Press Release

IACHR Office of the Rapporteur on the Rights of the Child Wraps Up Visit to Uruguay and Speaks Out against Reducing the Age of Criminal Responsibility

September 16, 2014

Montevideo, Uruguay—The Rapporteur on the Rights of the Child of the Inter-American Commission on Human Rights (IACHR), Rosa María Ortiz, wrapped up her September 1-5 visit to Uruguay. The purpose of the visit was to express the Office of the Rapporteur’s position on the referendum that will take place in October, which proposes a constitutional amendment to lower the age of criminal responsibility from 18 to 16 years old.

During her visit, the Rapporteur was received by the President of the Republic, Mr. José Mujica Cordano; the Vice President of the Republic and President of Parliament, Mr. Danilo Astori; the President of the Judiciary, Dr. Jorge Larrieux Rodríguez; the President of the Chamber of Representatives, Congressman Anibal Pereyra; the Deputy Secretary in the Ministry of Foreign Affairs, Luis Porto; and the President of the Board of Directors of the National Human Rights Institution (INDDHH), Ms. Mirtha Guianze. The Rapporteur also met with authorities from the Institute for Children and Adolescents of Uruguay (INAU), President Javier Salsamendi and Director Jorge Ferrando; authorities from the System for Adolescent Criminal Responsibility (SIRPA), Mr. Rubén Villaverde, Mr. Jorge Gago, and Dr. Mónica Rodríguez; the Secretary for Human Rights of the Presidency of the Republic, Dr. Javier Miranda; the Human Rights Commission of the Parliament; and the Public Prosecutor and Attorney General of Uruguay, Dr. Jorge Díaz. The Rapporteur also met with the Directors of the Ituzaingo Center and the SER Center, of Colonia Berro; the Directors of the TRIBAL Admissions Center and the “La Posada” Residential Center, a facility for mental health care; the Director of the “Uruguay Crece Contigo” program, Dr. Cristina Lustemberg; and the National Honorary Advisory Council on Childhood and Adolescence, headed by Mr. Oscar Gómez. In addition, the Rapporteur met with the International Coordinator of PIT-CNT, Mr. Fernando Gambera, and other members; with the Representative of UNICEF, Mr. Paolo Mefalopulos, and Ms. Lucía Vernazza; and with some family members of incarcerated juvenile offenders. The Rapporteur also met with various civil society organizations, including the Comité de Derechos del Niño Uruguay, Gurises Unidos, Vida y Educación, IPRU, El Abrojo, Cotidiano Mujer, CAINFO, DNI-URUGUAY, Jóvenes Maristas, IELSUR, Fundación Justicia y Derecho, SERPAJ, and Luna Nueva.

During the visit, the Rapporteur received information on the significant progress that has been made in the development of the public institutional framework for human rights protection. The Commission values and welcomes the establishment of the National Human Rights Institution and the Public Ombudsman’s Office, as well as the National Preventive Mechanism against Torture. It also welcomes the creation of the Human Rights Secretariat, under the Presidency of the Republic, and the government of Uruguay’s significant compliance efforts with its presentation of reports to the international human rights bodies. The Rapporteur is pleased to note positive changes with the creation of SIRPA (System for Adolescent Criminal Responsibility), along with significant resources for it to carry out its functions, and recognizes the changes underway in terms of infrastructure, which help and will continue to help in the rehabilitation of adolescents deprived of liberty. The Rapporteur also welcomes SIRPA’s efforts to bring on new staff and give them the training to carry out their new tasks, and recognizes the difficulties that still exist toward that end. The Rapporteur especially values the initiative in which agreements have been reached with six labor unions to find jobs for the young people involved and to closely follow the rehabilitation process, and believes that this initiative should be expanded and made known nationally and internationally.

Juvenile Justice and the Referendum Proposal to Lower the Age of Criminal Responsibility

During her visit, the Rapporteur observed that many of the challenges facing Uruguay have to do with ensuring that age parameters are established for determining the accountability of children and adolescents for breaking criminal laws, in accordance with applicable international norms. The Rapporteur reiterates what has been stated by the Inter-American Court of Human Rights: “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.” In this regard, the Rapporteur calls to mind that the State is particularly responsible for everyone deprived of liberty in the custody of the State, and especially for all children and adolescents, considering their special needs for protection, and that the State should therefore take positive measures to ensure that children and adolescents who are in its custody or subjected to the juvenile justice system can effectively exercise all their rights.

In her visit to Uruguay, the Commissioner learned about legislative initiatives that retreat from the standards the country has achieved in adapting domestic legislation to the principles of the American Convention on Human Rights and the body of law on this subject. Along these lines, the Rapporteur observes that the approval of the new constitutional amendment to be submitted to referendum during the October 2014 elections, which proposes lowering the age of criminal responsibility from 18 to 16 years of age, would constitute a grave violation of the fundamental rights of adolescents and run contrary to international treaties ratified by the State, as it infringes on the guarantee that adolescents who are criminally prosecuted will face a specialized juvenile justice system that makes exception for their age. The IACHR has reiterated that it is unacceptable for States to exclude from that system any person who has not yet reached adulthood, which under international law is at the age of 18. With regard to the issues subject to referendum, the Inter-American Court indicated in the Gelman case that the democratic legitimacy of specific facts or acts in a society is limited by the norms and international obligations of human rights protection recognized in international treaties such as the American Convention, so that the protection of human rights constitutes an “impassable limit” to the rule of the majority, that is, to the sphere of the “possible to be decided” by the majority in democratic jurisdictions.

