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109. Chapter V of this instrument contains in its articles all the material concerning the "representation of minors". This is the responsibility of special procurators, appointed by the Supreme Court of Justice from among persons with the same qualifications as those required for a juvenile magistrate. In places where there are no juvenile courts, the role of the procurators is played by the attorneys of the Departmental and Sectional Courts. The Act provides that the duties of minors' procurators shall include the following: (a) To be a party in proceedings relating to minors; (b) To ensure that the individual safety and dignity of the child are not diminished by judicial decisions or by acts of other authorities; (c) To follow up the treatment to which the minor has been subjected and to review it in terms of the progress made in readapting the minor, suspending it whenever it no longer has a purpose and returning the child to his or her family circle; (d) To initiate before the common courts actions arising from offences and misdemeanors against minors, except in connection with private offences; (e) To promote, on behalf of the minor, applications for maintenance and those for the ending of parental power or guardianship and administration of goods; (f) To intervene in proceedings for divorce, nullity of marriage and dissolution of marriage by mutual consent, as representatives of the minors, whenever such aid is needed; (g) To represent minors in proceedings for the recognition of children, legal emancipation or to remove children from the personal care of their parents; (h) To represent the interests of minors in proceedings for adoption and in actions to establish paternity; and (i) To engage in any other action for the protection of minors which a prudent administrator would deem fit. 110. In order to complete the information concerning existing legislative measures to represent minors in judicial actions, we may include the legal provision which, within the framework of the Office of the Attorney-General of the Republic (Organization) Act, states "Article 20: it is the duty of the Public Prosecution Section to: ...(5) submit complaints and accusations on behalf of minors who, having been the passive subjects of offences resulting from private action, have not been granted the protection of the courts as a result of negligence, carelessness or the poverty of their parents or legal representatives". 111. Administrative or infrastructural measures to implement some of the legislative measures include, with particular reference to the ancillary organizations to the juvenile court and to the minor who is deprived of his or her family environment, custodial, observation and guidance centres, namely: (a) Custodial centres: (i) Two centres for minors of the male sex, one at Tegucigalpa and the other at San Pedro Sula; and (ii) A custodial centre for minors of the female sex at Tegucigalpa; (b) Observation centres: two centres, one for minor males and the other for minor females, both in Tegucigalpa; and (c) Guidance centres: (i) Four centres in the Department of Francisco Morazán, which deal with children having serious problems, including Jalteva Juvenile Guidance Centre, for male juveniles, located in Jalteva village, Municipality of Cedros, and the Támara Juvenile Guidance Centre, for female minors, located in Támara village, Central District, which has a nursery attached to house inmates' children up to three years of age; and (ii) Two centres in San Pedro Sula, Department of Cortés, one of which caters for minor males and the other for minor females; (iii) Two centres which look after minors with lesser problems, catering for minors of the male and female sexes, respectively, between the ages of 8 and 18 years, both of them situated in the town of Comayaguela, Central District, one of which is called the New Horizon Centre, and the other the Humuya Guidance Centre; (iv) Open methodology centres, catering for minors of both sexes engaged in peddling, between the ages of 7 and 17 years, one of which is located in Tegucigalpa and the other in San Pedro Sula; they are called "Child Peddler Centres"; and (v) The La Estancia Centre which caters for children who have made their homes in the streets, giving them systematic attention - in the streets - through group and individual therapy both for themselves and, where it is possible to identify them, their families. 112. The following subprogrammes are applied in these centres: scholarships, microventures and family reunion. In support of the work of these centres, there is a unit to follow up the minors when they leave and have no family environment to return to or place in which to settle. The methods used involve what are called juvenile hostels and the microventures already mentioned. 113. These centres furnish the following forms of care and attention: (a) The prime necessities of housing, clothing and food; (b) Health requirements: general medical and dental services; (c) General basic training, moral, civic and Christian guidance and directed recreation; and (d) Vocational training in the following courses: tailoring, carpentry, shoemaking, bricklaying, industrial mechanics, horticulture, music and art, dressmaking, confectionery, manual crafts, beauty treatment, typing and domestic service. 