especially vulnerable children and adolescents:

When States do not provide adequate protection to children who are in a special situation due to any physical or mental disability, this places those children in a state of defenselessness, which worsens when they are subject to an internment system that does not have adequate resources for this purpose.

e. Cases of wardship or guardianship (adoption):

The problem of illegal adoptions, together with child pornography and prostitution, generates great concern internationally. This problem arises primarily when “there are legislative flaws that place no obstacle to this type of crimes.” Especially in connection with adoption, judicial intervention should be ensured to control its implementation, because it is important that it be “an act geared toward the well-being of the child” and lack of control over it can lead to abuse and illegal actions.

f. Children and adolescents who do not have access to education:

All children have the right to education as a universally recognized right. However, there are millions of primary school-age children who cannot attend school, and they are therefore in a situation of denial of the right to education, in turn linked to violations of civil and political rights such as illegal work, detainment in prisons, and ethnic, religious, or other forms of discrimination, worsened in cases of children in especially difficult situations such as children who are members of ethnic minorities, orphans, refugees, or homosexuals.

Likewise, violence to maintain discipline in classrooms and to punish children with low academic performance are factors that, aside from the direct consequences they may cause, hinder access to education, which the States must undertake to remove.

Development of Article 19 of the American Convention:

Based on Article 19 of the American Convention, the child has the right to protection measures by the States, which must be granted without any discrimination. Implementation of this provision should take into account those of other international instruments, pursuant to the interpretive criterion of Article 29 of the American Convention that enshrines “the principle of applicability of the provision most favorable to the individual,” as well as the provisions and principles of the Convention on the Rights of the Child, especially expressed in the principle of the “best interests of the child.”

Special protection measures that must be granted to children “surpass the exclusive control of the State” and Article 19 of the American Convention requires of States the existence of “a comprehensive policy for protection of children” and adoption of all measures required to ensure full enjoyment of their rights.

Substantive and procedural guarantees pertaining to special protection enshrined in Article 19 of the American Convention:

Due process guarantees and judicial protection are fully applicable “when solving disputes that involve children and adolescents, as well as regarding proceedings or procedures to establish their rights or their situation.”

A. Substantive guarantees:

The purpose of Articles 8 and 25 of the American Convention is to “ensure effective protection of rights, surrounding it with indispensable procedural and substantive safeguards” for realization of the rights of children. Three of these stand out:

i. Principle of culpability (nulla poena sine culpa):

This principle, recognized in various international treaties, consists of the “need for culpability to exist for there to be punishment.” As it is currently conceived, the principle of presumption of innocence is considered a “probatory rule or trial rule” and a “rule for treatment of the accused.”

With respect to the practices that the Commission proposes in its request, it is necessary to establish that guilt is closely associated to chargeability, so a person lacking in psychological or physical faculties, whether due to lack of sufficient maturity or because he or she has severe physical alterations, cannot be declared guilty and, therefore, cannot be criminally responsible for his or her acts, even if they are defined as crimes and are against the law. Thus, immunity from prosecution is “a limitation of criminal responsibility based on intellective and volitional capacity,” as well as on other significant factors that must be taken into account to establish immunity from prosecution.

A judicial decision on chargeability must not involve any type of discrimination nor stigmatization against those who are immune from prosecution, as in the case of children, such as their being considered inferior or incapable, but rather that “they are simply persons in situations of inequality.” Therefore, establishment of their “immunity from prosecution” must derive from “a socio-political and political-criminological decision, that reflects the obligation of the State to consider their special condition in society,” so they must respond for their actions, but in a different way than adults. The principle of equality must then be applied in the sense that “those who are unequal must be treated differently, to make them equal.”

With respect to children, recognition of their special needs should be taken into account when they are granted entitlement to their rights, as well as when responsibilities are demanded of them. Currently, “what is sought is not to extend immunity from prosecution to adolescents, but rather [...] to establish their criminal responsibility,” so their acts, while not being deemed crimes, will have legal consequences, consistent with their condition as persons, their dignity, their rights, and the special characteristics of each child.

Therefore, it is deemed that children under 18 but older than 12 or 14 “should not be considered criminally chargeable, but criminally responsible,” taking into account that, as a minor, he or she is a person who is immune from prosecution and “has faced obstacles to participate on an equal basis in society and to satisfy his or her needs,” and therefore the State must take into account these circumstances and foster conditions that facilitate their integration into society.

