Rights of the Child in Argentina - Global network fighting ... · 6 - Constitución de Argentina : art. 75 par. 22 : "Los tratados y concordatos tienen jerarquía superior a las leyes

Rights of the Child in Argentina



The aim of OMCT country reports are to prevent torture

In its reports on children’s rights, OMCT aims to analyse national law in terms of the internationalcommitments that a government has made. For example, in some countries families are not informed when their child is detained and this removes a precious safeguard against abuse. Theabsence of such safeguards facilitates situations where the torture of children can and does oc-cur.

In other words, the reports aim to point out where, often unknowingly, legislation facilitates graveabuses against children.

The legal analysis is supported, where possible, by urgent appeals on the torture of children documented by OMCT. These urgent appeals (OMCT intervenes almost daily on such cases) are thefoundation of all our work.

The reports are not legal semantics for their own sake, but represent, in addition to the urgentactions, another side of our strategy to end torture. The reports include meaningful and feasi-ble recommendations for legal reform aimed at reducing the incidence of child torture.

The reports are presented to the United Nations Committee on the Rights of the Child who use them to analyse how well a country is fulfilling its international commitments with regardsto children. Their recommendations on the issue of torture, drawing from OMCT’s reports, senda strong message from the international community on the need for action to end the tortureof children.

ISBN 2-88477-030-5

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Contents

I. Introduction .................................................................................................................................................................................................... 7

II. International standards ....................................................................................................................................................................... 9

III. Definition of the Child ........................................................................................................................................................................ 10

IV. Discrimination ................................................................................................................................................................................................. 11

4.1 Discrimination against girls .......................................................................................................................................................... 12

4.2 Discrimination against indigenous people ............................................................................................................................. 13

V. Protection from torture and other cruel, inhuman

or degrading treatment or punishment .................................................................................................................................. 15

5.1 Argentina’s legal framework ........................................................................................................................................................ 15

5.2 Practice ......................................................................................................................................................................................................... 17

VI. Unlawful killings ...................................................................................................................................................................................... 19

VII. Protection from other forms of violence ........................................................................................................................... 23

7.1 Violence in the family ........................................................................................................................................................................ 23

7.2 Sexual abuse and exploitation ........................................................................................................................................................ 24

7.3 Child labour and exploitation ...................................................................................................................................................... 26

VIII. Children in conflict with the law .............................................................................................................................................. 29

8.1 Age of criminal responsibility and jurisdiction ................................................................................................................ 29

8.2 Grounds of arrest and detention ................................................................................................................................................ 31

8.3 Conditions of detention .................................................................................................................................................................... 33

IV. Conclusion and recommendations ................................................................................................................................................ 35

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OMCT would like to express its gra-titude to Abuelas Plaza de Mayo,Centro de Estudios Legales ySociales (CELS) and Servicio Paz yJusticia (SERPAJ Argentina) for theirhelp with the research of the pre-sent report.

COMMITTEE ON THE RIGHTS OF THE CHILD31st Session - Geneva, 18 september - 4 October 2002

Researched and written by Sylvain VitéCo-ordinated and edited by Roberta Cecchetti

Director of the publication: Eric Sottas

Report on the implementation of the Convention

on the Rights of the Child by the Argentina Republic

8

Accession onMarch 21,1977Accession on

March 18,1986Accession on

March 18,1976Signed on

June 4, 1986

CRC/C/65/Add.17Ibid. para. 10 Ibid. para. 1

(a)Sources in-

47 UNHCR,Refugee Children inAfrica: Trends andPatterns in theRefugee Populationin Africa Below theAge of 18 Years,2000, Populationand Data Unit.Geneva, 2001.CRC/C/65/Add.17Norwegian

RefugeeCouncil/Global IDPproject,Background paperprepared for themission to Sudan ofthe Senior Inter-Agency Network on

The implementation of the rights of the child,as a specific aspect of the situation of humanrights, cannot be understood without linkingit to a broader political, economic and socialcontext. In Argentina, the current crisis,which results in the impoverishment of adramatic part of the population, affects allhuman rights, including economic, socialand cultural, and civil and political.1 The so-cial unrest caused by the crisis and the grow-ing number of people living or working onthe streets were simultaneously accompa-nied by an augmentation of institutional vi-olence and the stigmatisation of certainsectors of the population, such as “violent ju-veniles” or “illegal immigrants”, as well ascertain areas, such as “popular neighbour-hoods”.2

As children are more vulnerable to the ef-fects of violence than adults and might havelimited capacity to understand, as well as ex-press and defend themselves, they are par-ticularly affected by the current crisis inArgentina and its consequences on the sit-uation of their rights. Since the last reportpresented by Argentina to the Committee on

the Rights of the Child (the Committee), thissituation has worsened and particularly se-rious cases of violations of children’s rights,such as extrajudicial executions, torture andother forms of violence, have been registeredin Argentina.

OMCT welcomes the second periodic reportsubmitted by Argentina to the Committee inaccordance with article 44 (1) b of theConvention on the Rights of the Child(CRC). However, OMCT regrets that this re-port mainly describes legal provisions andproceedings and fails to show how theConvention is implemented in practice.OMCT also regrets that some recommenda-tions made by the Committee during the pre-vious session3 have been overlooked by theArgentinian Government.

OMCT’s alternative report to theCommittee covers the provisions of the CRCwhich fall under the mandate of OMCT,

I. Introduction

1 - See The economic crisis in Argentina: a structural challengeto the enjoyment of all human rights, OMCT urgent appeal,Case ARG 220801.ESCRC.

2 - CELS, Informe sobre la situación de los derechos humanosen Argentina 2001, Buenos Aires, 2001, p. 16ss.

3 - See Concluding observation of the Committee on the Rightsof the Child: Argentina, 15/02/95, CRC/C/15/Add.35.9

namely the right to life, the right to be protected from torture and other cruel, in-human, or degrading treatment or punish-

ment, the rights of children in conflict withthe law, and the right to be protected fromany form of violence and discrimination.

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Argentina ratified the CRC on 29 June 1990and it came into force on 03 January 1991.Despite a recommendation formulated in thelast concluding observations of theCommittee regarding the situation inArgentina4, the government still has not with-drawn its broad reservation on article 21 ofthe CRC.5

Argentina is also a party to other internationalinstruments related to human rights, in par-ticular the International Covenant on Civiland Political Rights and the ConventionAgainst Torture and Other Cruel Inhuman orDegrading Treatment or Punishment.

At a regional level, Argentina is a party to theAmerican Convention on Human Rights("Pact of San Jose"), the Inter-AmericanConvention to Prevent and Punish Torture,the Inter-American Convention on ForcedDisappearance of Persons and the Inter-American Convention on the Prevention,Punishment and Eradication of ViolenceAgainst Women (“Convention of Belem doPara”).

Article 75 paragraph 22 of the ArgentinianConstitution provides that internationaltreaties are hierarchically superior to do-mestic laws. It explicitly specifies that humanrights treaties, including the CRC, have con-stitutional status and must be interpreted ascomplementary to the rights and guaranteesrecognized in the first part of theConstitution.6

However, OMCT deems that the effective sta-tus of the CRC in the domestic legislation stillremains uncertain. In the Ekmekdjián vsSofovich Case, the National Supreme Courtof Justice held that State bodies are bound toapply ratified international treaties wheneverthese treaties include provisions sufficiently

II. International Standards

4 - Concluding observation of the Committee on the Rights of theChild: Argentina, 15/02/95, CRC/C/15/Add.35, par. 8.

5 - “The Argentine Republic enters a reservation to subpara-graphs (b), (c), (d) and (e) of article 21 of the Convention onthe Rights of the Child and declares that those subpara-graphs shall not apply in areas within its jurisdiction be-cause, in its view, before they can be applied a strictmechanism must exist for the legal protection of childrenin matters of inter-country adoption, in order to prevent traf-ficking in and the sale of children”.

6 - Constitución de Argentina : art. 75 par. 22 : "Los tratadosy concordatos tienen jerarquía superior a las leyes. LaDeclaración Americana de los Derechos y Deberes delHombre; (…) la Convención sobre los Derechos del Niño; en las condiciones de su vigencia, tienen jerarquía con-stitucional, no derogan artículo alguno de la primera partede esta Constitución y deben entenderse complementariosde los derechos y garantías por ella reconocidos".11

concrete to make their immediate applicationpossible.7 This jurisprudence implies that theeffective implementation of the CRC mayvary according to the content of each of itsprovisions. Therefore it attributes to the ex-ecutive and judicial bodies of the State an ex-cessive margin of interpretation, whichcreates legal insecurity and delays the ef-fective implementation of the Convention. Forexample, OMCT regrets that articles 37 and40 are ignored by judicial bodies on the ba-sis of this jurisprudence.8

In October 2002, the Centre for legal and so-cial studies (Centro de estudios legales y so-

ciales, CELS) also stated that, despite theadoption of article 75 paragraph 22 in 1994,“at national level, the ratification and poste-rior approbation of the Convention on theRights of the Child only has had a rhetoricalor political impact”.9

As a result, OMCT would recommend to theGovernment of Argentina to give more in-formation on the legal status of the CRC in the domestic legislation and to adopt allnecessary measures to ensure the full im-plementation of its provision at the nationallevel.

Argentina made the following interpretativedeclaration at the time of its ratification ofthe CRC: “Concerning article 1 of the

Convention, the Argentine Republic de-clares that the article must be interpreted tothe effect that a child means every humanbeing from the moment of conception up tothe age of eighteen”.

Under domestic law, this definition may varyaccording to legal fields. For example, theCivil Code defines “minors” as persons un-der 21 years of age.10 However, the age ofmajority may be attained earlier by mar-riage, by court verdict or by consent of those

7 - Corte Suprema de Justicia de la Nación, Fallo, “EkmekdjiánM. A. c. Sofovich G. y otros”, 7 de Julio de 1992.

8 - See Mary Ana Beloff, Niños y adolescentes: Los olvidados desiempre a propósito de la reforma procesal penal introducidapor la ley 23.984, p. 7.

9 - “A nivel nacional, es posible afirmar que la ratificación yposterior aprobación de la Convención Internacional de losDerechos del Niño sólo ha tenido un impacto retórico opolítico”. CELS, Presentación ante el Comité de derechos hu-manos : Cuestiones a considerar en la evaluación del tercerinforme periódico de Argentina en cumplimiento del art. 40del Pacto internacional de derechos civiles y políticos, 2000,Artículo 24 : Derechos del niño.

10 - Código Civil (Ley 340), 25 de septiembre de 1869, art. 126:“Son menores las personas que no hubieren cumplido laedad de veintiún años”.

III. Definition of the Child

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who exercise parents’ authority.11 The CivilCode also provides that an individual mustbe considered as a “minor under the age ofpuberty” (“menor impúber”) until his/her14th birthday and as an “adult minor”(“menor adulto”) from his/her 14th untilhis/her 21st birthday.12 The former has ab-solute incapacity, whereas the latter enjoycapacity as authorized by law.13

According to labour law, children between14 and 18 years of age, who live indepen-dently with the knowledge of their parentsor tutor, have the legal capacity to work.14

Regarding the age of recruitment in thearmed forces, the Law on Voluntary MilitaryService provides that volunteers between 18and 24 years of age must carry out militaryservice. In exceptional circumstances, the Government, with the approval of theNational Congress, is entitled to reintroduceconscription. In such circumstances,Argentinian citizens may be recruited fromthe age of 17 for a maximum of one year.15

IV. DiscriminationOMCT believes that discrimination is one ofthe root causes of torture and other forms ofviolations of human rights. For this reason,it regrets that the State report only deals withthis issue from a legal point of view, whereasdisturbing situations are still in practice.With this regard, OMCT wishes to recallthat, as State party to the Convention,Argentina is bound to treat all children liv-ing in its territory “without discrimination ofany kind, irrespective of the child's or his orher parent's or legal guardian's race, colour,

sex, language, religion, political or otheropinion, national, ethnic or social origin,property, disability, birth or other status”.16

11 - Código Civil, art. 131.12 - Código Civil, art. 127: “Son menores impúberes los que aún

no tuvieren la edad de catorce años cumplidos, y adultoslos que fueren de esta edad hasta los veintiún años cumpli-dos”.

