liberty, including arrest, detention and imprisonment, should be used only as a measure of last
resort and for the shortest appropriate period of time, so that the child’s right to development is fully
21
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 his/her liberty unlawfully or
22
arbitrarily;” that “the States parties should take adequate legislative and other measures to reduce
23
the use of pretrial detention;” that “the duration of pretrial detention should be limited by law and
24
be subject to regular review;” that “decisions regarding pretrial detention, including its duration,
should be made by a competent, independent and impartial authority or a judicial body, and the
25
child should be provided with legal or other appropriate assistance;” and that “every child deprived
of his/her liberty has the right to prompt access to legal and other appropriate assistance, as well as
the right to challenge the legality of the deprivation of his/her liberty before a court or other
26
competent, independent and impartial authority, and to a prompt decision on any such action.”
C. Criminal Prosecution of Indigenous Children and Teenagers
The Committee on the Rights of the Child has explained that indigenous children, as provided in the
Convention on the Rights of the Child, require special measures of protection in order to fully enjoy
27
their rights;” it has noted that “indigenous children face significant challenges in exercising their
28
rights,” and has held that “contrary to article 2 of the Convention, indigenous children continue to
29
experience serious discrimination in a range of areas.”
Hence, it has asserted that indigenous
30
children have the inalienable right to be free from discrimination, and has noted that “indigenous
children are among those children who require positive measures in order to eliminate conditions
that cause discrimination and to ensure their enjoyment of the rights of the Convention on equal
31
level with other children,” and these measures must include whatever is necessary to ensure their
access to culturally appropriate services in the area of juvenile justice. In every act, Chilean
authorities must be respectful of the specific cultural characteristics of indigenous children and
adolescents, by making sure that they have full access and enjoyment of their traditions, language
and culture.
21
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.
22
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.
23
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.
24
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.
25
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. 81.
26
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. 82.
27
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. 5.
28
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. 5.
29
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. 5.
30
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. 23.
31
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. 25.