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odds with some of the fundamental standards set forth in the international law of the human rights of
children and adolescents. The State of Chile must step up its efforts to ensure that these critical
standards are duly upheld by all public authorities; otherwise, it would be breaching its international
responsibility.
Firstly, at the most basic level, the application of Law 18.314 to a person under the age of 18 years old
implies accepting that a child can be considered a terrorist. In the view of the author of this concurring
opinion, even though a child may be the actual perpetrator of conduct matching the legal definition of
terrorism, his level of volition and maturity, in principle, precludes him from being considered anything
other than a victim of what is most definitely criminal manipulation by groups or individuals who pursue
the political objectives which, by definition, characterize violent terrorism. The political connotation and
structural definition of the crime of terrorism, along with the elements of motivation and predetermination
by which it is characterized, make it impossible for a child or teenager to be considered a terrorist.
Application of an anti-terrorist statute, such as Chile’s, is also at odds with the principle of protection of
the rights of children and adolescents in conflict with the law. In fact, Chile’s anti-terrorist law is
particularly severe and has been designed to provide a more forceful response to particularly serious
criminal acts; anti-terrorist criminal legislation, therefore, is the most restrictive tool available to the State
to suppress conduct that strikes at society as a whole. In juvenile criminal law systems, however, it is
quite the opposite; there must be a less forceful and more careful response in determining punishments,
which must be predicated on a lower level of punitive action, avoid the deprivation of liberty, be geared
toward social reintegration and, thus, allow for as much contact with the family, community and school, as
possible. The application of anti-terrorist legislation to children and adolescents is diametrically opposed
to this and, therefore, to the very logic upon which systems of juvenile criminal responsibility are built.
Any child or adolescent who comes into conflict with the law enjoys several internationally recognized
minimum rights; children and teenagers who break criminal law must be dealt with under special systems
of criminal responsibility. International rules and standards applicable to juvenile justice are enshrined in
the Convention on the Rights of the Child, as well as in other international instruments, such as the
United Nations Standard Minimum Rules for the Administration of Juvenile Justice, the United Nations
Rules for the Protection of Juveniles Deprived of their Liberty, and the United Nations Guidelines for the
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Prevention of Juvenile Delinquency.
In order for a special system of criminal responsibility to be implemented, special rules of procedure and
sentencing, as well as limitations on the deprivation of liberty, must apply to children and adolescents.
According to the UN Committee on the Rights of the Child, the guarantees established in the Convention
on the Rights of the Child pertaining to juveniles who allegedly have violated criminal laws, or who are
accused of or plead guilty to violating criminal laws, fully respect their procedural rights, the development
and implementation of measures for dealing with children in conflict with the law without resorting to
judicial proceedings, and the use of deprivation of liberty only as a measure of last resort. The
Committee notes that the administration of juvenile justice must promote, inter alia, the use of alternative
measures such as diversion and restorative justice, consistently taking into account the best interests of
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the child.
A special law establishing the limits and characteristics of criminal responsibility of juveniles,
Law 20.084 of 2007, has already been enacted by the Chilean State. Under this law, the Chilean State
can criminally prosecute and punish children 14 to 18 years of age, in a manner that is consistent with
international standards: avoiding deprivation of liberty, ensuring due process, and making sure that
punishments are aimed at social reintegration of juveniles. Instituting criminal proceedings against
indigenous children and adolescents under the procedure set forth in Law 18.314, which significantly
restricts the scope of the minimum guarantees which constitute due process, is difficult to reconcile with
these internationally recognized principles, as explained in the merits report of the instant case.
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United Nations 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. 4.
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United Nations 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. 1, 3.