13 - Código Civil, art. 54 and 55. 14 - Ley de Contrato de Trabajo (20 744), 13 de Mayo de 1976,

art. 32 : “Los menores desde los dieciocho (18) años y la mu-jer casada, sin autorización del marido, pueden celebrarcontrato de trabajo. Los mayores de catorce (14) años ymenores de dieciocho (18), que con conocimiento de suspadres o tutores vivan independientemente de ellos, gozande aquella misma capacidad (…)”.

15 - Ley de servicio militar voluntario (24 429), 5 de enero de1995.

16 - Art. 2 par. 1.13

Article 16 of the Constitution of Argentinaestablishes that every inhabitant is equal be-fore the law.17 Reality, however, shows thatdiscrimination still affects various groups ofArgentinian society. OMCT wishes to high-light the situation of girls and of indigenouschildren.

a. Discrimination against girls

Despite the comment already made by theCommittee on this issue in its latest con-cluding observations on Argentina,18 themarriage ages for girls and boys still remaindifferent in Argentinian law. The Civil Codeestablishes that girls under 16, and boys un-der 18 may not marry.19

The differentiation of the age of marriage asit is provided for by the law encourages boys

to be educated up to the age of 18, whilegirls' education can be stopped earlier, im-plying that they are of secondary impor-tance. Dropping out of school or ofprofessional training at an early age has se-rious consequences on the well-being ofgirls and women in terms of, notably, eman-cipation and paid employment. In its lastconcluding observations to Argentina, theUN Committee on the Elimination ofDiscrimination Against Women had ex-pressed its concern “about the fact that therate of unemployment for women (20.3 percent) was five percentage points higher thanthat for men (15.7 per cent)”.20

As a consequence, OMCT would recom-mend that the Argentinian authoritiesamend article 166 of the Civil Code so as tobring the minimum age for marriage for girlsup to 18 and hence avoid the discriminatoryconsequences mentioned above.

OMCT also regrets that the State did notadopt a gender specific perspective in its re-port. Concern has been raised about the highincidence of violence against women andgirls in Argentina, including rape, domes-tic violence, sexual harassment, exploitationand other manifestations of discriminationin both the public and private sector.21

17 - Constitución nacional, art. 16: “La Nación Argentina no ad-mite prerrogativas de sangre, ni de nacimiento: no hay enella fueros personales ni títulos de nobleza. Todos sus habi-tantes son iguales ante la ley, y admisibles en los empleossin otra condición que la idoneidad. La igualdad es la basedel impuesto y de las cargas públicas”.

18 - Concluding observation of the Committee on the Rights of theChild: Argentina, 15/02/95, CRC/C/15/Add.35, par. 10.

19 - Código Civil, art. 166 : “Son impedimentos para contraermatrimonio: (…) 5. Tener la mujer menos de dieciseis añosy el hombre menos de dieciocho años; (…)”.

20 - Concluding observations of the Committee on the Eliminationof Discrimination Against Women : Argentina, 12/08/97,A/52/38/Rev.1, PartII, par. 301.

21 - See Concluding observations of the Human RightsCommittee: Argentina, 03/11/2000, CCPR/CO/70/ARG, par.15, Concluding observations of the Committee on theElimination of Discrimination Against Women: Argentina,12/08/97, A/52/38/Rev.1, Part. II, par. 299. 14

However, as noted by the UN Human RightsCommittee, information on these matters isnot systematically maintained, women havea low awareness of their rights and the reme-dies available to them, and complaints arenot being adequately dealt with.22

OMCT would recommend that reliable dataon violence and discrimination affectinggirls be systematically collected and that in-formation campaigns be undertaken to pro-mote awareness among them of their rightsand the remedies available to them.

b. Discrimination against indigenouspeople

OMCT is concerned about discrimination af-fecting indigenous peoples, including chil-dren. In its April 2001 Report on Argentina,the UN Committee on the Elimination ofRacial Discrimination had noted that “theterritories in which indigenous peoples havesettled coincide with the areas with the high-est index of unmet basic needs, and that thepoverty and unemployment indices amongindigenous populations and other vulnera-ble groups have risen as a result of the eco-nomic crisis”.23

In addition to this general consideration,OMCT wishes to emphasize the particularsituation of the Mapuche community, whosemembers, especially children, seriously suf-fer from the gradual contamination of thewater tables in their region. The Mapuchecommunity is settled in the Loma de la Latazone, in the area of Neuquén. This regioncontains the most important gas andpetroleum deposits in South America.According to reliable information receivedby OMCT, the REPSOL-YPF company,which is exploiting these resources, is al-legedly responsible for the contaminationand thus the poisoning which affects thecommunity.24

A study carried out by the under-secretaryfor Health in Neuquén indicates that theMapuche living in the Loma de la Lata re-gion, particularly children and elderly peo-ple, are the victims of a highconcentration of heavy metal, mainly lead,in their blood and their urine. This is al-legedly due to the fact that drinking water,plant matter and animals are all contami-nated. As a result, children suffer from dif-ficulties of concentration, progressive loss of

22 - Concluding observations of the Human Rights Committee:Argentina, 03/11/2000, CCPR/CO/70/ARG, par. 15.

23 - Concluding observations of the Committee on theElimination of Racial Discrimination: Argentina, 27/04/2001, CERD/C/304/Add.112, par. 9.

24 - See OMCT, Child Concern, Case ARG 261001.EE/ESCRC.15

eyesight, painful joints and kidney prob-lems.

The response of the Government has beenso far inadequate. The Argentine justice sys-tem has ordered the Neuquén government toprovide a daily supply of 250 litres of non-contaminated water to each member of thecommunity. However, OMCT deems that thisresponse is largely incomplete, since it onlyfocuses on the consequences of the con-tamination, and does not address the sourceof the problem. In addition, the State inter-vention remains partially theoretical, sincethe members of the Mapuche community,according to the information received byOMCT, never received their full entitlementof water.

OMCT regrets that the State report does notaddress the situation of indigenous childrenin Argentina in general, and of the Mapuchecommunity in particular, and would there-fore urge the government to supply addi-tional information on this issue.

OMCT would call on the ArgentinianGovernment to take all the necessary mea-sures so as to guarantee the physical andpsychological integrity of the Mapuche chil-dren, bearing in mind that these children areentitled to the application of the rights enshrined in the Convention without anydiscrimination, in particular the rights tohealth, to survival and to life.

22 - Concluding observations of the Human Rights Committee:Argentina, 03/11/2000, CCPR/CO/70/ARG, par. 15.

23 - Concluding observations of the Committee on the Eliminationof Racial Discrimination: Argentina, 27/04/2001, CERD/ C/304/Add.112, par. 9.

24 - See OMCT, Child Concern, Case ARG 261001.EE/ESCRC. 16

OMCT believes that the Government report’shandling of the issue of torture and otherforms of ill-treatment is insufficient. The re-port provides very little information on defacto cases of torture or ill-treatment of chil-dren and de jure protection. Thus, OMCTbelieves that the Committee should be pro-vided with more information thereon.

a. Argentina’s legal framework

Article 18 of the Argentinian Constitutionbroadly stipulates that death penalty for po-litical reasons, all forms of torment andwhipping remain abolished.25

Torture is explicitly prohibited by article 144paragraph 3 of the Criminal Code, whichprovides that the state agent, who imposesany kind of torture to people who are legit-imately or illegitimately deprived of theirliberty, shall be sentenced to 25 years ofseclusion or imprisonment and to absoluteand perpetual barring from public office.26

In this context, torture includes not only

physical torment, but also the imposition ofpsychological suffering, when such harmsare sufficiently serious.27

OMCT welcomes this definition which hasbroader contents than the definition pro-vided by article 1 of the UN ConventionAgainst Torture. It thus allows better pro-tection to victims of torture.28 In particular,it does not require that the perpetrator actwith a specific purpose. On the contrary, itexplicitly provides that a state agent may beheld responsible for failing to prevent or de-nounce acts of torture. Furthermore, article144 specifically states that it is not neces-sary that the victim be legally under the con-trol of the state agent, since a actual powerover the victim is sufficient to imply the re-sponsibility of the perpetrator. Finally, theprohibition of torture is not limited to acts

V. Protection from Torture and Other Cruel, Inhuman orDegrading Treatment or Punishment

25 - Consitución, art. 18 : “(…) Quedan abolidos para siemprela pena de muerte por causas políticas, toda especie detormento y los azotes (…) ".

26 - Código penal, art. 144 tercero (1): “Será reprimido conreclusión o prisión de ocho a veinticinco años e inhabil-itación absoluta y perpetua el funcionario público que im-pusiere a personas, legítima o ilegítimamente privadas desu libertad, cualquier clase de tortura (…) ".

27 - Código penal, art. 144 tercero (3): " Por tortura se entenderáno solamente los tormentos físicos, sino también la im-posición de sufrimientos psíquicos, cuando éstos tengangravedad suficiente ".

28 - Código penal, art. 144 cuarto.17

committed by state agents, but also extendsto private actors.29

In the case of torture leading to death, thesentence provided is life imprisonment.30

In less serious cases, such as degradingtreatment or unlawful coercion (“severidades,vejaciones, o apremios ilegales”), the sen-

tence may vary between one to six years ofimprisonment and special barring from pub-lic office for twice as much.31

As pointed out by the UN Committee againstTorture, the Code of Criminal Procedure alsocontains provisions whose implementationshould help to prevent the practice of tor-ture.32 Among the most important ones, ar-ticle 184 strictly describes situations inwhich the police may detain persons with-out a court order, in particular limiting suchpossibilities to a time period of six hours. Inthese cases, a doctor must check the psy-chological and physical state of the de-tainee.33 The same provision also prohibitsthe police from taking a statement from aperson who has been charged.34 Article 205also limits the length of incommunicado de-tention to 72 hours and stipulates that un-der no circumstances shall such detentionprevent the detainee from communicatingwith her/his defence counsel before any pro-ceeding requiring her/his personal inter-vention.35

Regarding the last provision, OMCT deemsthat such measure is not in conformity withchildren’s rights. OMCT considers that in-communicado detention, especially when itcan be extended to such a duration, con-

29 - Código penal, art. 144 tercero (1): “(…) Es indiferente quela víctima se encuentre jurídicamente a cargo del fun-cionario, bastando que éste tenga sobre aquélla poder de he-cho. Igual pena se impondrá a particulares que ejecutarenlos hechos descriptos”.

30 - Código penal, art. 144 tercero (2).31 - Código penal, art. 144 bis.32 - Concluding observation of the Committee against Torture:

Argentina, 21/11/97, A/53/44, par. 58.33 - Código Processal Penal, art. 184: " Los funcionarios de la

policía o de las fuerzas de seguridad tendrán las siguientesatribuciones: (…) (8)Aprehender a los presuntos culpablesen los casos y formas que este Código autoriza y disponersu incomunicación cuando concurran los requisitos delartículo 205, por un término máximo de seis (6) horas, queno podrá prolongarse por ningún motivo sin orden judi-cial.En tales supuestos, deberá practicarse un informemédico a efectos de verificar el estado psicofísico de la per-sona al momento de su aprehensión ".

34 - Código Processal Penal, art. 184: " Los funcionarios de lapolicía o de las fuerzas de seguridad tendrán las siguientesatribuciones: (…) (9) Usar de la fuerza pública en la medidade la necesidad. No podrán recibir declaración al imputado".

