5
performance by the authorities involved in it. Such measures are, essentially, acts
and guarantees of due process-. This is especially the case with respect to minors,
who are in a situation of special defenselessness and vulnerability and who therefore
face a specific and greater risk of abridgment of their fundamental rights and of
detriment to their existence, sometimes irreparably.
19.
Said controls, operating for specific purposes, always entail the presence and
intervention of authorities or private individuals in support of the minors and to
represent or protect their rights and interests. In accordance with this set of control
measures, the next of kin or representatives or legal guardians of the minor must be
immediately notified of his or her detention, as well as his or her attorney –and, in
any case, the court-appointed defense counsel who may act immediately-, the consul
of the State that he or she is a national of, the judge who must rule on legitimacy of
the detention and justification of the proceeding, the physician who will certify the
physical and psychological conditions of the minor and oversee the development of
his or her situation at the detention center, and the social worker or assistant who
will help establish and maintain access to the minor by those who can provide him or
her care and protection.
20.
Precautionary and coercive measures –first of all, the detention itself- must be
organized pursuant to criteria that ensure that it is reasonable, necessary, and
proportional, bearing in mind the exceptional nature that any precautionary
restriction of rights must have in the legal order of a democratic society. Complaints
have often been filed against certain practices of collective detention –called razzias,
among other names-, which are based on the unsustainable logic of general charges,
independent of individual responsibilities. If restriction of a right must be the
consequence of an offense defined by law, and the responsibility of the person is
strictly individual, coercive and precautionary means must also be based on actual
occurrence of behaviors defined and forbidden by the general rule and on individual
considerations that establish a clear and proven link between the individual offender
and the measure that restricts his or her rights.
21.
Implementation of coercive measures, in themselves a delicate and dangerous
matter, especially when they pertain to personal liberty, must take place in
appropriate physical spaces, which do not worsen the measures or make them
extreme, adding to their natural consequences other harmful effects. They must also
be entrusted to persons who have been duly selected and trained for this task, under
rigorous control and supervision.
22.
The Inter-American Court of Human Rights has maintained that the State
plays the role of guarantor, with the respective obligations, regarding the legally
protected interests and rights of those under custody by the State itself. This position
as a guarantor entails a certain duty of care, which as I stated before is reflected in
actions and omissions required to fulfill the latter responsibility in each specific case
according to its circumstances. This is not merely a matter of inferring consequences
of the general duty of public authorities of providing security and protection to those
subject to its jurisdiction, but also one of establishing the specific, direct and
inescapable nature of this duty in the case of those subject, in the most intense and
complete manner, de jure and de facto, to the powers of public authorities exercising
custody of those persons or control of their specific situation (a concrete duty of care
in both cases) even when they are entrusted to a third party.
23.
As establishments and as systems, prisons and detention and “treatment”
institutions for minors fit within the category of “total institutions,” where existence