Principle of lawfulness (nullum crimen, nulla poena sine lege):

Understood as a procedural guarantee, this principle seeks to ensure that “all proceedings take place in accordance with the law,” as well as to establish a framework for action by the authorities in charge of deciding matters pertaining to minors.

This principle has been developed in case law of the Court and is found in international instruments, and it establishes the impossibility of “punishing an act without a law having previously sanctioned it as a crime.” It also establishes the obligation to recognize immunity of minors from prosecution as regards their criminal responsibility, both to set the limits where this cause of immunity from prosecution begins and ends, and also regarding “the time within which the re-socializing treatment of the juvenile offender must be imposed.”

Sometimes the principle of lawfulness is “confronted by reality,” as there is legislation with provisions that abridge rights of children, “based exclusively on their personal or circumstantial conditions.”

Even though the Constitutions of the countries of the region forbid arbitrary deprivation of liberty, the authorities often breach this guarantee with regard to minors, as they do not have a court order to detain them, they do not bring the child before a competent judicial authority within 24 hours, and because of the very conditions of detainment, all of which threaten the minor with subsequent violations.

iii. Principle of humane treatment:
The purpose of this principle is to forbid abuse by the authorities while a child is institutionalized or an offender is serving a sentence. It has three main consequences: to explicitly forbid torture or cruel, inhuman or degrading treatment; to state the aim of re-education and social resettlement of the children to whom these measures are applied; and to forbid application of the death penalty to persons who were under 18 at the time of the facts. Therefore, a measure that deprives liberty “can in no case involve the loss of some of the rights that are compatible with it, and even those rights that are necessary for adequate re-socialization must be recognized.”

Furthermore, many detention centers do not have appropriate infrastructure, nor human or professional resources able to develop the educational and work programs that will enable the re-education and social resettlement sought by these measures.

B. Procedural guarantees:

These are all guarantees that must be respected because they are necessary in any judicial situation where a controversy regarding a right must be decided in an equitable manner. Thus, procedural guarantees must be recognized not only in proceedings where criminal responsibilities are decided, but also “in all judicial or administrative processes where a there is a direct or indirect discussion of a fundamental right” of the children.

i. Principle of jurisdictionality:

Administration of justice must be entrusted to a competent, independent and impartial judge, pursuant to Article 8 of the American Convention. Likewise, when deciding about controversies or situations that involve children and adolescents, efforts must be made to preserve specialization by the bodies entrusted with this task. Furthermore, in criminal matters, the authorities must be judicial, except when there is a “transfer of proceedings” to administrative jurisdiction, in cases in which this is better for the parties involved, especially the child. The authorities in charge of solving conflicts that involve minors must also receive training, as a fundamental requirement for their functions.

ii. Presence of both parties:

It is crucial to establish the parties involved in the proceedings, as well as to guarantee the rights protected by law. For this, it is necessary to “grant equal opportunities to the parties to argue and defend their claims” and to provide “due balance among the parties to the proceedings.” Efforts must also be made for “the proceedings to include an actor, plaintiff or claimant party who is clearly distinct from the judicial function in charge of reaching a decision.”

Adequate legal advice and participation of parents or guardians during the proceedings enables protection required by the child due to his or her special condition.

iii. Principle of inviolability of defense:

This principle means that every person must effectively enjoy the right to adequately prepare his or her defense, which requires being informed of the charges and of the evidence against him or her, as well as the right to suitable legal representation throughout the proceedings, which “cannot be substituted by parents, psychologists, social assistants.” Furthermore, this right involves not submitting the detainee to tortures to obtain an admission that he or she committed the criminal act.

iv. Principle of the public nature of the proceedings:

In accordance with this principle, all parties to the proceedings must be informed of and have access to the procedural actions as “a means to control the development of the proceedings and to avoid placing any of them in a position of defenselessness.” Likewise, when minors are involved, publicity must be limited to benefit their dignity or privacy, as well as in situations where debate of the case may have negative consequences or lead to stigmatization.

v. Principle of appeal or review:

All persons, including children, have the right to enjoy the possibility of review of a decision to determine whether the law was adequately applied and to assess the facts and evidence, in all proceedings where decisions are reached regarding some of their fundamental rights. Also, “this right is always expanded with the possibility of resorting to expedite remedies (habeas corpus or similar actions) against decisions that involve deprivation of liberty or prolonging it.”