35 - Código Processal Penal, art. 205: " El juez podrá decretarla incomunicación del detenido por un término no mayor decuarenta y ocho (48) horas, prorrogable por otras veinticu-atro (24) mediante auto fundado, cuando existan motivospara temer que se pondrá de acuerdo con terceros u ob-staculizará de otro modo la investigación. Cuando la au-toridad policial haya ejercitado la facultad que le confiereel inciso 8) del artículo 184, el juez sólo podrá prolongar laincomunicación hasta completar un máximo de setenta y dos(72) horas. En ningún caso la incomunicación del detenidoimpedirá que éste se comunique con su defensor inmedi-atamente antes de comenzar su declaración o antes decualquier acto que requiera su intervención personal ". 18

tradicts the right of every child deprived ofliberty to be treated “in a manner whichtakes into account the needs of persons ofhis or her age”36, even though some possi-bility to communicate with her or his de-fence counsel is allowed. Furthermore, sucha measure also infringes on the right of achild deprived of liberty to maintain contactwith her or his family.37

Therefore, OMCT would recommend to theGovernment to amend article 205 of theCode of Criminal Procedure in order to ensure that children not be kept in incom-municado detention under any circum-stances.

b. Practice

Torture and other forms of ill-treatment arestill frequent in Argentina, especially in po-lice stations of the Buenos Aires area.38 InJuly 2001, Mario Coriolano, the ChiefDefence Attorney attached to the CriminalAppeals Court of the Buenos Aires Province,issued a report presenting 602 cases of tor-ture and other forms of ill-treatment perpe-trated in jails and police stations in theprovince between March 2000 and June2001. Such practice, applied both to adults

and children, included beatings, hoodingwith plastic bags, and the application ofelectric shocks on sensitive parts of thebody. Following the presentation of this report, three federal judges condemned thegeneral and systematic practice of tortureperpetrated in all its forms during investi-gation and detention, especially in theBuenos Aires Province.

Similarly, in July 2001, Carlos EduardoBigalli, the Child Counsellor (Asesor deniños) of the San Isidro JudicialDepartment, Buenos Aires Province, pre-sented a report on torture and other forms ofill treatment to the Supreme Court of theprovince. Between July 1998 and July 2001,he established that torture and other formsof ill-treatment were systematically perpe-trated against children in various police sta-tions and institutions run by the ProvinceCouncil of the Minor (Consejo provincial delmenor). Such treatment consisted of beat-ings, including the use of guns or sticks, im-prisonment with adults, lack of minimumadequate food, administration of psycho-medicine, and obligation to sleep on theground. A girl also filed a complaint for arape attempt.

36 - CRC, art. 37 (c).37 - Ibid.38 - Human Rights Watch, World Report 2002, Argentina.19

In addition to these practices, the victimswere threatened, in order to prevent themfrom informing their parents, the medicalstaff of the police station or judicial au-thorities. During the period under review,Carlos Bigalli recorded 576 cases of tortureand other ill-treatment of children in policestations. He also established that the num-ber of complaints had significantly increasedfrom the year 2000.39 Following this report,the Supreme Court decided to open a spe-cial file to register complaints of abuse per-petrated against children.40

Whereas OMCT welcomes investigationsmade by Argentinian authorities on thosecases, it wishes to express its deep concernabout the seriousness of this situation andto emphasize that some sectors of the Statestill do not fully cooperate to clarify the cir-cumstances of these violations of the rightsof the child and to identify those responsi-ble. In particular, it has been demonstratedthat judiciary investigations are often im-peded by the attitude of the police. In its lastreport on Argentina, the UN Committeeagainst Torture had estimated that the in-formation received on a number of cases of

torture was “indicative not only of a lack ofeffective and prompt police cooperation injudicial inquiries into complaints of tortureand ill-treatment, but also of impedimentsto those inquiries denoting a relatively sys-tematic modus operandi, rather than occa-sional failure to cooperate faithfully with theinquiries”.41

Hence, OMCT would ask the Government ofArgentina to ensure that prosecutors andjudges, with the support of the police, dili-gently investigate all allegations of tortureand ill-treatment made by child detaineesand adopt adequate sanctions whenever nec-essary.

As a preventive measure, OMCT would alsorecommend that the Government ensure thatindependent and qualified medical person-nel be required to carry out examinations ofchild detainees in order to identify possiblecases of physical torture or ill-treatment, as well as psychological trauma potentiallyattributable to mental torture or ill-treat-ment.

OMCT would also recommend that theGovernment implement effective proceduresfor internal monitoring and disciplining ofthe behaviour of public officials, including39 - SERPAJ-Argentina, Recopilación de denuncias efectuadas

por el Defensor del Departamento Judicial de San Isidro,Provincia de Buenos Aires, Noviembre 2001.

40 - CELS, Informe sobre la situación de los derechos humanosen Argentina 2001, Buenos Aires, 2001, p. 93.

41 - Concluding observations of the Committee against Torture:Argentina, 21/11/97. A/53/44, par. 52-69, par. 63. 20

sanctions for failure to provide children witha lawyer or to inform them of their right tonotify their next of kin of their detention.

Furthermore, OMCT would request theGovernment to elaborate and implementpreventive programmes, in particular by ensuring education and training for all per-sonnel involved in the custody, interrogationor treatment of any child subjected to anyform of arrest, detention or imprisonment.As prescribed in article 85 of the UN Rulesfor the Protection of Juveniles Deprived of

their Liberty, this should include specifictraining in child psychology, child welfareand international standards and norms ofhuman rights and the rights of the child.

Finally, OMCT would recommend that vic-tims of torture obtain fair and adequate compensation. Child victims must also beentitled to measures promoting their phys-ical and psychological recovery and socialreintegration in an environment which fos-ters their health, self-respect and dignity.

VI. Unlawful KillingsAlthough no official statistics on police vi-olence are available in Argentina, numerouscases of unlawful killings have beenrecorded within the last few years.42 Thesecases included extrajudicial executions of-ficially presented as armed confrontations,the indiscriminate use of force leading to thedeath of bystanders during armed con-frontations, death in police custody undersuspicious circumstances, frequently fol-lowing acts of torture, and excessive use offorce during demonstration. These practicesmostly occurred in the main cities of

Argentina, the victims being both adults andchildren.

In October 2001, the Buenos Aires provin-cial Supreme Court recognized that theBuenos Aires provincial police arrangedarmed confrontations in order to hide the ex-ecution of at least 60 children between 1999and 2000. These children, the majority ofwhom were between 14 and 17 years-old,had presented complaints against the police

42 - See for example, CELS and Human Rights Watch,Exacerbating Insecurity: Police Brutality in Argentina, 1998,238 p. SERPAJ-Argentina, La violencia institucional extremacomo forma de regulación social, Informe sobre los derechosdel niño en Argentina, 2002, p. 23.21

for ill-treatment. Some of them were founddead in the jurisdiction of the police stationagainst which they had filed their com-plaint.43

These events illustrate a general trend to-wards increasing institutional violence inArgentina, in particular in the Gran BuenosAires area. In a report covering the period1983/1998, the Coordinadora Contra laRepresión Policial e Institucional (COR-REPI) counted the deaths of 470 peoplekilled by members of the State securityforces in situations where they did not con-stitute threats to public order.44 Most of thevictims were children, since their averageage was 17 years old. According to COR-REPI, the majority of them belonged to themost disadvantaged sectors of the society.Only 10% of the cases had been solved bythe judicial system.

The victims had been killed in various ar-eas under the responsibilities of different ju-risdictions. Therefore, the report showed thatthese killings were not due to the initiativeof a few isolated police agents, but were theconsequence of a common modality of theprovince police.45

As examples, OMCT wishes to mentionsome cases collected by CELS during thisperiod. On 2 April 1997, Nora González (16)was killed in a hotel, in Sáenz Peña, ElChaco Province, by Daniel Randazzo, a subofficer of the local police. The murderer wasthen helped by another state agent to trans-fer the body of the victim to the open coun-try and to erase the traces of their crime inthe hotel.46

On 2 July 1997, a sub officer of the Santiagodel Estero Province police killed José LuisGonzález (15) and seriously harmedFederico Saracco (16). The victims and threeother boys had taken a few posters in a shop.The police officer followed them and shot atthem several times. An autopsy performedon the body of José Luis showed that he hadbeen shot from a distance of 5 meters as hewas kneeling down on the ground. Variouswitnesses confirmed these facts.47

43 - Suprema Corte de la Provincia de Buenos Aires, Acordada3012, 24 de Octubre 2001. See Equipo Nikzor, La SupremaCorte de la provincia de Buenos Aires reconoció que la policíabonaerense fraguó tiroteos para ocultar la muerte de 60menores de edad, Información y solidaridad urgente, 30 oc-tubre 2001 y Assemblea permanente por los derechos hu-manos (APDH), Reclamo de la APDH por violencia contraniños y adolescentes en la provincia de Buenos Aires, 2001.

44 - Coordinadora contra la represión policial e institucional(CORREPI), Archivos de casos 1983-1998, Recopilación demuertes de personas a manos las fuerzas de seguridad enArgentina,http://www.derechos.org/correpi/muertes.html.

45 - See SERPAJ-Argentina, Recopilación de denuncias efec-tuadas por el Defensor del Departamento Judicial de SanIsidro, Provincia de Buenos Aires, Noviembre 2001.


47 - Ibid., 1998, p. 86. 22

On 3 September 1997, Damián Villalba,died in the police sub-station 20 of RosarioCity. The boy’s father was informed by per-sonnel of the sub-station that his son hangedhimself with his belt. A forensic examina-tion showed that Damián died by asphyxiaand had a bruise as large as a fist on theforehead, thus casting doubts on the officialversion.48

On 28 September 1997, members of the po-lice station 2 of the Concordia city, EntreRios Province, arrested and detained Gastón Lescano (17). On 2 October 1997,the boy was found dead in an open ground.49

On 22 May 1998, Hector Peñalba, a sub of-ficer of the Buenos Aires Province police,shot at Diego Pavón (16), and killed him.The policeman argued that the victim wasarmed and that his death resulted from anarmed confrontation. However, this fact wasnever proved. The investigation was affectedby several irregularities. In particular, it wascarried out by the investigation brigade ofthe same area, and not by the relevant ju-risdiction. In addition, the sub officerPeñalba kept working in the same neigh-bourhood where the boy had been killed. Asa result, various witnesses refused to give

testimonies, fearing retaliation. The case waseventually dismissed.50

On 16 December 1998, Pedro MiguelAlmaraz, a member of the Buenos AiresProvince, searched four people in the street.As one of them, Daniel Bravo (16), began totalk, the policeman gave him a strong blowon the back with the butt of his gun. Danielfell and began to breathe heavily, but the po-liceman did not assist him and left. The vic-tim died a while later.51

According to data collected by CELS, thenumber of civilians killed by members of thesecurity forces in 1999 in the Gran BuenosAires area showed an augmentation of 100%, whereas the number of state agents killedwas 23 % higher. OMCT is particularly con-cerned by the fact that a high percentage ofthe civilian victims, 26 percent, were chil-dren.52 In the following years, the quantityof victims stayed at a high level. Accordingto CELS, in 2001, the security forces killed

48 - Ibid., 1998, p. 88.49 - Ibid., 1998, p. 89.50 - CELS, Informe sobre la situación de los derechos humanos

en Argentina 1998, Buenos Aires, 1999.51 - Ibid.52 - CELS, Informe sobre muertes en enfrentamientos en el Gran

Buenos Aires, 30.03.2001,http://www.cels.org.ar/background/archivos/info2001/info_36_20010330.htm23

61 people, including 3 children, in the cityof Buenos Aires, and 183 people, including31 children, in the Gran Buenos Airesarea.53

OMCT regrets that the Government reportdoes not give any information on the grow-ing practice of unlawful killings affectingchildren, in particular in the Gran BuenosAires area.

OMCT would recommend to theGovernment of Argentina not to leave thoseresponsible for such practice unpunished.Accordingly, OMCT would urge the gov-ernment to guarantee a thorough investiga-

tion into each case of unlawful killings, inorder to identify those responsible, bringthem before a civil competent and impartialtribunal and apply the appropriate penal,civil and/or administrative sanctions.

In order to put an end to this problem,OMCT would also recommend to theGovernment to elaborate and implementpreventive programmes, in particular by en-suring education and training for officials inthe armed forces. This should include spe-cific training on international standards onthe rights of the child, as well as on the useof force.

53 - CELS, Informe sobre la situación de los derechos humanosen Argentina 2001, Buenos Aires, 2001, p. 115, 123 and124 24

Article 19 of the CRC requires children’sprotection “(…) from all forms of physicalor mental violence, injury or abuse, neglector negligent treatment, maltreatment or ex-ploitation, including sexual abuse, while inthe care of parent(s), legal guardian(s) or anyother person who has the care of the child”.

