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relevance or authority. Another fundamental point has to do with “institutional
totality or lack thereof” which concerns the question of whether the institution, within
its walls, offered everything the minor could need; now, however, the opposite is the
goal, because the Convention states that deprivation of liberty should only be used in
exceptional cases, and then only as a “last resort” and “for the shortest appropriate
period of time.”
The reference in the international standards to preventive detention in these cases
and to reasonable time periods is one of the most problematic aspects both from the
normative standpoint and from the standpoint of judicial interpretation. Clearly, the
notion of preventive detention as an anticipated form of punishment or as an
exaggerated albeit temporary method of teaching a lesson still persists.
Human rights are “evolving in the direction of specificity,” leaving less room for
discretion and requiring more exacting language in the law.
Experience has
demonstrated that judicial discretion invariably works to the disadvantage of the
weakest and least protected sectors.
Therefore, judicial discretion has to be
drastically reduced through a legislative technique that spells out precisely what
conditions must be present in order for a juvenile to be lawfully deprived of his
liberty.
The measures that could be taken in a country to mitigate any harm done to a group
of juveniles held under subhuman conditions would be on two different levels. On
the one hand, in the case of harm actually caused to persons and to individuals, the
response cannot, prima facie, be general in nature; instead, the responses must be
tailored to the individuals, on a case-by-case basis. If it is established that a
deprivation of liberty is not authorized by law, i.e., that the deprivation of liberty is
unlawful, then a standard would have to be established for determining reparations.
That standard must consider what had been and what might have been each
individual’s life plan had the State not unlawfully and improperly stepped in and
disrupted it. The settlements must be forward looking as well, so that these cases
do not recur.
Without belittling the importance of tangible, individual reparations and reparations
in the normative area and in institutional policy, symbolic reparations are a
necessary tool by which to effect real change for the future and serve a very central
instructive purpose for the future of the interpretation of the Convention on the
Rights of the Child. To begin with, States have to be required to apologize for having
enforced, in the case of children, bad laws that were for many years blatantly
unconstitutional. States must also pay the necessary pecuniary damages and make
reparations in the form of legal and institutional changes. Symbolic reparations are
an important dimension not just to work toward a just social policy but also to
enhance a State’s own legitimacy.
Reform in Paraguay has made headway on the normative or prescriptive front, to
bring its laws into line with the Convention on the Rights of the Child. However, it
would be a mistake to think that changes at the normative or prescriptive level
brought about change in the realm of implementation; normative or prescriptive
changes have not always been matched by the institutional reforms needed to put
the prescriptive changes into practice.
Then, too, imputability is a political and criminal justice decision. There is some
debate as to whether imputability in the case of someone under the age of 18 is a
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