Conclusions

During the last decade, a new doctrinal scenario developed, based on international human rights law, called the “doctrine of comprehensive protection.” It was founded on the recognition of children as legal persons, which has made it possible to leave the “theory of the irregular situation” behind. In this regard, “the Convention on the Rights of the Child, [has constituted] the foundation and cornerstone for the new doctrine.”
With respect to Article 19 of the American Convention, the Inter-American Court “has given life to the substantive content of that provision, incorporating –for its interpretation and application- the body of provisions and of doctrine that have enabled an expansion of standards regarding this matter.” This phenomenon has been developed by the concept of the “best interests of the child.” All of this has made possible “substantial progress in protection of the human rights of children and adolescents, ensuring them in a better and more complete manner exercise of their rights and guarantees.”

Effective recognition of the rights of children requires a major social and cultural movement, more than an “appropriate legislative framework”, where the various agents play a fundamental role: civil society, regarding education and fostering children’s rights at all levels; non-governmental organizations, by denouncing, defending and demanding children’s rights; States by “ensuring fulfillment of protection measures inferred from Article 19 of the American Convention […] in light of the best interests of the child, as well as the other ratified treaties on this matter;” the bodies of the inter-American system, with respect to the challenge of expanding recognition and demanding compliance by the States parties to the American Convention.

Regarding the practices identified by the Inter-American Commission, they conclude that “in each and every one of them, due process guarantees and effective judicial protection must be applied,” which necessarily affects the discretion of the State to decide on matters where the fundamental rights of minors are discussed.

Comisión Colombiana de Juristas:

In its August 2, 2002 brief, the Colombian Commission of Jurists stated that:

To be able to realize the aspiration to a new set of international provisions for the protection of children’s rights, it is imperative to modify certain legislation in the region, that was enacted to address problems of children but especially those of children who broke criminal laws. To attain that objective, it is relevant to point out that it is not sufficient to establish a specialized criminal jurisdiction for children, which seeks to put an end to the “irregular situation” system that views children as objects rather than subjects of rights. This only deepens the presence of irregularities, since it is quite the contrary of the model of comprehensive protection that must be adopted and is, therefore, not consistent with the rights of juvenile offenders.

Therefore, children must be exempted from any application of criminal law, even if it is considered to be special in nature. The State must seek to fully guarantee children’s rights to prevent children from entering criminal life. It must also ensure full exercise of those rights and the possibility of receiving a complete education in accordance with human dignity and human rights principles, especially those of tolerance, liberty, equality, and solidarity.

In this regard, it is important to highlight that “for prevention of juvenile crime, policies that seek to prevent crimes being committed by children must be set within the framework of a social policy, the overall aim of which should be to promote children’s well-being.” The States must strive to provide sufficient conditions for decent sustenance of the family, as children need the means for their complete physical, mental, and social development.

Furthermore, all efforts must be made to avoid separation of children from their family environment, as this should be a measure of last resort that, in any case, must be adopted with due respect for jurisdictional guarantees and must anyhow be in accordance with human dignity and therefore “in no case should it involve a reduction of rights, especially the right to liberty.”

With respect to observance of criteria set forth regarding legal capacity of persons being established as a limit and a criterion with respect to children, it should be stated that most legislation deems that given their physical and mental development, it is only at the age of 18 that they are sufficiently mature for adult attitudes and, therefore, all those below that age are to be considered children or adolescents. This involves applying all guarantees and rights set forth for them, realizing that from this standpoint, all persons under 18 are unable to adequately decide, which involves greater attention by the State and the family to provide them with guidance, support, and care.

On the other hand, it is necessary to highlight that any decision by the State regarding juvenile offenders has as its main and almost exclusive objective education of the child or adolescent, whose guidance must be set within the principles of protection and satisfaction of the children’s needs. These criteria, per se, make it necessary to set aside any application of criminal law, even if the latter is special, to children because its purpose is not education of nor care for the perpetrator, but rather punishment for incurring in the crimes defined by law.

In light of the above, it concludes that:

1. the American Convention on Human Rights must be interpreted in such a way that it reaffirms the obligation of the State to protect children and guarantee their rights;
2. ensuring the necessary conditions for support of children is the best way to prevent crimes being committed by children and youths;
3. juvenile offenders must receive treatment in accordance with the respective guarantees, primarily seeking their education and completely outside the framework of criminal law. Every effort must be made to avoid deprivation of liberty, which should only be a measure of last resort;
4. systems to address children’s needs must include educational programs for parents and teachers, and those in charge of assistance programs for children must be trained in the area of children’s human rights; and
5. States must undertake to make every effort to prevent violations of the rights of children, and to investigate and punish whoever breaches those rights, as well as to restore the rights breached.

