h) Expert opinion of Emilio Arturo García Méndez, former advisor to UNICEF and an expert on the rights of the child. On the international level, the minimum standards can be divided into three different categories: prescriptive or normative; juridical (perhaps the most obvious and the most often cited, since it concerns the material conditions that the deprivation of liberty must meet), and the category that concerns the problem of interpreting the rules relating to deprivation of liberty.
At the domestic level, the evolution of doctrine and jurisprudence, as well as each State’s constitution and specific laws on the subject of deprivation of liberty all have to be considered.
On the issue of juridical standards, clearly the Convention on the Rights of the Child has and still does influence domestic laws. The Convention recognizes deprivation of liberty and uses that precise language. Extraordinary progress has been made in moving away from the old concepts of the rights of the child, which were generally expressed in somewhat euphemistic terms.
The Convention on the Rights of the Child recognizes deprivation of liberty in the case of minors, but also requires States parties to establish a minimum age below which the consequences of a violation of criminal law will not be applied.
As for the problem of interpreting the juridical standards, unambiguous rules have to be established at the domestic level that embody those principles of the Convention on the Rights of the Child that require that detention be reserved only for exceptional cases, and then be for the shortest appropriate period of time and only as a “measure of last resort.” States also need institutions to ensure that legal guarantees are effectively observed.
It is a basic and elementary obligation of the State to ensure to its minors the juridical-institutional and political-cultural conditions necessary so that, at the very least, the mandatory and free public education that is the general norm in every country of the world is available within juvenile detention institutions. Consequently, “institutions of everyday life” have to be an integral part of the deprivation of liberty, so that re-socialization -the goal of which is to re-integrate the minor into his family unit and the normal institutions of the State- can proceed with as little shock and as little trauma as possible.
Under the new system, relevance or authority of the law becomes a central criterion, at least from the normative standpoint. In today’s world, the issue of material conditions is entirely relevant and cannot be divorced from the issue of legal relevance or authority. Another fundamental point has to do with “institutional totality or lack thereof” which concerns the question of whether the institution, within its walls, offered everything the minor could need; now, however, the opposite is the goal, because the Convention states that deprivation of liberty should only be used in exceptional cases, and then only as a “last resort” and “for the shortest appropriate period of time.”
The reference in the international standards to preventive detention in these cases and to reasonable time periods is one of the most problematic aspects both from the normative standpoint and from the standpoint of judicial interpretation. Clearly, the notion of preventive detention as an anticipated form of punishment or as an exaggerated albeit temporary method of teaching a lesson still persists.
Human rights are “evolving in the direction of specificity,” leaving less room for discretion and requiring more exacting language in the law. Experience has demonstrated that judicial discretion invariably works to the disadvantage of the weakest and least protected sectors. Therefore, judicial discretion has to be drastically reduced through a legislative technique that spells out precisely what conditions must be present in order for a juvenile to be lawfully deprived of his liberty.
The measures that could be taken in a country to mitigate any harm done to a group of juveniles held under subhuman conditions would be on two different levels. On the one hand, in the case of harm actually caused to persons and to individuals, the response cannot, prima facie, be general in nature; instead, the responses must be tailored to the individuals, on a case-by-case basis. If it is established that a deprivation of liberty is not authorized by law, i.e., that the deprivation of liberty is unlawful, then a standard would have to be established for determining reparations. That standard must consider what had been and what might have been each individual’s life plan had the State not unlawfully and improperly stepped in and disrupted it. The settlements must be forward looking as well, so that these cases do not recur.
Without belittling the importance of tangible, individual reparations and reparations in the normative area and in institutional policy, symbolic reparations are a necessary tool by which to effect real change for the future and serve a very central instructive purpose for the future of the interpretation of the Convention on the Rights of the Child. To begin with, States have to be required to apologize for having enforced, in the case of children, bad laws that were for many years blatantly unconstitutional. States must also pay the necessary pecuniary damages and make reparations in the form of legal and institutional changes. Symbolic reparations are an important dimension not just to work toward a just social policy but also to enhance a State’s own legitimacy.
Reform in Paraguay has made headway on the normative or prescriptive front, to bring its laws into line with the Convention on the Rights of the Child. However, it would be a mistake to think that changes at the normative or prescriptive level brought about change in the realm of implementation; normative or prescriptive changes have not always been matched by the institutional reforms needed to put the prescriptive changes into practice.
Then, too, imputability is a political and criminal justice decision. There is some debate as to whether imputability in the case of someone under the age of 18 is a violation of the Convention on the Rights of the Child. However, treating minors the same as adults is indeed a violation of the Convention on the Rights of the Child. In that sense, if imputability means that minors are treated the same as adults, then to charge a minor as an adult and punish him accordingly would be a violation of the spirit and the letter of the Convention on the Rights of the Child. In Latin America, the concept of imputability has been replaced by the concept of criminal responsibility, where the violations of criminal law that juveniles commit are described in the Penal Code. In that sense, there is no juvenile crime. Paraguay has made progress in this regard; the penal consequences are different in the case of juveniles.
Implementation of a law on juvenile criminal responsibility can result in measures of two kinds: those that involve deprivation of liberty and those that do not. The State has a non-transferable, exclusive monopoly on responsibility for those deprived of their liberty.