7.1 Violence in the family

Argentinian law 24.417 on ProtectionAgainst Violence in the Family provides thatany victim of physical or psychological ill-treatment by any member of her/his familyis allowed to denounce the situation beforea civil judge and solicit precautionary mea-sures.54 These measures include the ex-clusion of the perpetrator from the home,prohibition of the perpetrator’s access to thehome, the reintegration of the victim into thehome and the adoption of adequate mea-sures regarding food, custody, and commu-nication with the children.55 Child victimsare specifically allowed to directly informthe general attorney. Education and social

services, health professionals and any pub-lic agent concerned by a case of violenceagainst a child in the family are also obligedto present a complaint.56

OMCT welcomes the provisions of this law,which respond to the recommendation madeby the Committee in its last concluding ob-servations regarding the situation of therights of the child in Argentina.57 However,OMCT regrets that this legislation seemsonly aimed at preventing the recurrence of violence against children in the familyand does not provide for the sanction of the perpetrator. Accordingly, OMCTwould recommend that the State give moreinformation thereon.

OMCT also welcomes the creation of theOffice of Integral Assistance for the Victimof Offences (Oficina de Asistencia Integral ala Victima del Delito, OFAVI), which pro-

VII. Protection from other forms of violence

54 - Ley 24.417 de Protección contra la violencia familiar, art.1.

55 - Ibid., art. 4.56 - Ibid., art. 2.57 - Concluding observation of the Committee on the Rights of

the Child: Argentina, 15/02/95, CRC/C/15/Add.35, par. 20:“The Committee suggests that the State party considers thepossibility of introducing more effective legislation and fol-low-up mechanisms to prevent violence within the familyin the spirit of article 19”.25

poses, among other things, medical assis-tance to victims of violence in the family,child nurseries and homes for single moth-ers. However, OMCT regrets that the Statereport does not give concrete information onthe implementation of this programme.

7.2 Sexual abuse and exploitation

The CRC provides that “States Parties un-dertake to protect the child from all forms ofsexual exploitation and sexual abuse. Forthese purposes, States Parties shall in par-ticular take all appropriate national, bilat-eral and multilateral measures to prevent:

a) The inducement or coercion of a child toengage in any unlawful sexual activity;

b) The exploitative use of children in pros-titution or other unlawful sexual prac-tices;

c) The exploitative use of children in porno-graphic performances and materials”.

Argentinian legislation protects childrenagainst sexual abuse. The Penal Code provides for sentences of up to 4 years of imprisonment when a victim of sexual abuseis less than 13 years of age or when she/hewas not able to freely consent to the act. Thesentence may be extended up to 10 yearswhen the abuse is “seriously outrageous”,and up to 15 years in case of “physical pen-etration”.58 In case of aggravating circum-stances, such as causing serious physical orpsychological damage to the victim, the sen-tence may be extended to 20 years.59

Moreover, the Penal Code prohibits the pro-motion or facilitation of child prostitution,even when the victim agrees. If the victim isa minor of less than 13 years, the maximumsentence provided is 15 years of imprison-ment. If he/she is a minor of less than 18years, it is 10 years.60

The Penal Code also deals with child traf-ficking with the purpose of prostitution.When the victim is a minor of less than 13years, the maximum sentence is 15 years ofimprisonment. When he/she is a minor of lesthan 18 years, it is 10 years of imprison-

58 - Código penal, art. 119 par. 1, 2 y 3: “Será reprimido conreclusión o prisión de seis meses a cuatro años el queabusare sexualmente de persona de uno u otro sexo cuando,ésta fuera menor de trece años (…).La pena será de cuatro a diez años de reclusión o prisióncuando el abuso por su duración o circunstancias de su re-alización, hubiere configurado un sometimiento sexualgravemente ultrajante para la víctima. La pena será de seis a quince años de reclusión o prisióncuando mediando las circunstancias del primer párrafo hu-biere acceso carnal por cualquier vía”.

59 - Código penal, art. 119 par. 4.60 - Código penal, art. 125 bis. 26

ment. In case of aggravating circumstances,such as the use of intimidation or coercion,the sentence may be extended up to 15years.61

Finally, the Penal Code punishes the pro-duction, publication or distribution of porno-graphic images showing minors under 18years, as well as the organisation of porno-graphic performances involving children.62

Despite this set of legislation, sexual vio-lence perpetrated against children inArgentina remains an issue of particularconcern. Although there are no detailedstatistics on this problem, a general inves-tigation carried out by UNICEF-Argentinaon commercial sexual exploitation of chil-dren has shown that “the presence of chil-dren and youth in the sexual offer networkcannot be considered as isolated nor of lit-tle significance, but as usual”.63 The samesource also concluded that this is not a re-gional or local problem, but a generalizedone.64

This investigation also confirmed that childprostitution takes place both in closed(brothels, clubs, saunas etc.) and open (dis-cotheques, bars, etc.) places or on the street.The majority of children are integrated in

the network of commercial sexual exploita-tion between 12 and 16 years old, but therewere cases of exploited children as young as8 years old.65

Despite the seriousness of the situation, thereaction of the State is largely insufficient.Very few cases of sexual exploitation of chil-dren are brought to criminal courts andmany judiciary agents admit that they re-ceive little information on this issue from thepolice.66 In addition, State institutions,which are aimed at protecting child victimsof sexual exploitation, are not adapted to theneeds of these children either. Due to theirinternal organisation, which is similar inmany cases to prison conditions, these in-stitutions, tend to victimize the children,rather than protect them. Furthermore, insome cases, there were allegations of ill-treatment and sexual abuse within the in-stitutions themselves. As a result, manychildren prefer avoiding any contact withthem.67

61 - Código penal, art. 127 bis. 62 - Código penal, art. 128.63 - " La presencia de niñas, niños o adolescentes en circuitos

de oferta sexual no puede calificarse ni de aislada ni depoco significativa, sino de habitual " (OMCT’s translation).Silvia Chejter, La niñez prostituida: Estudio sobre ex-plotación sexual comercial infantil en la Argentina,UNICEF, Oficina de Argentina, 2001, p. 33.

64 - Ibid.65 - Ibid., p. 37.66 - Ibid., p. 193 and 200.67 - Ibid., p. 233.27

It is true that in 1993 the National Councilfor Children and the Family (Consejo na-cional del menor y la familia), a decentral-ized body of the federal administration,created a specific programme to attend tochildren exploited by adults in sexual, beg-ging, working or illegal activities.However, OMCT regrets that the State reportdoes not give concrete information on theimplementation of this programme, in par-ticular on the issue of sexual violence. Forexample, the State explains that one of themain tasks of the programme is the collec-tion of cases in order to perform a study onthe modalities of child exploitation, theadults involved and the child victims.However, the State does not say if this studyhas been carried out and, if so, what its re-sults are.

Therefore, OMCT would call on theGovernment of Argentina to collect relevantand complete data on sexual violenceagainst and exploitation of children in orderto formulate preventive policies and seek in-ternational assistance in this regard.

OMCT also would urge the Government ofArgentina to adopt and implement a crim-inal policy which seeks to investigate and

punish those responsible for sexual violenceagainst and exploitation of children and toreintegrate the child victims, rather than vic-timize them.

7.3 Child labour and exploitation

In addition to article 19 of the CRC alreadymentioned, which protects childrenagainst any form of violence, article 32 para-graph 1 specifically recognizes “the right ofthe child to be protected from economic ex-ploitation and from performing any work thatis likely to be hazardous or to interfere withthe child's education, or to be harmful to thechild's health or physical, mental, spiritual,moral or social development”. For this pur-pose, art. 32 par. 2 requires States Partiesto “take legislative, administrative, socialand educational measures to ensure the im-plementation of the present article (…)”.

The Argentinian Law on Work Contract pro-vides that the minimum age for admission toemployment is 14 years old.68 The tutelaryjudge may grant exceptional authorization,when the child is occupied in her/his ownfamily enterprise or when her/his work is indispensable for her/his own or her/his

68 - Ley 20.744 Ley de contrato de trabajo, 13 de Mayo de1976, art. 187 and 189. 28

family’s subsistence. In any case, the tute-lary judge must be sure that the child willnot be employed in hazardous or dangerousactivities and that her/his minimum edu-cation will not be affected.69 TheArgentinian law on mining also allows ten-year-old children to works in mines.70

In this regard, OMCT wishes to recall thatILO Convention 138, to which Argentina isa party, provides that the minimum age foradmission to employment must not be lessthan the age of completion of compulsoryschooling and, in any case, must not be lessthan 15 years.71 The same instrument addsthat the minimum age to an employmentwhich is likely to jeopardise the health,safety or morals of children must not be lessthan 18 years.72

The Law on Work Contract also prohibitsemploying a child more than 6 hours a dayand 36 hours a week. The administrative au-thority may grant an exceptional authoriza-tion for children older than 16 years old. Inthis case, the limits are 8 hours a day and 48hours a week. Child night labour is also for-bidden.73

In practice, it has been demonstrated thatthese safeguards are frequently not re-

spected. In a report on child labour pub-lished in 2001, the Assemblea permanentepor los derechos humanos (APDH) presentedthe results of a study on the consequencesof the economic crisis on child labour inArgentina.74 Due to the increasing povertyof Argentinian families, more and more chil-dren are obliged to work in precarious andhazardous conditions in order to contributeto the survival of their families. In particu-lar, a great number of children spend theirtime looking for recyclable objects in rub-bish dumps. Then these objects are sold tobe reintroduced as inputs into the economicprocess. According to APDH, around 200000 children are involved in this activity inthe sole area of Gran Buenos Aires.

Due to the hard conditions of this work,which usually takes place at night, childrendo not have the energy necessary to go toschool in the morning. As a result, most ofthem prefer dropping out of school. In ad-dition, the unsanitary conditions in which

69 - Ibid., art. 189.70 - Ley 1.919, Código de minería, 21 de Mayo de 1997, art.

239 : " No debe emplearse en las minas niños menores de10 años, ni ocuparse en los trabajos internos niños im-púberes ni mujeres ".

71 - ILO Convention 138 concerning minimum age for admis-sion to employment, 19 June 1976, art. 2 par. 3.

72 - Art. 3 par. 1.73 - Ley 20.744 Ley de contrato de trabajo, 13 de Mayo de

1976, art. 190.74 - See a summary of the main conclusions in Serpaj-

Argentina, “Precariedad laboral, marginalidad y trabajoinfantil”, Informe sobre los derechos del niño en Argentina,Anexo I.29

they carry out their activities are very harm-ful to their health. Around 60 diseases com-ing from contacts with the rubbish havebeen identified. These include skin diseases,different types of diarrhoeas, deformities,and cancer.

An other issue of concern related to work-ing conditions is the development of clan-destine sweatshops involving children. Inher Report 2001, the Special Rapporteur onthe sale of children, child prostitution andchild pornography denounced that 56Bolivian children and young persons agedbetween 9 and 20 years had been discoveredby the Argentinian police. They were heldin captivity and forced to work in conditionsof slavery. They were kept under armedguard in appalling conditions and allowedto eat only once a day and shower once aweek. The children had been illegallybrought into Argentina, hidden in trucks andsedated. Police had searched for them fortwo months around La Matanza area ofBuenos Aires, and had eventually foundthem working in four clandestine sweat-shops.75 According to the President of theAsociaciones Civiles Bolivianas inArgentina, similar situations are constantlybeing reported and there are many more

clandestine sweatshops in the area.76

OMCT is deeply preoccupied by the situa-tion of working children in Argentina, whichhas recently been aggravated with the de-velopment of the economic crisis. For thisreason, OMCT wishes to emphasize the par-ticular need to implement strict legal safe-guards in order to protect children fromexploitation and dangerous or hazardous em-ployment.

OMCT would recommend to theArgentinian State to adapt its child labourlaws to international standards, in particu-lar to ILO Convention 138, by establishing,as a general rule, that the minimum age foradmission to employment be 15 years, andthat it be raised to 18 years in case of em-ployment, such as mining, that is likely tojeopardise the health, safety or morals ofchildren.

OMCT would also recommend that the Statecollect reliable and complete data on childlabour in Argentina in order to set up aglobal policy aimed at fully implementingthe requirement of article 32 of the CRC.

75 - Report of the Special Rapporteur on the sale of children, childprostitution and child pornography, Ms. Ofelia Calcetas-Santos, E/CN.4/2001/78, 25 January 2001, par. 21 s.