III
COMPETENCE

16. This request for an advisory opinion was filed before the Court by the Commission, exercising the authority granted by Article 64(1) of the Convention, which states that:

[t]he member states of the Organization may consult the Court regarding the interpretation of this Convention or of other treaties concerning the protection of human rights in the American states. Within their spheres of competence, the organs listed in Chapter X of the Charter of the Organization of American States, as amended by the Protocol of Buenos Aires, may in like manner consult the Court.

17. The aforementioned authority has been exercised in this case fulfilling the respective requirements as set forth in the Rules of Procedure: precise statement of the questions on which the opinion of the Court is being sought, identification of the provisions to be interpreted, and the name and address of the Delegate, and submission of the considerations giving rise to the request (Article 59 of the Rules of Procedure), as well as identification of the international instruments other than the American Convention on which an interpretation is also requested (Article 60(1)).

18. The Commission asked the Court to “interpret whether Articles 8 and 25 of the American Convention on Human Rights constitute limits to the good judment and discretion of the States to issue special measures of protection in accordance with Article 19 of the Convention,” and for this it proposed five hypothetical practices for the Court to decide on their compatibility with the American Convention, as follows:

a) separation of young persons from their parents and/or family, on the basis of a ruling by a decision-making organ, made without due process, that their families are not in a position to afford their education or maintenance;

b) deprivation of liberty of minors by internment in guardianship or custodial institutions on the basis of a determination that they have been abandoned or are prone to fall into situations of risk or illegality, motives which should not be considered of a criminal nature, but, rather, as the result of personal or circumstantial vicissitudes;

c) the acceptance of confessions by minors in criminal matters without due guarantees;

d) judicial or administrative proceedings to determine fundamental rights of the minor without legal representation of the minor; and

e) determination of rights and liberties in judicial and administrative proceedings without guarantees for the right of the minor to be personally heard; and failure to take into account the opinion and preferences of the minor in such determination.

The Court was also asked to issue “valid general criteria” regarding these matters.

19. Fulfillment of the requirements set forth in the Rules of Procedure regarding submission of a request for an advisory opinion does not mean that the Court is under the obligation to respond to it. In this regard, the Court must take into account considerations that transcend merely formal aspects and that are reflected in the generic limits that the Court has recognized in exercising its advisory function. Said considerations are addressed in the following paragraphs.

20. The Commission requested a juridical interpretation of certain precepts of the American Convention, and subsequently expanded its proposal and requested the interpretation of other treaties, mainly the Convention on the Rights of the Child, insofar as these treaties might contribute to specify the scope of the American Convention. For this, the Court must first of all decide whether it is invested with the authority to interpret, by means of an advisory opinion, international treaties other than the American Convention , when their provisions contribute to specify the meaning and scope of provisions contained in the latter.

21. The Court has set certain guidelines for interpretation of international provisions that do not appear in the American Convention. For this, it has resorted to the general provisions set forth in the Vienna Convention on the Law of Treaties, especially the principle of good faith to ensure agreement of a norm with the object and purpose of the Convention. This Court has also established that interpretation must take into account “the changes over time and present-day conditions,” and that the interpretation of other international instruments cannot be used to limit the enjoyment and exercise of a right; also, it must contribute to the most favorable application of the provision to be interpreted.

22. Likewise, this Court established that it could “interpret any treaty as long as it is directly related to the protection of human rights in a Member State of the inter-American system,” even if said instrument did not issue from the same regional protection system, and that

[n]o good reason exists to hold, in advance and in the abstract, that the Court lacks the power to receive a request for, or to issue, an advisory opinion about a human rights treaty applicable to an American State merely because non-American States are also parties to the treaty or because the treaty has not been adopted within the framework or under the auspices of the inter-American system.

23. The Court has also had the opportunity to refer specifically to the Convention on the Rights of the Child, to which the Commission refers in the instant request for an advisory opinion, through the analysis of Articles 8, 19 and 25 of the American Convention. In the “Street Children” Case (Villagrán Morales et al.), in which Article 19 of the American Convention was applied, the Court resorted to Article 1 of the Convention on the Rights of the Child as an instrument to define the scope of the concept of “child.”

24. In that case, the Court highlighted the existence of a “very comprehensive international corpus juris for the protection of the child” (which the Convention on the Rights of the Child and the American Convention are part of), which should be used as a source of law by the Court to establish “the content and scope” of the obligations undertaken by the State through Article 19 of the American Convention, specifically with respect to identification of the “measures of protection” to which the aforementioned precept refers.