114. There is also the Special Investigation and Rehabilitation Centre (CIRE) which caters for children aged from 3 to 12 years with hearing, speaking and slow learning problems, providing a diagnostic service, treatment and special education. For children and young persons aged between 12 and 25 years, having hearing and speaking problems, or slight or moderate mental retardments, there is also the Special Training Centre (CECAE) , which, gives them guidance and vocational training. (...) J. Periodic review of placement (art. 25) 124. As a State subject to the rule of law, Honduras is and always has been determined to protect children and to ensure that children enjoy without any discrimination whatsoever the protection set forth in the international agreements that watch over their rights. Consequently, the right to periodic review or the child's right to have his or her treatment monitored, according to article 25 of the Convention, is a right that is recognized in Honduras. 125. Consequently, the National Social Welfare Board, the organ responsible for programmes for the care of minors, not only has its own boarding institutions under its direct management and supervision but also coordinates and, in one way or another, supervises or obtains information concerning social programmes for the benefit of minors lodged in philanthropic institutions which are not government-controlled. However, for economic reasons, this monitoring work is not carried out with the periodicity and systematic efficient and reliable procedures that might be desired. Source: Initial reports of States parties due in 1992: Honduras, UN Doc. CRC/C/3/Add.17, paras. 20-23, 27, 74-79, 92, 100-114, 124-125, 183-200 (10 June 1993)2nd State Party Reports[Parts of State party report relating specifically to relevant legal minimum ages, and articles 37 and 40] II. DEFINITION OF THE CHILD (...)
321. Legal advice in the sense of a consultation and the right to a representative is valid when sought by a child in any judicial or administrative process; this right may be exercised through the parents or legal representatives. "Article 218.- Authorities arresting a child shall report the fact without delay to the National Social Welfare Board or the Public Ministry, so that the child may receive the legal advice he or she needs. This provision shall be understood without prejudice to the right of the parents or legal representatives to appoint a private defender. Article 219.- Any child who has or is alleged to have committed an offence shall be assisted by a defender. The latter shall be appointed by the child's parents or legal representatives, ex officio by the judge who is hearing the matter or by the National Social Welfare Board." (...) 329. With regard to criminal responsibility, the new Code on Children establishes clearly that children under the age of 12 years may not be charged, are not criminal and may not be subjected to a children's system of justice. From 12 to 18 years the special system of justice for children who break the law will be applied, with all its guarantees of due process. (Article 122 of the Constitution and articles 180 et seq. of the Code on Children and Adolescents.) 330. In the new Code on Children, deprivation of liberty is the final measure that may be applied by the children's judge and this depends on the age at which a child may answer to the special system of justice for children, that is, from 12 to 18 years. 331. Children who break the law may be arrested from the age of 12 to 18 years in accordance with the formalities established by the law. A child may request asylum or internment at a social welfare centre if the need for this can be shown to the authorities in question (articles 85, 208 to 218 of the Code on Children; internment 150(c), 182, 187(c), 188(h), 196, 198, 199, 206, 262, 263, 264, 265, centres for children at social risk, 139 of the Code on Children). 332. With regard to capital punishment and life imprisonment, the law of the special system of justice for children is not autonomous, since it depends on the sentences established in the Penal Code for adults. This may give rise to excesses or confusion. However, there exists a rule that the maximum sentence that may be handed down to children who break the law is eight years. Thus the possibility of these penalties being applied is excluded. 333. The giving of evidence by children in court in civil and criminal cases or to other relevant authorities will be limited only by the degree of maturity of the child or his ability to form his own judgement about matters that concern him. 334. With regard to lodging complaints or seeking redress before a court or other relevant authority, appearance in proceedings in our system of written law is possible through a legal representative or proxy. 335. This is subject to the same conditions, i.e. that a legal representative or proxy may only act with the support and consent of the child's parents. 336. Participating in administrative or judicial proceedings affecting the child is guaranteed, the limiting factor being the child's ability to form his own judgement and his degree of maturity. (Code on Children, articles 60, 87, 181, 199(e), 226.) (...) IV. CIVIL RIGHTS AND FREEDOMS (...) H. The right not to be subjected to torture or other cruel, inhuman or degrading treatment or punishment (art. 37(a)) Criminal law provisions to punish torture and other cruel, inhuman or degrading treatment or punishment and procedures of complaint and remedies for children 436. The Office of the Commissioner for Human Rights in relation with NGOs is making efforts in this field. A centre for treatment and prevention of torture has been set up, supported by a Danish organization. The Code on Children governs physical, psychological and mental ill-treatment and abuse. (...) VIII. SPECIAL PROTECTION MEASURES (...) B. Children in conflict with the law 1. The administration of juvenile justice (art. 40) 596. Among the legislative measures adopted, we may mention the approval of the Code on Children and Adolescents, which in its Title III, articles 180 to 268, covers the treatment of minors and the application of correctional measures for their rehabilitation. 