84
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her private life.
In this regard, the Committee on the Rights of the Child has emphasized that “a key
condition for a proper and effective implementation of these rights or guarantees is the quality of the
persons involved in the administration of juvenile justice. The training of professionals, such as police
officers, prosecutors, legal and other representatives of the child, judges, probation officers, social
workers and others is crucial and should take place in a systematic and ongoing manner. These
professionals should be well informed about the child’s, and particularly about the adolescent’s physical,
psychological, mental and social development, as well as about the special needs of the most vulnerable
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children, such as, (…) children belonging to racial, ethnic, religious, linguistic or other minorities (…).”
Respect for the right of indigenous children to be heard and for their opinions to be taken into account, in
accordance with Article 12 of the Convention on the Rights of the Child, is equally as important. The
Committee on the Rights of the Child has explicitly stated on this topic that “with regards to the individual
indigenous child, the State party has the obligation to respect the child’s right to express his or her view in
all matters affecting him or her, directly or through a representative, and give due weight to this opinion in
accordance with the age and maturity of the child. The obligation is to be respected in any judicial or
administrative proceeding. Taking into account the obstacles, which prevent indigenous children from
exercising this right, the State party should provide an environment that encourages the free opinion of
the child. The right to be heard includes the right to representation, culturally appropriate interpretation
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and also the right not to express one’s opinion.” The Committee has also reminded States parties that
pursuant to Article 12 of the Convention on the Rights of the Child, “all children should have an
opportunity to be heard in any judicial or criminal proceedings affecting them, either directly or through a
representative. In the case of indigenous children, States parties should adopt measures to ensure that
an interpreter is provided free of charge, if required, and that the child is guaranteed legal assistance, in a
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culturally sensitive manner.”
It is noted that some of the Mapuche juveniles being prosecuted under the anti-terrorist law are currently
being held in preventive detention, which goes against the grain of the international standards that are
binding on the Chilean State. The rule of deprivation of liberty as a last resort stems from the need to
protect the right to development of children and adolescents in conflict with the law. In the view of the
Committee on the Rights of the Child, “the use of deprivation of liberty has very negative consequences
for the child’s harmonious development and seriously hampers his/her reintegration in society. In this
regard, article 37 (b) explicitly provides that deprivation of liberty, including arrest, detention and
imprisonment, should be used only as a measure of last resort and for the shortest appropriate period of
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time, so that the child’s right to development is fully respected and ensured.”
The Committee has
further emphasized that “the leading principles for the use of deprivation of liberty are: (a) the arrest,
detention or imprisonment of a child shall be in conformity with the law and shall be used only as a
measure of last resort and for the shortest appropriate period of time; and (b) no child shall be deprived of
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his/her liberty unlawfully or arbitrarily;”
that “the States parties should take adequate legislative and
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other measures to reduce the use of pretrial detention;” that “the duration of pretrial detention should be
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UN Committee on the Rights of the Child: General Comment No. 10 (2007)- Children’s Rights in Juvenile Justice. UN
Document CRC/C/GC/10, April 25, 2007, pars. 40-67.
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UN Committee on the Rights of the Child: General Comment No. 10 (2007)- Children’s Rights in Juvenile Justice. UN
Document CRC/C/GC/10, April 25, 2007, par. 40.
289
UN Committee on the Rights of the Child: General Comment No. 11 (2009)- Indigenous Children and their Rights
under the Convention. UN Document CRC/C/GC/11, February 12, 2009, par. 38.
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UN Committee on the Rights of the Child: General Comment No. 11 (2009)- Indigenous Children and their Rights
under the Convention. UN Document CRC/C/GC/11, February 12, 2009, par. 76.
291
UN Committee on the Rights of the Child: General Comment No. 10 (2007)- Children’s Rights in Juvenile Justice. UN
Document CRC/C/GC/10, April 25, 2007, par. 11.
292
UN Committee on the Rights of the Child: General Comment No. 10 (2007)- Children’s Rights in Juvenile Justice. UN
Document CRC/C/GC/10, April 25, 2007, par. 79.
293
UN Committee on the Rights of the Child: General Comment No. 10 (2007)- Children’s Rights in Juvenile Justice. UN
Document CRC/C/GC/10, April 25, 2007, par. 80.