25. Children constitute a group to whom the international community has paid much attention. The first international instrument regarding them was the 1924 Geneva Declaration, adopted by the International Association for the Protection of Children. This Declaration recognized that humanity must give children the best of itself, as a duty that is above all considerations of race, nationality, or creed.

26. At least 80 international instruments adopted during the 20th century are applicable to children in various degrees. Among them, the following stand out: the Declaration on the Rights of the Child, adopted by the General Assembly of the United Nations (1959), the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules, 1985), the United Nations Standard Minimum Rules for Non-custodial Measures (The Tokyo Rules, 1990) and the United Nations Guidelines for the Prevention of Juvenile Delinquency (Riyadh Guidelines, 1990). This same circle of child protection includes Agreement 138 and Recommendation 146 of the International Labor Organization and the International Covenant on Civil and Political Rights.

27. As regards the inter-American system for the protection of human rights, it is necessary to take into consideration Principle 8 of the American Declaration of the Rights and Duties of Man (1948) and Article 19 of the American Convention, as well as Articles 13, 15 and 16 of the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (“Protocol of San Salvador”).

28. With respect to the aforementioned Article 19 of the American Convention, it is worth highlighting that when it was drafted there was a concern for ensuring due protection of children, by means of State mechanisms directed toward this end. Today, this precept requires a dynamic interpretation that responds to the new circumstances on which it will be projected and one that addresses the needs of the child as a true legal person, and not just as an object of protection.

29. The Convention on the Rights of the Child has been ratified by almost all the member States of the Organization of American States. The large number of ratifications shows a broad international consensus (opinio iuris comunis) in favor of the principles and institutions set forth in that instrument, which reflects current development of this matter. It should be highlighted that the various States of the hemisphere have adopted provisions in their legislation, both constitutional and regular, regarding the matter at hand; the Committee on the Rights of the Child has repeatedly referred to these provisions.

30. If this Court resorted to the Convention on the Rights of the Child to establish what is meant by child in the framework of a contentious case, all the more so can it resort to said Convention and to other international instruments on this matter when it exercises is advisory function, “relating not only to the interpretation of the Convention but also to ‘other treaties concerning the protection of human rights in the American states.”’

31. Following its practice regarding advisory opinions, the Court must establish whether issuing an advisory opinion might “have the effect of altering or weakening the system established by the Convention in a manner detrimental to the individual human being.”

32. The Court can use several parameters when it conducts this examination. One of them, which is consistent with most international case law on this subject matter, is that it might be inconvenient for there to be a premature determination on a theme or issue that might subsequently be brought before the Court in the context of a contentious case. However, this Court has stated that the existence of a controversy regarding interpretation of a provision is not, per se, an impediment to exercise its advisory function.

33. When it exercises its advisory function, the Court is not called upon to decide on matters of fact, but rather to elucidate the meaning, purpose and reason of international human rights provisions. The Court carries out its advisory function within this framework. The Court has asserted the distinction between its advisory and contentious jurisdiction several times, by stating that

[t]he advisory jurisdiction of the Court differs from its contentious jurisdiction in that there are no “parties” involved in the advisory proceedings nor is there any dispute to be settled. The sole purpose of the advisory function is “the interpretation of this Convention or of other treaties concerning the protection of human rights in the American states.” The fact that the Court’s advisory jurisdiction may be invoked by all the Member States of the OAS and its main organs defines the distinction between its advisory and contentious jurisdictions.

[...] The Court therefore observes that the exercise of the advisory function assigned to it by the American Convention is multilateral rather than litigious in nature, a fact faithfully reflected in the Rules of Procedure of the Court, Article 62(1) of which establishes that a request for an advisory opinion shall be transmitted to all the “Member States”, which may submit their comments on the request and participate in the public hearing on the matter. Furthermore, while an advisory opinion of the Court does not have the binding character of a judgment in a contentious case, it does have undeniable legal effects. Hence, it is evident that the State or organ requesting an advisory opinion of the Court is not the only one with a legitimate interest in the outcome of the procedure.

34. As it affirms its competence regarding this matter, the Court recalls the broad scope of its advisory function, unique in contemporary international law, which enables it “to perform a service for all of the members of the inter-American system and is designed to assist them in fulfilling their international human rights obligations” and to

assist states and organs to comply with and to apply human rights treaties without subjecting them to the formalism and the sanctions associated with the contentious judicial process.