597. The Code follows the principles of the Convention on the Rights of the Child and international norms relating to: - United Nations Guidelines for the Prevention of Juvenile Delinquency (The Riyadh Guidelines); - United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules); - United Nations Rules for the Protection of Juveniles Deprived of their Liberty. 598. The principles established in the Code on Children and Adolescents are the following: (a) Children who break the law are not subject to ordinary or common penal jurisdiction and may only be deduced to have the responsibility foreseen in the Code on Children and Adolescents. (b) The measures applicable in the Code shall only apply to children over 12 years who commit an offence or breach of the law. Minors under 12 are not delinquents and if they commit a breach of the law only measures of special protection shall be applied, depending on the case, and comprehensive reeducation shall be arranged. (c) No child shall be charged with responsibility for breaches of the law that are not set out in a penal law at the time of commission of the offence or subject to a jurisdiction other than the competent children's courts. (d) In special children's justice the same guarantees of process shall be respected as are set out in the Constitution and other national legislation in force. In particular: presumption of innocence, the right to defence, not to be tried in absentia, to be released if in the view of the competent authority there are no rational indications for commission of the offence, to receive assistance and legal advice, not to testify against themselves, not to be subjected to any violence to force them to testify, since statements obtained by illicit or violent means in the absence of their legal representative have no legal validity, compliance with the terms and legal time limits established in the law, for the sentence to be based on the proof accepted, for the punishment to be in proportion to the damage caused, for no measures other than those established in the present Code to be applied and to be able to appeal against the sentence if so wished. (e) Children shall not be subjected to more than one procedure for the same acts. The new law should be applied to them if it is more favourable, their educational and leisure activities shall not be suspended for the application of a correctional measure, their parents or legal representatives shall be present at each stage in the process, unless this is prejudicial, they shall be personally identified if this is not already the case, be compensated for material or moral damages suffered, and they may petition the Public Ministry to act to deduce the responsibilities of judicial or administrative officials who have abused their authority or violated their rights. (f) When adults have participated in the commission of an offence, the judge shall be obliged to communicate their participation to the corresponding jurisdiction for their responsibility to be deduced. The arrest of child offenders and presumed offenders 599. The arrest of child offenders is one of the most controversial aspects of the rights of children, due to the manifest social consequences of juvenile delinquency and brusque reactions to it, generally designed to repress an existing situation without arriving at a solution of the problem or its underlying causes. 600. Arrest in these cases means direct contact between the authority and the child. This contact is very often uncontrolled and has a varying impact on the formation and development of the child, so that the Code on Children foresees a series of provisions governing the process of arrest as the first contact with a child offender. The offender caught in the commission of an act contrary to the law is the case in which greatest aggressivity is likely to be shown by the offender to the person arresting him and by the latter to the child. Hence it is necessary to determine clearly the scope of the rights of the child and the functions of the authorities responsible for arrest. 601. It is highly relevant to remember that the legal provisions of other juridical instruments are also applicable to child offenders where the Code makes no provision and where it can make no contradiction because they are of a higher hierarchical authority, as established in the Constitution of the Republic. In these cases the constitutional provisions on the right to personal freedom and restrictions on detention shall serve as guidance, together with the provisions of binding international instruments, such as the Convention on the Rights of the Child and the American Convention on Human Rights; at the same time the guidance provided by the Rules for Law Enforcement Officials and other instruments also remain valid. 