76 - Ibid., par. 23. 30

Argentinian law applicable to children isdangerously ambiguous, since it does notclearly distinguish legal treatment providedto children in conflict with the law on theone hand, and protection measures appli-cable to child victims of offences or of socio-economical precariousness on the otherhand. In both cases, it allows for coercive in-tervention decided by criminal jurisdictionson the basis of undetermined legal cate-gories.

This situation, however, is currently underdebate in the parliament. A draft law on thelegal regime applicable to minors under 18years in conflict with criminal law was pre-sented to the Senate at the end of the year2000.77 Among various innovations, thisproject proposes a clear distinction betweenchild victims and child offenders.78 Anotherdraft law on the global protection of chil-dren’s rights also clearly prohibits treatingchildren suffering from poverty or lackingfamily as delinquents.79

8.1 Age of criminal responsibilityand jurisdiction

The Criminal Regime of Minority estab-lishes the minimum age of criminal re-sponsibility at 16 years.80 Under this limit,children may not be charged under any circumstances. The same rule applies to mi-nors under 18 years in case of misde-meanours which are punished by less thantwo years of deprivation of liberty, a fine orbarring from public office.

Between 16 and 18 years, a child is subjectto relative imputation. This means thatshe/he is subject to tutelary treatment for atleast one year. According to the result of thetreatment, the judge may then decide to con-demn the accused, reducing the sanction

77 - Régimen Legal Aplicable a las Personas Menores de DieciochoAños Infractoras a la Ley Pena, Proyecto de ley 320/00.


79 - Políticas de Protección Integral de los Derechos de los Niños,Niñas y Adolescentes, Proyecto de ley 2321/00, art. 18.

80 - Régimen Penal de la Minoridad, Ley 22 278/22803, art. 1.

VIII. Children in Conflict with the Law

31

normally applied to adults for the same of-fence, or to acquit her/him.81

The Criminal Code of Procedure establishestwo specific jurisdictions for children. Thegeneral jurisdiction for offences committedby persons under 18 years belongs to thejudge for minors. When the offence is pun-ished with a sentence of more than threeyears of deprivation of liberty, the Tribunalfor Minors is competent.82

The criminal majority is fixed at 18 years.From this age, the perpetrator is subject tothe general criminal law.83 The only ex-ception to this principle provides that a sen-

tence of deprivation of liberty must be car-ried out in specialized institutions when theconvicted person is between 18 and 21 yearsold.

OMCT notes with satisfaction that this leg-islation is compatible with article 40 (3) ofthe CRC, which invites States Parties “topromote the establishment of laws, proce-dures, authorities and institutions specifi-cally applicable to children alleged as,accused of, or recognized as having in-fringed the penal law”.

However, OMCT also notes that the samelegislation provides that both the judge forminors and the Tribunal for Minors adopttheir decisions at a unique level of juris-diction.84 As a result, OMCT regrets that theArgentinian law does not ensure the right toappeal provided by article 40 paragraph 2of the CRC.

OMCT would recommend to theGovernment to amend the Criminal Code ofProcedure in order that every child consid-ered to have infringed the penal law be al-lowed to have this decision and any measureimposed in consequence thereof reviewed bya higher competent, independent and im-partial body.

81 - Régimen Penal de la Minoridad, Ley 22 278/22803, art. 2,3, 4. See CELS, Presentación ante el Comité de derechos hu-manos : Cuestiones a considerar en la evaluación del tercer in-forme periódico de Argentina en cumplimiento del art. 40 delPacto internacional de derechos civiles y políticos, 2000, p.115s.

82 - Código Processal Penal, art. 28: " El Tribunal de Menores juz-gará en única instancia en los delitos cometidos por menoresque no hayan cumplido, dieciocho (18) años al tiempo de lacomisión del hecho, aunque hubiese excedido dicha edad altiempo de juzgamiento, y que estén reprimidos con pena pri-vativa de la libertad mayor de tres (3) años) ". Art. 29 : " Eljuez de menores conocerá: 1ro) En la investigación de los deli-tos de acción pública cometidos por menores que no hayancumplido dieciocho (18) años al tiempo de la comisión del he-cho. 2do) En el juzgamiento en única instancia en los deli-tos y contravenciones cometidos por menores que no hayancumplido dieciocho (18) años al tiempo de la comisión del he-cho y que estén reprimidos con pena no privativa de la lib-ertad o pena privativa de la libertad que no exceda de tres (3)años. 3ro) En los casos de simple inconducta, abandono ma-terial o peligro moral de menores que no hayan cumplidodieciocho (18) años al tiempo de encontrarse en esa situación,conforme lo establecen las leyes especiales ".

83 - Mary Ana Beloff, Niños y adolescentes: Los olvidados de siem-pre a propósito de la reforma procesal penal introducida porla ley 23.984, p. 3.

84 - Código Processal Penal, art. 28 and 29. 32

8.2 Grounds of arrest and deten-tion

Article 411 of the Criminal Code ofProcedure provides that the detention of aminor shall take place, only when there aregrounds for believing that she/he will notcomply with a summons, or will attempt todestroy the traces of the act, or will colludewith her/his accomplices, or will inducefalse statements to be made.85 Despite thisprovision, which fixes strict limits to the de-privation of liberty of children, OMCT re-grets that the Argentinian law, taken as awhole, does not respect article 37 (b) of theCRC, which requires that the detention of achild be used only as a measure of last re-sort.

Indeed, under Argentinian law, measures ofdeprivation of liberty may be imposed onchildren not only for violating criminal pro-visions, but also for non-penal reasons. TheCriminal Regime of Minority establishes forexample that the judge must adopt tutelarymeasures when the child is abandoned, ina state of material or moral danger, presentsbehaviour problems or lacks assistance.86

These measures may be applied even tochildren who are not criminally imputable.

The Law on Patronage of Minors, applica-ble in the city of Buenos Aires, also providesthat judges of the criminal and correctionaljurisdictions must intervene as a preventivemeasure when a minor under 18 years, ac-cused or victim of an offence, is materiallyor morally abandoned or in a state of moraldanger.87 This category may include, for ex-ample, “begging”, “vagrancy”, “frequentingimmoral places” or “being employed at worklikely to harm the morals or health”.88 Ifnecessary, the judge is entitled to imposepreventive detention.89

In August 2001, in the Buenos AiresProvince, the Ministry of Security also sentguidelines to the department headquartersasking for detention operations against chil-dren who were, amongst other things, “un-protected in the street and/or begging”.90

85 - Código Processal Penal, art. 411: " La detención de un menorsólo procederá cuando hubiera motivos para presumir que nocumplirá la orden de citación, o intentará destruir los rastrosdel hecho, o se pondrá de acuerdo con sus cómplices, o in-ducirá a falsas declaraciones (…) ".

86 - Régimen Penal de la Minoridad, Ley 22 278/22803, art. 1 infine.

87 - Ley de Patronato (10 903), art. 14.88 - Ley de Patronato (10 903), art. 21. See Mary Ana Beloff, Niños

y adolescentes: Los olvidados de siempre a propósito de la re-forma procesal penal introducida por la ley 23.984, p. 6.

89 - Ley de Patronato (10 903), art. 14.90 - “Desprotegidos en la vía pública y/o pidiendo limosna”,

Circular del Ministerio de Seguridad Bonaerense, August2000. See SERPAJ-Argentina, La violencia institucional ex-trema como forma de regulación social, Informe sobre los dere-chos del niño en Argentina, p. 28.33

OMCT is concerned by these legal cate-gories which promote coercive measures,rather than the protection and reintegrationof child victims of precarious socio-eco-nomic conditions. Due to their broad con-tents, they extend the possibilities of arrestand detention of children, whereas such adecision should be an exceptional measure.As a result, article 411 of the CriminalProceeding Code does not have any impact,since the judge may decide on the restric-tion of liberty on the basis of the Law onPatronage of Minors and the CriminalRegime of Minority. In practice, it has beenestablished that the judges never take intoaccount article 411.91 In addition, becauseof their vagueness, these legislations in-crease the risk of arbitrary practices.

OMCT wishes to recall article 37 (b) of theCRC which lays down that “no child shallbe deprived of his or her liberty unlawfullyor arbitrarily” and that “the arrest, detentionor imprisonment of a child shall be usedonly as a measure of last resort”.92

OMCT also regrets that the criminal regimeapplicable to children does not separate pe-nal and tutelary criteria when it allows the

adoption of measures of deprivation of lib-erty. Thus it allows adoption of these mea-sures on the basis of a social situation, andnot only on the basis of a suspected illegalaction. This system, which blurs the dis-tinction between sanction and protection,between offence and social marginalisation,tends to weaken the requirement of culpa-bility and the presumption of innocence inthe judiciary process, and thus appears con-trary to due process of law requirements pro-tected by article 40 of the CRC.

It must also be highlighted that, due to theeconomic and social crisis that Argentina iscurrently undergoing, there is a risk thatthese provisions especially affect sociallyand economically disadvantaged groups,such as street children. Indeed, these chil-dren are more likely to be perceived by Stateauthorities as being “materially or morallyabandoned or in a state of moral danger” or“unprotected in the street”, and thus morelikely to be targeted with coercive inter-vention. As a result, these provisions pro-mote an attitude of discrimination andrepression against children living in a par-ticularly difficult situation. Such an attitudewould be incompatible with article 2 of theCRC, which obliges States Parties to respectthe CRC “without discrimination of any

91 - See CELS, Presentación ante el Comité de derechos humanos:Cuestiones a considerar en la evaluación del tercer informeperiódico de Argentina en cumplimiento del art. 40 del Pactointernacional de derechos civiles y políticos, 2000, p. 116.

92 - See also art. 2 of the United Nations Rules for the Protectionof Juveniles Deprived of their Liberty. 34

kind”, and with article 6, which requiresthat they “ensure to the maximum extentpossible the survival and development of thechild”.

Thus, OMCT would recommend that theState amend its legislation so as to establisha clear distinction between child offendersand child victims, in order for the latter tobe protected and assisted, rather than sub-mitted to criminal jurisdictions. More pre-cisely, OMCT would urge the State toabrogate all provisions allowing coercivemeasures against children belonging to cer-tain categories of the population, even whenno offence was committed.

8.3 Conditions of detention

OMCT welcomes the fact that theArgentinian Code of Criminal Procedure andCriminal Code provide for the establishmentof specific facilities for children in pre-trialdetention or condemned to imprisonmentsentences.93 Reality shows, however, thatthis requirement is not fully applied in prac-tice and that the conditions prevailing inchild detention centres do not meet inter-national juvenile justice standards.

The Argentinian prison system is still largelyinadequate. In the Buenos Aires Provincefor example, since there are not enough pe-nal institutions, a large number of childrenin conflict with the law are incarcerated inlocal police stations. Due mainly to a lackof financial and material resources, thesechildren are incarcerated in overcrowdedcells, without sufficient sanitation conditionsand adequate food. In addition, they oftenare subject to ill-treatment from the policeand held with adult detainees.94

OMCT is also very concerned by the situa-tion of children held in institutions. In theBuenos Aires Province, some 800 childrenare detained in penal institutions, and someother 8000 live in assistance institutions, inconditions similar to a prison regime.95

Following an investigation made in 1998 invarious child institutions, Serpaj-Argentina and the association Don BoscoHogares concluded that these institutionsconstitute real prisons for children. In par-

93 - Código procesal penal, art. 411, Código penal, art. 8.94 - Equipo Nikzor, La Suprema Corte de la provincia de Buenos

Aires reconoció que la policía bonaerense fraguó tiroteos paraocultar la muerte de 60 menores de edad, Información y sol-idaridad urgente, 30 octubre 2001 and Assemblea perma-nente por los derechos humanos (APDH), Reclamo de laAPDH por violencia contra niños y adolescentes en la provin-cia de Buenos Aires, 2001.

