accused of, or recognized as having infringed the penal law without resorting to judicial
proceedings, whenever appropriate and desirable,” and therefore, they are to take “measures
involving removal from criminal/juvenile justice processing and referral to alternative (social)
9
services.” Among other things, it prevents the stigmatization of such children and adolescents.
Submitting the Mapuche children and adolescents to judicial criminal procedures, as the first resort
of authorities, amounts to disregard for this international obligation by the Chilean State.
The Convention on the Rights of the Child, as interpreted by the Committee on the Rights of the
Child, provides for several fundamental principles regarding the dignified treatment that must be
accorded to children and adolescents in conflict with the law: these principles include: (i) treatment
that is consistent with the child’s sense of dignity and worth –“this inherent right to dignity and worth
[which] has to be respected and protected throughout the entire process of dealing with the child,
from the first contact with law enforcement agencies and all the way to the implementation of all
10
measures for dealing with the child;” (ii) treatment that reinforces the child’s respect for the human
rights and freedoms of others–a principle that “requires a full respect for and implementation of the
guarantees for a fair trial (…). If the key actors in juvenile justice, such as police officers,
prosecutors, judges and probation officers, do not fully respect and protect these guarantees, how
can they expect that with such poor examples the child will respect the human rights and
11
fundamental freedom of others?;” (iii) treatment that takes into account the child’s age and
promotes the child’s reintegration and the child’s assuming a constructive role in society – a
principle which “must be applied, observed and respected throughout the entire process of dealing
with the child, from the first contact with law enforcement agencies all the way to the implementation
12
of all measures for dealing with the child,” and which means that “all professionals involved in the
administration of juvenile justice be knowledgeable about child development, the dynamic and
continuing growth of children, what is appropriate to their well-being, and the pervasive forms of
13
violence against children;” and (iv) prohibit and prevent all forms of violence in the treatment of
14
children in conflict with the law. When interventions are carried out in the context of a judicial
procedure, the Committee on the Rights of the Child has demanded that “pursuant to article 40 (1)
of CRC, reintegration requires that no action may be taken that can hamper the child’s full
participation in his/her community, such as stigmatization, social isolation, or negative publicity of
the child. For a child in conflict with the law to be dealt with in a way that promotes reintegration
requires that all actions should support the child becoming a full, constructive member of his/her
15
society.”
So, when the competent authority institutes judicial proceedings, the principles of a fair and just trial
must be fully applied. The Committee on the Rights of the Child has further noted that “the juvenile
justice system should provide for ample opportunities to deal with children in conflict with the law by
using social and/or educational measures, and to strictly limit the use of deprivation of liberty, and in
9
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. 24.
10
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. 13.
11
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. 13.
12
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. 13.
13
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. 13.
14
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. 13.
15
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. 29.