35. The Court deems that pointing out a few examples serves the purpose of referring to a specific context and of illustrating the various interpretations that may exist regarding the juridical issue that is the subject matter of the instant Advisory Opinion being discussed, without this involving a juridical statement by the Court on the situation posed in said examples. The latter also allow the Court to point out that its Advisory Opinion is not mere academic speculation and that its interest is justified due to the benefit it may bring to international protection of human rights. In addressing the issue, the Court is acting in its role as a human rights tribunal, guided by the international instruments that govern its advisory jurisdiction, and it conducts a strictly juridical analysis of the questions posed to it.

36. Therefore the Court deems that it must examine the matters posed in the request that is now analyzed and it must issue the respective Advisory Opinion.

IV
STRUCTURE OF THE OPINION

37. It is inherent to the authority of the Court for it to have the authority to structure its pronouncements in the manner it deems most adequate for the interests of justice and for an advisory opinion. For this, the Court takes into account the basic issues that underlie the questions raised in the request for an advisory opinion and analyzes them to reach general conclusions that, in turn, may apply to the specific points mentioned in the request itself and to other related themes. In this instance, the Court has decided to address, first of all, the more substantive conceptual themes that will allow demarcation of the analysis and conclusions regarding specific, especially procedural matters submitted to it for consideration.

V
DEFINITION OF CHILD

38. Article 19 of the American Convention, which orders special measures of protection in favor of children, does not define this concept. Article 1 of the Convention on the Rights of the Child states that a “child [is] every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.”

39. In the Beijing Rules, in the Tokyo Rules and in the Riyadh Guidelines, the terms “child” and “juvenile” are used to refer to the individuals to whom their provisions are directed. According to the Beijing Rules, a “juvenile is a child or young person who, under the respective legal systems, may be dealt with for an offence in a manner which is different from an adult.” The Tokyo Rules do not state any exceptions to the age limit of 18 years.

40. At this time, the Court will not address the implications of the various expressions used to refer to the members of this population group under the age of 18. Some of the positions expressed by participants in the proceedings in connection with this Opinion noted the difference between a child and a minor, from certain perspectives. For the aims sought by this Advisory Opinion, the difference established between those over and under 18 will suffice.

41. Adulthood brings with it the possibility of fully exercising rights, also known as the capacity to act. This means that a person can exercise his or her subjective rights personally and directly, as well as fully undertake legal obligations and conduct other personal or patrimonial acts. Children do not have this capacity, or lack this capacity to a large extent. Those who are legally disqualified are subject to parental authority, or in its absence, to that of guardians or representatives. But they are all subjects of rights, entitled to inalienable and inherent rights of the human person.

42. Finally, 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.

VI
EQUALITY

43. As both Mexico and Costa Rica, as well as the Inter-American Institute of Children, ILANUD and CEJIL noted, it is necessary to specify the meaning and scope of the principle of equality with respect to the matter of children. Previously, this Court has stated that Article 1(1) of the American Convention places the States under the obligation to respect and guarantee full and free exercise of the rights and liberties recognized therein, with no discrimination. Any treatment that can be considered discriminatory with respect to the rights protected by the Convention is, per se, incompatible with it.

44. In a more specific sense, Article 24 of the Convention protects the principle of equality before the law. Thus, the general prohibition of discrimination set forth in Article 1(1) “extends to the domestic law of the States Parties, permitting the conclusion that in these provisions the States Parties, by acceding to the Convention, have undertaken to maintain their laws free of discriminatory regulations.”

45. In an Advisory Opinion, the Court noted that

[t]he notion of equality springs directly from the oneness of the human family and is linked to the essential dignity of the individual. That principle cannot be reconciled with the notion that a given group has the right to privileged treatment because of its perceived superiority. It is equally irreconcilable with that notion to characterize a group as inferior and treat it with hostility or otherwise subject it to discrimination in the enjoyment of rights which are accorded to others not so classified. It is impermissible to subject human beings to differences in treatment that are inconsistent with their unique and congenerous character.

46. Now, when the Court examined the implications of differentiated treatment given to the beneficiaries of certain provisions, it established that “not all differences in treatment are in themselves offensive to human dignity.” In this same sense, the European Court of Human Rights, based on “the principles that can be inferred from the juridical practice of a large number of democratic States,” warned that a distinction is only discriminatory when it “lacks objective and reasonable justification.” 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 in which they find themselves.

47. This Cour