95 - Equipo Nikzor, La Suprema Corte de la provincia de BuenosAires reconoció que la policía bonaerense fraguó tiroteos paraocultar la muerte de 60 menores de edad, Información y sol-idaridad urgente, 30 octubre 2001. See alsoSERPAJ/Argentina, Hogares Don Bosco, Informe carcel yniños, 1998.35

ticular, they emphasized the fact that thechildren, both perpetrators and victims, arepermanently incarcerated, subject to disci-plinary sanctions, such as confinement inchastisement cells and corporal punishment,and restricted in their family contacts.96

Moreover, these institutions do not provideadequate medical attention or treatment tocure drug addiction.97

Obviously, this situation does not meet var-ious requirements established in article 37of the CRC and in the UN Rules for theProtection of Juveniles Deprived of theirLiberty. Regarding the latter instrument,OMCT wishes to emphasise rule 31, whichstates “the right to facilities and services thatmeet all the requirements of health and hu-man dignity”. OMCT also wishes to recallrule 32, which requires that these facilitiestake into account “the need of the juvenilefor privacy, sensory stimuli, opportunities forassociation with peers and participation insports, physical exercise and leisure-timeactivities”.

The same study also showed that the se-lection of staff working in Argentinian institutions is not adapted to international

standards, since most employees are nottrained to attend children. In this respect,OMCT would like to recall rule 81 of the UNRules for the Protection of JuvenilesDeprived of their Liberty, according to whichthe personnel of juvenile detention facilities“should be qualified and include a sufficientnumber of specialists such as educators, vo-cational instructors, counsellors, socialworkers, psychiatrists and psychologists”.

OMCT would then urge the ArgentinianGovernment to adapt its child detention cen-tres in order to meet the requirements of ar-ticle 37 (c) of the CRC, which states that“every child deprived of liberty shall betreated with humanity and respect for the in-herent dignity of the human person, and ina manner which takes into account theneeds of persons of his or her age. In par-ticular, every child deprived of liberty shallbe separated from adults unless it is con-sidered in the child's best interest not to doso and shall have the right to maintain con-tact with his or her family through corre-spondence and visits, save in exceptionalcircumstances”.

96 - SERPAJ/Argentina, Hogares Don Bosco, Informe carcely niños, 1998, p. 2.

97 - SERPAJ/Argentina, Hogares Don Bosco, Informe carcely niños, 1998, p. 3 ss. 36

The International Secretariat of OMCT isprofoundly concerned with the situation ofchildren in Argentina, in particular, with thedegree of risk that street children face of ex-trajudicial executions and torture. OMCTbelieves that a number of safeguards, bothlegal and practical, must be implemented inorder to fully guarantee the rights of childrenenshrined in the CRC.

Regarding the legal system of Argentina,OMCT recommends that the Committee onthe Rights of the Child:

• ask the Argentinian Government to:

- give more information on the legal sta-tus of the CRC in the domestic legis-lation;

- undertake all appropriate legislative,administrative, and other measures toensure the full implementation of theprovision the CRC at national level.

Regarding discrimination, OMCT recom-mends that the Committee on the Rights ofthe Child:

• urge the Argentinian Government to:

- amend article 166 of the Civil Code soas to establish 18 years old as the min-imum age for marriage for both girlsand boys;

- systematically collect reliable data ondiscrimination and violence affectinggirls in order to set up a comprehensivepolicy aimed at fully implementing therequirement of article 2 of the CRC;

- undertake an information campaign topromote awareness among girls of theirrights and the remedies available tothem;

- provide information on the situation ofindigenous children in Argentina ingeneral, and of the Mapuche commu-nity in particular;

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VI. Conclusions and Recommendations

- take all the necessary measures so asto guarantee that Mapuche childrenmight fully enjoy their rights to health,survival and life.

Regarding torture and other cruel, inhumanor degrading treatment or punishment ofchildren, OMCT recommends that theCommittee on the Rights of the Child:


- ensure that prosecutors and judges,with the support of the police, diligentlyinvestigate all allegations of torture andill-treatment made by child detaineesand adopt adequate sanctions when-ever necessary;

- implement effective procedures for in-ternal monitoring and disciplining ofthe behaviour of public officials, in-cluding sanctions for failure to providechildren with a lawyer or to informthem of their right to notify their nextof kin of their detention;

- adopt and enforce appropriate sanc-tions for public officials who are foundto have held a child in custody without

immediately notifying the prosecutor,or interrogated a child without the pres-ence of a prosecutor or a lawyer;

- ensure that independent and qualifiedmedical personnel be required to carryout regular examinations of child de-tainees;

- ensure that sentences for torture or ill-treatment are commensurate with thegravity of the crime;

- elaborate and implement preventiveprogrammes, in particular by ensuringeducation and training for all person-nel who may be involved in the cus-tody, interrogation or treatment of anychild subjected to any form of arrest,detention or imprisonment. This shouldinclude specific training in child psy-chology, child welfare and internationalstandards and norms of human rightsand the rights of the child, in particu-lar the CRC and the UN Rules for theProtection of Juveniles Deprived oftheir Liberty;

- ensure that victims of torture obtain re-dress and have an enforceable right tofair and adequate compensation. Child

38

victims must also be entitled to mea-sures to promote their physical andpsychological recovery and social rein-tegration in an environment which fos-ters their health, self-respect anddignity.

Regarding unlawful killings, OMCT rec-ommends that the Committee on the Rightsof the Child:


- guarantee thorough investigations into alleged violations of the right to life ofchildren in detention or in the street,identify those responsible, bring thembefore a civil competent and impartialtribunal and apply the appropriate penal,civil and/or administrative sanctions;

- elaborate and implement preventiveprogrammes, in particular by ensuringeducation and training for policeagents. This should include specifictraining on the Convention on theRights of the Child, as well as on theUN Basic Principles on the Use ofForce and Firearms by LawEnforcement Officials.

Regarding violence in the family, OMCTrecommends that the Committee on theRights of the Child:


- supply information on penal sanctionsapplicable to perpetrators of violenceagainst children within the family;

- supply information on concrete mea-sures aimed at providing assistanceand protection to child victims, in par-ticular on the programme elaborated bythe Office of Integral Assistance for theVictim of Offences.

Regarding sexual abuse against and ex-ploitation of children, OMCT recommendsthat the Committee on the Rights of theChild:


- collect reliable and complete data onsexual violence in Argentina in orderto set up a comprehensive policy aimedat fully implementing the requirementof article 34 of the CRC;

39

- adopt and implement a criminal policywhich seeks to investigate and punishthose responsible for sexual violenceagainst children, including serviceproviders, customers and intermedi-aries in child prostitution, child traf-ficking and child pornography;

- adopt preventive measures, through ed-ucation, training, information and otherforms of awareness raising, health ser-vices and monitoring mechanisms;

- supply information on concrete mea-sures aimed at providing assistanceand protection to child victims, in par-ticular on the programme elaborated bythe National Board of the Minor andthe Family for the attendance of sexu-ally exploited children;

- provide for recovery and reintegrationof child victims through, inter alia, so-cial, medical, psychological and othersupport, effective actions to prevent orremove social stigmatisation and legalcriminalisation, and the promotion ofalternative means of livelihood.

Regarding child labour, OMCT recom-mends that the Committee on the Rights ofthe Child:


- adapt its child labour law to interna-tional standards, in particular to ILOConvention 138, by establishing, as ageneral rule, that the minimum age foradmission to employment be 15 years,and that it be raised to 18 years in caseof employment, such as mining, likelyto jeopardise the health, safety ormorals of children;

- collect reliable and complete data onchild labour in Argentina in order to setup a comprehensive policy aimed atfully implementing the requirement ofarticle 32 of the CRC.

Regarding the juvenile justice system,OMCT recommends that the Committee onthe Rights of the Child:


- launch a thorough reform of the juve-nile justice system in accordance with

40

the provisions of the CRC, in particu-lar with the necessity to establish aclear distinction between child of-fenders and child victims, in order forthe latter to be protected and assisted,rather than submitted to criminal ju-risdictions;

- amend the Criminal Code ofProcedure in order that every childconsidered to have infringed the penallaw be allowed to have this decisionand any measure imposed in conse-quence thereof reviewed by a highercompetent, independent and impartialbody;

- strictly define the possible grounds ofarrest and detention which might beapplied to children in order to ensurethat the deprivation of liberty is a lastresort for all children in conformitywith article 37(b) of the CRC;

- ensure that child detainees are keptseparately from adults, unless it is intheir best interests not to do so;

- provide for adequate alternative mea-sures to detention and pre-trial deten-tion, so as to stop keeping children in

conflict with the law incarcerated in po-lice stations;

- ensure that life conditions in police sta-tions and child institutions be in con-formity with article 37 of the CRC andthe UN Rules for the Protection ofJuveniles Deprived of their Liberty, inparticular by resolving overcrowdingproblems, poor hygiene, lack of foodand restrictions on family visits;

- give information regarding the trainingactivities developed for all profession-als involved in the system of juvenilejustice, on the provisions of the CRCand other relevant international in-struments in the field of juvenile jus-tice, including the "Beijing Rules", the"Riyadh Guidelines" and the UnitedNations Rules for the Protection ofJuveniles Deprived of their Liberty.

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COMMITTEE ON THE RIGHTS OF THE CHILD31st Session - Geneva, 18 september - 4 October 2002

Concluding observationsof the Committee

on the Rights of the Child: Argentina

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1. The Committee considered the second periodic report of Argentina (CRC/C/70/Add.10), submitted on 12 August 1999, at its807th and 808th meetings (see CRC/C/SR.807-808), held on 17 September 2002, andadopted the following concluding observationsat its 833rd meeting, held on 4 October 2002.

A. Introduction

2. The Committee welcomes the submissionof the State party’s second periodic report butit notes with regret that it does not follow the guidelines for reporting. It further regretsthe late and incomplete submission of thewritten replies to its list of issues (CRC/C/Q/ARG.2). It welcomes, however, the senior andwell-informed delegation sent by the Stateparty and the frank dialogue and the positivereactions to the suggestions and recommen-dations made during the discussion.

B. Follow-up measures

undertaken and progress

achieved by the State party

3. The Committee notes with satisfaction thatthe state legislation regarding children in someof the provinces, such as in the case Mendoza,Chubut and the City of Buenos Aires, com-plies with the provisions and principles of theConvention.

4. The Committee welcomes the adoption ofLaw 24.417 on protection against domestic vi-olence.

5. The Committee notes the recent estab-lishment of the National Council for Children,Adolescents and the Family and the creationof the Office for Comprehensive Assistance forVictims of Crime (OFAVI), as recommendedin the previous Concluding Observations(idem, para.20).

6. The Committee welcomes the improvementin the cooperation between the State party andnon-governmental organisations working onchildren’s rights issues.

CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIESUNDER ARTICLE 44 OF THE CONVENTION

7. The Committee welcomes the signature ofa Memorandum of Understanding with IPECand the establishment in 2000 of a NationalCommission for the Eradication of ChildLabour (CONAETI).

8. The Committee notes with satisfaction theadoption of a National Plan of Action againstthe Sexual Commercial Exploitation ofChildren

9. The Committee welcomes the ratification ofthe Optional Protocol to the Convention on theinvolvement of children in armed conflicts.

C. Factors and difficulties

impeding progress

in the implementation

of the Convention

10. The Committee acknowledges that theState party is facing many difficulties in theimplementation of the Convention, in partic-ular due to the economic, political and socialcrises affecting the country and that the in-creasing poverty is impeding the full achieve-ment and enjoyment of the rightsrecognised in the Convention.

D. Principal areas of concern

and recommendation

1. General Measures of Implementation(arts. 4, 42 and 44, paragraph 6 of the Convention) Committee’s previousrecommendations

11. The Committee regrets that most of theconcerns and recommendations (CRC/C/ 15/Add.35 of 15 February 1995) it made uponconsideration of the State party’s initial report(CRC/C/8/Add.12 and 17) have been insuf-ficiently addressed, particularly those contained in paras.14 (reservations), 15 (co-ordination) and 16 (review of budgetary mea-sures). The Committee notes that thoseconcerns and recommendations are reiteratedin the present document.

12. The Committee urges the State party tomake every effort to address those recom-mendations from the concluding observationsof the initial report that have not yet been im-plemented and to address the list of concernscontained in the present concluding obser-vations on the second periodic report.

1 - At the 833rd meeting, held on 4 October 2002. 46

Reservations

13. The Committee reiterates its concernabout the reservations (idem, para.8) enteredby the Government of Argentina upon the ratification of the Convention with respect toarticle 21 (b), (c), (d), and (e).

14. The Committee reiterates its recommen-dation (idem, para.14) that the State party con-sider reviewing the reservations entered uponratification of the Convention with a view ofwithdrawing it.

