In the region of Latin America the increase in criminalization and a lowering of the minimum age of criminal responsibility is a social phenomenon of serious concern. Public policies must focus on the rights of the child, and the role of civil society is of uppermost importance. Over the last two decades – since the ratification of the Convention on the Rights of the Child (CRC) and the United Nations Rules for the Protection of Juveniles Deprived of their Liberty (“Havana Rules”), Latin America has incorporated most of the international human rights instruments.
With respect to the CRC, all the states in the region have committed to the mechanism since its approval in the UN General Assembly in 1989. States have made strides in building laws in harmony with the CRC, but in its implementation they are still far from achieving the objectives. In a contradictory sense, the political power to enact laws in question in some countries does not correspond to the financial policy efforts governments are making to ensure the effective exercise of the rights enshrined in the CRC.
In the field of juvenile justice, there are tensions surrounding the application of standards. To overcome these great difficulties, we need to make our societies embrace juvenile justice fully under the democratic strengthening of the legality of rule of law. This implies that there is no conception of State law that is not built on the basis of the full exercise of the rights embodied in the respective human rights legal structures.
The concept of juvenile justice is within the human rights principles put forward in the CRC. The field of juvenile justice must take a holistic view that there are other principles and rights enshrined in the CRC, in the light of which we must consider the specific issue of juvenile justice. The first of these rights is non-discrimination (Article 2, CRC), which all legislation should enshrine. The second is the interests of the child (Article 3, CRC), which must be present in all decisions made, including obviously decisions made in the area of juvenile justice. The third interest is the right to development, survival and life (Article 6, CRC). We need to create the conditions to ensure children and adolescents can effectively exercise this right.
The fourth interest that must be considered is adolescent’s right to participate (Article 12, CRC), to be heard and taken into account in all the judicial, administrative, or in the private public. Article 12 of the CRC expressly sets forth the sense of importance and need to investigate to what extent young people are part of the dialogue in areas where they are due to be heard, such as in discussing programs or legal reforms. The views of children and adolescents should be heard not only because the perspectives and opinions they bring will give a final result to the objective pursued, but because the objective will have a greater impact and higher quality and development in its end results and achievements.
In historical terms, the above items and the CRC in general symbolises the new “social contract”, with two very specific axes: firstly, acknowledging the child as a subject of legal rights – this requires cultural changes; and secondly, the necessity of States to integrate human rights into public policies (ex. there must be public investment and visibility of children in state budgets).
The key is that children have the opportunity to assert their rights in court and administrative rulings. Independent monitoring mechanisms (such as committees, parliamentarians, NGOs, academic institutions, etc.) are necessary to ensure this participatory principle, whether it is done individually (Article 12, CRC) or collectively (Article 15 CRC). Training and capacity building of all actors involved with children in the justice system is of course also required. Additionally, data collection, analysis is required, and further research must also take place in order to demonstrate and follow-up on the evolution of the social phenomenon of juvenile justice.