Notwithstanding the progress mentioned earlier, the Rapporteur is concerned about the guarantees offered by the juvenile justice system and the possibility that adolescents may become victims of regressive change due to recently approved legislative reforms, such as Law 19.055. This measure stiffens penalties, making deprivation of liberty the rule by establishing that adolescents who commit crimes considered under this law to be very serious may not be released from prison for a period of one year. In practice, this has meant an exponential increase in incarceration. The Rapporteur notes that this situation is exacerbated by the lack of sufficient and robust programs to implement socio-educational measures as alternatives to deprivation of liberty, as well as challenges she observed in the implementation of programs to ensure an effective legal defense that looks after adolescents’ best interests.

The Rapporteur visited Colonia Berro, the SER Detention Center, and the SIRPA Ituzaingo Detention Center; she also visited the TRIBAL Admissions Center and the “La Posada” Residential Home for mental health treatment. The Rapporteur received information from the authorities regarding an upcoming transfer of the inmates who are now at the SER Center to new, recently opened facilities; this is an urgent need, given the serious problems in the existing center and the fact that it does not meet the parameters for a socio-educational approach for adolescents. The Rapporteur received complaints from family members of adolescents who had been prosecuted and incarcerated, indicating that the inmates had received cruel, inhuman, and degrading treatment and that the investigations were slow and there were apparent irregularities in the face of complaints of mistreatment and torture. The Rapporteur would like to emphasize that those same family members told her that these acts had not been repeated since a change of authorities and staff in the SER facility. Based on all the foregoing, the Rapporteur expresses her deep concern over the serious situation that took place in the SER Center and welcomes the imminent closure of that facility.

Institutionalized Children and Adolescents

The Rapporteur welcomes the significant progress made by the government of Uruguay through the establishment by INAU, in agreement with various civil society organizations, of alternative care methods for children and adolescents. However, she expresses her concern regarding the fact that children and adolescents in institutional settings still represent the majority (70 percent) of the population of children without parental care, and that 45 percent of them are adolescents between the ages of 13 and 17. The fact that there are no specialized courts for children and adolescents is also of concern. The Rapporteur also received complaints regarding the various problems said to arise in the defense of children and adolescents by the General Defender’s Office. The Commissioner noted that “the paradigm of children’s rights is based on ensuring that boys and girls, from a very young age, have a family life in their community in a context of non-violence; without that, and in the face of recurrent institutionalization and the lack of other opportunities, many adolescents are more susceptible to falling into activities that are against the law.”

The Commission calls to mind, along these lines, that in its advisory opinion on the juridical condition of the child, the Inter-American Court has established that “the ultimate objective of protection of children in international instruments is the harmonious development of their personality and the enjoyment of their recognized rights. It is the responsibility of the State to specify the measures it will adopt to foster this development within its own sphere of competence and to support the family in performing its natural function of providing protection to the children who are members of the family.” The Rapporteur notes, therefore, that the State should consider it urgent to prioritize public policies and programs to promote care models that ensure that children can exercise all their rights within the family and in society, rights which are recognized in the American Convention on Human Rights and in the body of laws involving children and adolescents.

In this context, during this visit the Rapporteur presented the IACHR report “The Rights of Boys and Girls to a Family. Alternative Care: Ending Institutionalization in the Americas.” The presentation took place on September 2 in the Conference Hall of the Unión Postal de las Américas (UPAEP), and included the participation of INAU President Javier Salsamendi; UNICEF Representative Paulo Mefalopulos; and Diego Silva and Luis Pedernera, of the Comité de Derechos del Niño Uruguay.

Strengthening of the National Honorary Advisory Council on Childhood and Adolescence to Design a National System for the Promotion and Protection of the Rights of Children and Adolescents

The Rapporteur observes with concern that despite countless successful programs designed to reduce poverty, combat domestic violence and gender-related violence, and strengthen the families who most need support—programs such as “Uruguay Crece Contigo,” which gives priority to early childhood; “Cercanía”; “Conditional Transfers”; and other programs that are worth noting and expanding—the main reasons that children and adolescents end up in the residential institution system and in corrections facilities are still tied to poverty and violence within families and communities. The Rapporteur has observed a lack of sufficient coordination among the different programs and institutions, as well as a lack of productive dialogue among their respective authorities. This Rapporteur recommends that the various authorities in Uruguay strengthen the National Honorary Advisory Council on Childhood and Adolescence and give it the economic means and political legitimacy it needs to further such coordination and move forward in the design of a broad national system for the promotion and protection of the rights of children and adolescents. Such a system should ensure an emphasis on preventing problems through local services that are close to the children and their families and that are geared toward their inclusion, their full and harmonious development, and their active participation, as well as toward overcoming every type of discrimination.

The IACHR Rapporteur appreciates the invitation extended by the Foreign Ministry of Uruguay for her visit and expresses her special thanks to the Uruguayan government authorities for their collaboration. Special thanks to Dr. Gabriel Winter, Deputy Director of the Foreign Ministry Human Rights Office. The Rapporteur on the Rights of the Child also offers her support to the State of Uruguay to provide cooperation, within the scope of her mandate, to continue the reforms needed to ensure a juvenile justice system in line with international standards on this subject and to implement actions conducive to a comprehensive system for the promotion and protection of the rights of children and adolescents, in order to ensure the full respect for and guarantee of all their human rights, which benefits all of society, prevents violence, and strengthens democracy.

A principal, autonomous body of the Organization of American States (OAS), the IACHR derives its mandate from the OAS Charter and the American Convention on Human Rights. The Inter-American Commission has a mandate to promote respect for human rights in the region and acts as a consultative body to the OAS in this area. The Commission is composed of seven independent members who are elected in an individual capacity by the OAS General Assembly and who do not represent their countries of origin or residence.

No. 98/14