Legislation

15. The Committee is concerned that that thecurrent legislation on children, Law 10.903(Ley de Patronato), dates back to 1919 and is based on the doctrine of “irregular situa-tion” where children are an object of “judicialprotection”. Although the Chamber ofDeputies passed a draft law on the compre-hensive protection of the rights of the child in November 2001, it has not yet been enacted(media sancíon), so that there is no legislationin force at the federal level which considersthe child as a subject of rights. Further, the Committee also notes that provincial legislation often does not comply with the

provisions and principles of theConvention.

16. The Committee recommends that the Stateparty:

a) Take all the necessary measures for theadoption as a priority by Parliament with-out delay of the draft law on the compre-hensive protection of the rights of the child;

b) Once enacted, ensure the full implemen-tation of the law on the comprehensive pro-tection of the rights of the child incompliance with the Convention, payingparticular attention to the need for adequatestructures by allocating the necessary hu-man and financial resources;

c) Ensure that legislation at provincial levelas a whole fully complies with provisionsand principles of the Convention;

d) Seek technical assistance from, among oth-ers, UNICEF. Coordination

17. While noting the recent efforts of theNational Council for Children, Adolescentsand the Family to improve coordination and the establishment of monitoring teams in17 provinces, the Committee regrets that its

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previous recommendation about assuring bet-ter co-ordination between mechanisms and in-stitutions dealing with the promotion andprotection of the rights of children (idem,para.15) was not fully followed up, and thatState party still lacks a clearly defined andcomprehensive child rights policy and plan ofaction for the Convention’s implementation.

18. The Committee reiterates its previous rec-ommendation (idem, para.15) that the Stateparty take a comprehensive approach in im-plementing the Convention in particular by:

a) improving the coordination between vari-ous mechanisms and institutions already inplace to deal with the promotion and pro-tection of children’s rights; and

b) strengthening its children’s rights policyand developing a National Plan of Action for the implementation of theConvention, which should be preparedthrough an open, consultative and partic-ipatory process.

Resources for children

19. The Committee expresses its concern thatbudgetary allocations for children are still in-

sufficient to respond to federal, provincial andlocal priorities for the protection and promo-tion of children's rights and to overcome andremedy existing disparities between rural andurban areas, as well as within urban areas inparticular Buenos Aires, with respect to pub-lic services provided to children. It notes withdeep concern that, according to recent statis-tics mentioned by the State party in its replyto the list of issues, 69.2% of children inArgentina live in poverty, of which 35.4 livein extreme poverty.

20. In light of article 4 of the Convention, theCommittee encourages the State party:

a) to review economic and social policies andallocations in of resources in the budgetwith a view to ensuring that the maximumamount of available resources is allocatedto promote and protect the rights of thechild at the federal, regional and local lev-els, especially in the fields of health, edu-cation, social welfare and security, aspreviously recommended (idem, para.16)

b) to identify the amount and proportion of re-sources spent on children at the nationaland local levels in order to evaluate the im-pact and effect of the expenditures on chil-dren.

Independent monitoring

21. While noting the existence of the Defensordel Pueblo, the Committee is concerned at theabsence of an overall national mechanismwith the mandate to regularly monitor andevaluate progress in the implementation of theConvention and which is empowered to re-ceive and address complaints by children. Itfurther notes that the draft law on the com-prehensive protection of the rights of the child,which has not yet been enacted, includes pro-visions for the creation of a Child RightsDefender.

22. The Committee encourages the State party,as previously recommended (idem,para.15), to establish an independent and ef-fective mechanism in accordance with theParis Principles relating to the status of national institutions for the promotion and protection of human rights (GeneralAssembly resolution 48/134), either as a partof a National Institution on Human Rights or as a separate body, such as a ChildrenOmbudsman, which should be provided withadequate human and financial resources andeasily accessible to children, that:

a) monitors the implementation of theConvention;

b) deals with complaints from children in achild-sensitive and expeditious manner;and

c) provides remedies for violations of theirrights under the Convention.

In this regard, the Committee further recom-mends that the State party consider seekingtechnical assistance from, among others,UNICEF and OHCHR.

Data collection

23. The Committee notes the establishment ofa unified system of collecting data, yet remainsconcerned that statistical data about childrendo not cover sufficiently and in a disaggre-gated way all areas covered under theConvention and that, when available, are notused in an adequate way to assess trends andas a basis for policy-making in the field ofchildren’s rights.


a) improve its system of data collection witha view to incorporating all the areas cov-ered by the Convention in a disaggregated

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manner. Such a system should cover allchildren below the age of 18 years, withspecific emphasis on those who are par-ticularly vulnerable, including childrenwith disabilities; and

b) effectively use these indicators and data forthe formulation and evaluation of policiesand programmes for the implementationand monitoring of the Convention.

2. Definition of the child (article 1 of theConvention)

25. The Committee reiterates its concern atthe disparity of marriage ages for boys andgirls in Argentine law (idem, para.10).

26. In light of articles 1, 2 and other related provisions of the Convention, theCommittee recommends that the State partyreview its legislation with a view to increas-ing the minimum age of marriage of girls to theone of boys.

3. General principles (arts. 2, 3, 6 and 12 ofthe Convention)

General principles

27. The Committee is concerned that the prin-ciples of non-discrimination (art. 2 of theConvention), best interests of the child (art. 3),right to life, survival and development of thechild (art.6) and respect for the views of thechild (art. 12) are not fully reflected in theState party's legislation and administrative andjudicial decisions, as well as in policies andprogrammes relevant to children at federal,provincial and local levels.


a) appropriately integrate general principlesof the Convention, namely articles 2, 3, 6and 12, in all relevant legislation con-cerning children;

b) apply them in all political, judicial and ad-ministrative decisions, as well as in pro-jects, programmes and services which havean impact on all children; and

c) apply these principles in planning and policy-making at every level, as well as

51

in actions taken by social and health welfare and educational institutions, courtsof law and administrative authorities.

Non-discrimination

29. The Committee is concerned that the prin-ciple of non-discrimination (art. 2 of theConvention) is not fully implemented for children living in poverty, indigenous children, children of migrant workers, primarily those from neighbouring countries,street children, children with disabilities and marginalised adolescents who are neither studying nor working, especially with regard to their access to adequate health care and educational facilities.

30. The Committee recommends that the Stateparty:a) monitor the situation of children, in par-

ticular those belonging to the abovemen-tioned vulnerable groups, who are exposedto discrimination; and

b) develop, on the basis of the results of thismonitoring, comprehensive strategies containing specific and well targeted actions aimed at eliminating all forms ofdiscrimination.

31. The Committee requests that specific in-formation be included, in the next periodic report, on the measures and programmes rel-evant to the Convention on the Rights of theChild undertaken by the State party to followup on the Declaration and Programme ofAction adopted at the 2001 World ConferenceAgainst Racism, Racial Discrimination,Xenophobia and Related Intolerance, and taking account of General Comment no. 1 onarticle 29(1) of the Convention (aims of edu-cation).

Respect for the views of the child

32. The Committee notes that the right to par-ticipate in schools, as well as outside, and theright to be heard for all children needs to befurther strengthened.

33. In light of article 12, the Committee rec-ommends that the State party:

a) Follow up on the Committee’s previous recommendation (idem, para.21) that fur-ther steps be taken to encourage the active participation of children in schools, and society in general, in the spirit of article 12of the Convention;

52

b) make sure that all children mature enoughto express their views are heard in all ju-dicial and administrative procedures af-fecting them; and

c) undertake campaigns to make children,parents, professionals working with and forchildren and the public at large aware thatchildren have the right to be heard and tohave their views taken seriously.

4. Civil rights and freedoms (arts. 7, 8, 13-17 and 37 (a) of the Convention)

Preservation of identity

34. The Committee recognises the work doneby the National Commission for the Right toan Identity (CONADI) to recover missing chil-dren during the military rule from 1976 to1983 and notes that out of an estimated 500cases of disappearances of children, 73 havebeen found.

35. In light of article 8 of the Convention, theCommittee encourages the State party to con-tinue and strengthen its efforts to recover thechildren who disappeared during the militaryrule.

Right not to be subjected to torture

36. The Committee expresses its deep concernabout institutional violence and specific re-ports of torture and ill-treatment of childrenheld at police stations (Commissarias) whichin some cases have resulted in death. It is alsoextremely concerned at additional reports ofpolice brutality, specifically the phenomenaof gatillo fácil (easy trigger syndrome), espe-cially in the Province of Buenos Aires, whichhas led to the death of many children. It notesthat, according to the Supreme Court of Justiceof the Province of Buenos Aires, several of thechildren who died, had previously denouncedpressures and torture by the provincial policeand that the majority of the cases are not ad-equately investigated and perpetrators notbrought to justice.

37. In light of article 37(a) of the Convention,the Committee urges the State party to:

a) Undertake a study on the above mentionedissues in order to assess the extent, scopeand nature of these practices;

b) Enforce the recently signed National Planof Action for the Prevention andElimination of Institutional Violence;

c) investigate in an effective way and withina reasonable time reported cases of killings,torture and ill treatment of children;

d) urgently take measures to transfer from ac-tive duty or suspend alleged perpetrators,as appropriate, while they are under in-vestigation, and release them if convicted;

e) provide a systematic training of law en-forcement personnel on human and chil-dren’s rights and on how to avoid the useof force;

f) establish a complaint mechanism, whichshould be easily accessible and child sen-sitive and inform children of their rights, in-cluding the right to complain;

g) ensure that independent and qualifiedmedical personnel be required to carry outregular examinations of child detainees;and

h) in light of article 39, take all appropriatemeasures to ensure physical and psycho-logical recovery and social reintegration forchild victims of torture and/or ill treatment,and that they receive compensation.

Corporal punishment

38. The Committee notes with concern thatthere is no explicit prohibition of corporal pun-ishment under law and that it is still widelypracticed in the home and in some institu-tions.

39. The Committee recommends that the Stateparty expressly prohibit corporal punishmentin the home and all institutions, and carry outpublic education campaigns to promote pos-itive, non-violent forms of discipline as an al-ternative to corporal punishment.

5. Family environment and alternativecare (arts.5; 18 (paras.1-2); 9-11; 19-21;25; 27 (para.4); and 39 of the Convention)Children deprived of family environment

40. The Committee is deeply concerned thatLaw N.10.903 of 1919 and Law N.22.278,which are currently still in force and based onthe doctrine of "irregular situation", do notdistinguish between children in need of careand protection and those in conflict with thelaw in terms of judicial procedures and treat-ment.

41. The Committee recommends that the Stateparty establish appropriate mechanisms and

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procedures to address the situation of childrenin need of care and protection that can be im-plemented immediately once the draft law onthe comprehensive protection of the rights ofthe child currently under consideration (me-dia sanction) comes into force, thereby re-placing Law N.10.903 and N.22.278.

42. The Committee expresses its serious con-cern about the number of children, in par-ticular children coming from poor families,who are deprived of a family environment andplaced in public assistance institutions or res-idential homes, often far from their home.

43. In light of article 20 of the Convention, theCommittee recommends that the State party:

a) Take effective measures to increase andstrengthen foster care, family-type fosterhomes and other family-based alternativecare;

b) Place children in institutions only as ameasure of last resort;

c) Take all necessary measures to improveconditions in institutions;

d) Provide support and training for personnelworking in institutions;

e) Establish effective mechanisms to receiveand address complaints from children incare, to monitor standards of care and, inlight of article 25 of the Convention, to es-tablish regular periodic review of place-ment.

Abuse and neglect

44. The Committee, while noting the adoptionof Law 24.417 on protection against domes-tic violence, remains concerned about the ex-tent of domestic violence, the lack ofstandardised procedures for the identificationand reporting of cases of neglect, ill-treatmentand abuse, and the limited services for thesupport of victims especially in the provinces.


a) Undertake studies on domestic violence,violence against children, ill-treatment andabuse, including sexual abuse, and in-crease the statistical system for the wholecountry to keep a record of incidents ofphysical and mental violence and neglectagainst children, in order to assess the ex-tent, scope and nature of these practices;

55

b) Adopt and implement effectively adequatemeasures and policies, including publiccampaigns on alternative forms of disci-pline, and contribute to changing attitudes;

c) Investigate effectively cases of domestic vi-olence and ill-treatment and abuse of chil-dren, including sexual abuse within thefamily, within a child-sensitive inquiry andjudicial procedure in order to ensure bet-ter protection of child victims, including theprotection of their right to privacy;

d) Increase measures to provide support ser-vices to children in legal proceedings, andfor the physical and psychological recov-ery and social reintegration of the victimsof rape, abuse, neglect, ill-treatment and vi-olence, in accordance with article 39 of theConvention;

e) Take into account the Committee’s rec-ommendations adopted at its days of gen-eral discussion on “Violence AgainstChildren within the Family and in Schools”(CRC/C/111) and on “State Violenceagainst Children” (CRC/C/100).

