Minors in Detention v. Honduras
Inter-American Commission on Human Rights
March 10, 1999
Other International Provisions:
American Convention on Human Rights, Articles 1 (obligation to respect rights), 5 (personal integrity), 7 (personal freedom), 8 (due process), 19 (rights of the child), 25 (judicial protection), 29, 46 and 50);
International Covenant on Civil and Political Rights, Articles 7 (prohibition of torture), 10 (deprivation of liberty);
United Nations Standard Minimum Rules for the Administration of Juvenile Justice, Rule 13 (pre-trial detention)
Amparo Law (Articles 32 and 33)
Child and Adolescent Code (Article 141)
Honduran Constitution (Articles 84, 119, 120, 122 and 182)
Juvenile Jurisdiction Law (Article 21)
Two non-profit organizations – the Center for Justice and International law (CEJIL) and the Asociación Casa Alianza – filed a complaint against Honduras on behalf of children who had been unlawfully arrested for non-criminal acts such as vagrancy and imprisoned alongside adults as authorised by the Honduran Supreme Court. Many of the children had been sentenced by criminal courts or magistrates rather than juvenile courts, and faced physical and sexual abuse while incarcerated.
Issue and resolution:
Juvenile justice; detention. The Commission agreed that Honduras had unlawfully arrested and incarcerated children in adult prisons, and made recommendations for Honduras to end the practices at issue.
Honduras had a well-established practice of allowing children to be deprived of their liberty and confined in adult prisons, which resulted in extensive violations of children's rights to liberty, humane treatment, a fair trial, and judicial protection under the American Convention on Human Rights. In examining these violations, the Commission looked to Honduras's obligations under the Convention on the Rights of the Child for guidance.
As such, the Commission urged Honduras, among other things, to adopt measures to prevent the unlawful detention of children, investigate and punish those responsible for this detention, and provide reparations to children whose rights had been violated.
Excerpts citing CRC and other relevant human rights instruments:
2. The petitioners argued that this practice was in violation of Article 122, paragraph 2 of the Constitution of Honduras, which stipulates that "No juvenile under the age of 18 shall be confined in a jail or prison", and Article 37 of the United Nations Convention on the Rights of the Child, which provides that "...every child deprived of liberty shall be separated from adults."
9. The petitioners alleged that the juveniles' physical integrity was imperiled and that the situation was contrary to all international laws governing the detention of minors, among them: Articles 5, 7, 19 and 29(b) of the American Convention on Human Rights (hereinafter "the American Convention" or "the "Convention"); Articles 7 and 10(b) of the International Covenant on Civil and Political Rights; Articles 3(1), 19(1) and, especially, 37 of the Convention on the Rights of the Child; and Article 13(4) of the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules).
72. For an interpretation of a State's obligations vis-a-vis minors, in addition to the provision of the American Convention, the Commission considers it important to refer to other international instruments that contain even more specific rules regarding the protection of children. Those instruments include the Convention on the Rights of the Child and the various United Nations declarations on the subject. This combination of the regional and universal human rights systems for purposes of interpreting the Convention is based on Article 29 of the American Convention and on the consistent practice of the Court and of the Commission in this sphere.
73. As for the detention of juveniles alongside adults, Article 37(c) of the United Nations Convention on the Rights of the Child, which was ratified by Honduras on August 10, 1990, states that "... every child deprived of liberty shall be separated from adults unless it is considered in the child's best interest not to do so..."
110. Depriving a minor of his liberty unlawfully, even if it be for a criminalized offense, is a serious violation of human rights. The State cannot argue the need to protect the child as grounds for depriving him of his liberty or of any other rights inherent in his person. Minors cannot be punished because they are at risk, that is to say, that because they need to work to earn a living, or because they have no home and thus have to live on the streets. Far from punishing minors for their supposed vagrancy, the State has a duty to prevent and rehabilitate and an obligation to provide them with adequate means for growth and self-fulfillment. In this connection, Article 39 of the Convention on the Rights of the Child states that:
States Parties shall take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of: any form of neglect, exploitation, or abuse, torture or any other form of cruel, inhuman or degrading treatment or punishment ... Such recovery and reintegration shall take place in an environment which fosters the health, self-respect and dignity of the child.
115. Article 37 of the Convention on the Rights of the Child also provides that "the arrest, detention or imprisonment of a child ... shall be used only as a measure of last resort."
138. At the international level, the United Nations Convention on the Rights of the Child provides that States Parties' shall, inter alia, develop institutions and services for the care of children (Article 18). States Parties are also to take "all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child. Such protective measures should include effective procedures for the establishment of social programs to provide necessary support for the child and for those who have the care of the child, as well as for the identification, reporting, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement." (Article 19).
139. In this connection, Article 37 of the same Convention provides that "Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the physical, social, cultural, moral and psychological needs of persons of his or her age..."
148. At the international level, Article 37(d) of the United Nations Convention on the Rights of the Child stipulates that "Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance ...". Under Article 40 of that Convention, the child has the right to "have the matter determined without delay by a competent, independent and impartial authority or judicial body in a fair hearing according to law and in the presence of legal or other appropriate assistance..."
The Supreme Court of Honduras issued a ruling on January 16, 1995 authorizing the incarceration of children in separate cell-blocks within adult prisons. According to the Government, this ruling was to be viewed as a temporary measure to address a rise in juvenile delinquency and the lack of security at existing juvenile correctional facilities. On November 29, 1995, the Government reported that the Supreme Court had decided to revoke its earlier ruling with effect from January 1, 1996.
CRIN believes this decision is consistent with the CRC. As recognised by the Commission, children should only be detained as a matter of last resort and for the shortest appropriate period of time under Article 37 of the Convention. In addition, Article 37 specifically stipulates that children must be detained separately from adults unless it would be in their best interests not to do so. Here, given the extensive abuse perpetrated against the children while in custody, this cannot be said to be the case.
Minors in Detention v. Honduras, Case 11.491, Inter-Am. C.H.R., Report No. 41/99, (1999)
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