6. Basic health and welfare (arts. 6; 18,para. 3; 23; 24; 26; 27, paras 1-3 of theConvention)

Health and health services

46. While noting the decrease in the infant,child and maternal mortality rates, theCommittee is nevertheless concerned that therates remain high and that there are great disparities existing within these rates, in par-ticular with regard to children with a lower socio-economical origin, those living in ruralareas, in particular in the northern provinces,and indigenous children. It also notes that 6out of 10 infant deaths could be avoided withlow cost actions.


a) Allocate appropriate resources and developcomprehensive policies and programmes toimprove the health situation of all childrenwithout discrimination, in particular by fo-cusing more on health promotion and pre-vention;

b) In order to further decrease child mortal-ity and morbidity and maternal mortalityrate, take measures to implement the

Reproductive Health and ResponsibleProcreation Act of July 2000;

c) and provide adequate antenatal and post-natal health-care services and developcampaigns to inform parents about basicchild health and nutrition, the advantagesof breastfeeding, hygiene and environ-mental sanitation, family planning and re-productive health, especially in theprovinces.

Malnutrition

48. The Committee notes with deep concernthat the increasing rates of malnutrition are af-fecting, according to the most recent statistics,more than 4 million children, in particularnewborn children and those living in thenorthern provinces. It further notes that theimpact of the economic crisis on children’state of health and nutrition was not yet as-sessed.


a) Undertake a study on child malnutrition,and create a unified statistical system to keep a record of malnutrition cases in

order to assess the extent, scope and natureof this practice;

b) develop a comprehensive nutritional pro-gramme in order to prevent and combatmalnutrition;

c) and seek international cooperation from,among others, UNICEF and WHO.

Adolescent health

50. The Committee notes with concern thegrowing number of cases of HIV/AIDS amongthe youth, notwithstanding an existingNational Plan of Action for HIV/AIDS, and re-iterates its concern (idem, para.12) about thenumber of teenage pregnancies, in particularin some of the provinces.


a) Review and reactivate its programmesagainst HIV/AIDS and increase its effortsto promote adolescent health policies. Dueattention should be given particularly to reproductive health and the programme ofhealth and sexual education in schoolsshould be further strengthened;

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b) Undertake a comprehensive and multi-disciplinary study to assess the scope and nature of adolescent health problems,including the negative impact of STDs and HIV/AIDS, and continue to develop adequate policies and pro-grammes;

c) Undertake further measures, including theallocation of adequate human and financialresources, to evaluate the effectiveness of training programmes in health educ-ation, in particular as regards reproductivehealth, and to develop youthsensitive and confidential counselling, care and rehabilitation facilities that are accessiblewithout parental consent when this is in thebest interests of the child; and

d) Seek technical cooperation from, amongothers, UNFPA, UNICEF, WHO and UN-AIDS.

Children with disabilities

52. The Committee notes with concern thatthere is a lack of information about childrenwith disabilities in Argentina. It further notes with concern that there are cases whenchildren are institutionalised because of

insufficient support to poor families with disabled children.

53. In light of article 23 of the Convention, the Committee recommends that the State party:

a) Undertake studies on the situation of children with disabilities in order to assessits extent, scope and nature;

b) Undertake measures to ensure that the situation of children with disabilities ismonitored in order to assess their situationand address their needs effectively;

c) Conduct public awareness campaigns toraise awareness of the situation and therights of children with disabilities;

d) Allocate the necessary resources for pro-grammes and facilities for all children withdisabilities, especially the ones living in provinces, and strengthen community-based programmes to enable them to stayat home with their families;

e) Support the parents of children with dis-abilities with counselling and, when nec-essary, financial support;

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f) In light of the Standard Rules on theEqualisation of Opportunities for Personswith Disabilities (General AssemblyResolution 48/96) and the Committee’s rec-ommendations adopted at its day of generaldiscussion on “The Rights of Children withDisabilities” (CRC/C/69, paras.310-339), further encourage their integrationinto the regular educational system and in-clusion into society, including by provid-ing special training to teachers and bymaking schools more accessible.

Standard of living

54. The Committee notes with concern thatthe recent economic, political and social criseshave caused increased poverty, particularlyamong children and vulnerable groups.

55. The Committee recommends that the Stateparty continue its efforts to prevent, includingthrough a comprehensive poverty reductionstrategy which incorporates human rights principles, the decline in living standards offamilies, in particular, among vulnerablegroups.

7. Education, leisure and cultural activi-ties (arts. 28, 29, 31 of the Convention)

Education

56. The Committee, while noting the increasein school enrolment for both primary and sec-ondary schools, remains concerned at the lim-ited access to education, high drop-out andrepetition rates, especially at secondary schoollevel, which affects in particular children frommarginalised urban and rural areas, indige-nous children and the ones belonging to mi-grant families, particularly when illegal. Itfurther notes with concern the reduction in ed-ucation spending which affects in particularpoorer children.

57. In light of articles 28 and 29 of theConvention, the Committee recommends thatthe State party:

a) Increase the budget allocated to education;

b) Enforce the Social Plan of Education in or-der to ensure regular attendance at schoolsand the reduction of drop-out rates, espe-cially with regard to the most vulnerablechildren;

c) Strengthen programmes of subsidies and

scholarships for the children who are mostaffected by the economic crisis;

d) Strengthen and expand education in humanand children’s rights;

e) Improve the quality of education in orderto achieve the goals mentioned in article29(1), in line with the Committee’s generalcomments No.1 on the aims of education.

8. Special protection measures (arts. 22, 38,39, 40, 37 (b)-(d), 32-36 of the Convention)

Economic exploitation

58. The Committee, while noting that the Stateparty ratified ILO Conventions No.138 con-cerning Minimum Age for Admission toEmployment in 1996 and No.182 concerningthe Prohibition and Immediate Action for theElimination of the Worst Forms of ChildLabour in 2001, notes with deep concern thegrowing number of children under 14 who areexploited economically, in particular in ruralareas, because of the economic crisis. It is alsoconcerned at the lack of data and informationwith regard to this issue.


a) Undertake a comprehensive study on childlabour in order to assess the extent, scopeand nature of this problem;

b) Continue to enforce and strengthen its leg-islation protecting working children in accordance with ILO Conventions No. 138and 182, also with a view to increasing theminimum age to 15;

c) Continue to develop and ensure the adop-tion of the National Plan to Prevent andEradicate Child Labour;

d) Establish a reliable system to gather in-formation on child labour;

e) Combat and eradicate as effectively as possible all forms of child labour, includ-ing by strengthening its cooperation withILO/IPEC and UNICEF.

Sexual exploitation and trafficking

60. The Committee is concerned that the phe-nomenon of child prostitution, especially inbig cities, is increasing. It further notes that,

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although a National Plan of action to combatcommercial sexual exploitation of childrenwas adopted in 2000, there are not yet coor-dinated policies and programmes on this.

61. In light of articles 32 to 36 of theConvention, the Committee recommends thatthe State party:

a) Undertake a study on the issue of com-mercial sexual exploitation and traffickingof children in order to assess its scope andcauses and develop effective monitoringand other preventive measures;

b) Combat and eliminate commercial sexualexploitation and trafficking of children, in-cluding through the enforcement of theNational Plan of Action, the developmentof social integration programmes, and poli-cies and programmes for the rehabilitationand recovery of child victims according tothe Declaration and Agenda for Action andthe Global Commitment adopted at the1996 and 2001 World Congresses againstCommercial Sexual Exploitation ofChildren;

Administration of juvenile justice

62. The Committee notes with satisfaction theenactment of the Bill on the CriminalResponsibility of Juveniles which establisheslimits juvenile criminal responsibility and pro-cedures to be followed, in accordance with art.40 (3) of the Convention. Yet, it reiterates itsdeep concern that Law N.10.903 of 1919 andLaw N.22.278, currently in force and basedon the doctrine of "irregular situation", doesnot make a clear distinction between childrenin need of care and protection and those inconflict with the law. In this regard, theCommittee notes that there are several draftlaws for the reform of the juvenile justice sys-tem under discussion before Parliament, un-der which a judge can order the detention ofchildren without due process only because oftheir social situation and that this decisioncannot be appealed. In addition, it expressesits concern at the fact that, under art.205 ofthe Code of Criminal Procedure, there is apossibility of incommunicado detention of achild for a maximum of 72 hours. It furthernotes with concern the poor conditions of chil-dren in detention, including the lack of ade-quate basic services such as education andhealth, the absence of adequately trained staff,and the use of corporal punishment and iso-lation.

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a) Review laws and practices regarding thejuvenile justice system in order to bring itas soon as possible into full compliancewith the Convention, in particular articles37, 40 and 39, as well as with other rele-vant international standards in this area,such as the United Nations StandardMinimum Rules for the Administration ofJuvenile Justice (the Beijing Rules) and theUnited Nations Guidelines for thePrevention of Juvenile Delinquency (theRiyadh Guidelines);

b) Expedite its establishment, including by al-locating adequate human and financial re-sources;

c) Ensure that there is a clear distinction interms of procedures and treatment betweenchildren in conflict with the law and chil-dren in need of protection;

d) Use detention, including pre-trial deten-tion, only as a measure of last resort, for asshort a time as possible and for no longerthan the period prescribed by law and en-sure that children are always separatedfrom adults;

e) Use alternative measures to pre-trial de-tention and other forms of deprivation ofliberty whenever possible;

f) Incorporate into its legislation and practicesthe United Nations Rules for the Protectionof Juveniles Deprived of Their Liberty, inparticular to guarantee them access to ef-fective complaints procedures covering allaspects of their treatment;

g) Take the necessary measures to improvedetention conditions;

h) In light of article 39, take appropriate mea-sures to promote the recovery and socialreintegration of the children involved in thejuvenile justice system;

i) Seek assistance from, inter alia,OHCHR, the United Nations Centre for International Crime Prevention, theInternational Network on JuvenileJustice, UNICEF, and through the United Nations Coordination Panel onTechnical Advice and Assistance onJuvenile Justice.

9. Optional protocols

64. The Committee welcomes the State party’sratification of the Optional Protocol on the in-volvement of children in armed conflict, butnotes that it has not yet ratified OptionalProtocol to the Convention on the Rights of theChild on the sale of children, child prostitu-tion and child pornography.

65. The Committee recommends that the Stateparty continue to pursue ongoing efforts for theratification of the Optional Protocol on the saleof children, child prostitution and childpornography.

10. Dissemination of reports

66. Finally, the Committee recommends that,in light of article 44, paragraph 6, of theConvention, the second periodic report andwritten replies presented by the State party be made widely available to the public at large and that the publication of the report be considered, along with the relevant sum-mary records and the concluding observationsadopted by the Committee. Such a documentshould be widely distributed in order to generate debate and awareness of the

Convention and its implementation and monitoring within the Government, theParliament and the general public, includingconcerned non-governmental organisations.

11. Next reports

67. The Committee underlines the importanceof a reporting practice that is in full compli-ance with the provisions of article 44 of theConvention. An important aspect of States' re-sponsibilities to children under theConvention includes ensuring that the UNCommittee on the Rights of the Child has reg-ular opportunities to examine the progressmade in the Convention's implementation. Inthis regard, regular and timely reporting byState parties is crucial. The Committee recog-nises that some State parties experience dif-ficulties in initiating timely and regularreporting. As an exceptional measure, in or-der to help the State party catch up with its re-porting obligations in full compliance with theConvention, the Committee invites the Stateparty to submit its next periodic report beforethe due date established under the Conventionfor the fourth periodic report, on 2 January2008. This report will combine the third andfourth periodic reports.

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