602. With regard to paragraph 2 of article 40, all national penal legislation in force in Honduras is in accordance with these principles, from the Constitution to the penal law currently valid (see annex on the international norms in force in Honduras and also articles 180 to 187 of the Code on Children and Adolescents). The rights of child offenders 603. A substantial advance in the matter of fundamental rights and the rights of children, two intimately related legal fields, is the recognition of the rights of the child in the processes to which it is subjected, known as guarantees of due process. Guarantees are mechanisms which prevent transgression of the rights of persons and the Code on Children makes reference to the guarantees established in the Constitution of the Republic. 604. Among the rights that must be guaranteed to achieve not only the welfare of persons but also the successful application of justice in specific cases, we may mention: - The principle of legality, whereby it is understood that only typical figures of offence as expressly set out in the law may be applied, through a competent authority, by means of procedures expressly established in law for the case in question and in application of the sanctions previously established in the law. - The presumption of innocence. - The right to defence. - The right not to be tried in absentia. - The right to be released immediately if there are no indications of participation in the offence. - The right to receive immediate professional legal advice and assistance. - The right not to testify against oneself. - The right for terms, time limits and procedural formalities to be fulfilled in the manner foreseen in the law. - The right for the sentence to be based on the proof presented. - The right for the sanction to be proportional to the damage caused. - The right to appeal against adverse decisions. - The right not to be subjected to proceedings more than once for the same facts. - The right to have the new law applied if it is more favourable. - The right to be compensated for the material or moral damages caused to the child. - The right to bring the relevant proceedings to deduce the responsibility of officials who have abused their authority or violated their rights. 605. In addition, since children are in unequal conditions as compared with adults, in application of the principle and right of equality, children subject to a judicial process shall have the following rights: - The right for their participation in the educational system and their leisure and recreational activities not to be affected by the sentence or to be affected as little as possible. - The right for the child's parents or legal representatives to be present at the various stages of proceedings, except where this would be prejudicial. - The right to personal identification or to be given an identification if lacking one. 606. With regard to paragraph 3 of article 40, see article 180 of the Code on Children and Adolescents. Persons under 12 years of age 607. The Code on Children reaffirms the concept that persons under 12 years of age shall be excluded from any penal consideration, that is to say, from any criminal jurisdiction, only being given measures of protection. Persons under 12 years of age are taken as being in the process of acquiring knowledge of the world around them, in the process of learning the rules of the game - so to speak - in the environment in which they are beginning to move, in the process of transition from being beneficiaries of a series of family, social and State obligations to consideration of their person as active and participating subjects, with responsibilities appropriate to their age. 608. On the other hand, everyday practice in criminal law excludes the possibility of considering these persons as delinquents, essentially for two key reasons: the first, statistical, being that the number of persons under 12 years of age committing offences is almost nil; and secondly, that of the intention to commit an offence, being that these persons do not have the intention of committing an offence, but in the majority of cases are used by delinquent adults or compelled by their own needs to commit actions that from their standpoint mostly imply the only available means of survival in the face of social indifference which discriminates against them, rejects and stigmatizes them. 609. Persons under 12 years of age are therefore excluded from criminal responsibility. Child offenders against criminal law 610. These comprise persons over 12 and under 18 years of age who commit breaches of criminal law, within the sphere of application of a special competence, children's justice, applied by the children's courts. 611. No consideration has been given to the possibility of reducing the age limit for breaches of the law, the object of which would be to apply adult jurisdiction to persons under 18, since it is not thought that this is of decisive significance in relation to the problem of delinquency. On the contrary, it is thought that adolescents are precisely in a highly delicate period of formation and development and would be negatively affected by treatment in any way comparable to that given to adults. Hence persons between the ages of 12 and 18 years are subject to a special jurisdiction if they commit offences against criminal law. Ways in which child offenders can avoid judicial process 612. One of the most important principles of the new children's law is that it prescribes judicial intervention only for those cases which deserve it. Many of the social situations in which children found themselves placed must now look to other instances outside the judiciary for solutions (families, community and civil society). Even with the Code on Children the stifling judicial atmosphere can be felt because of the number of cases referred to it. It is thus a duty of society to fulfil its social responsibilities to children, one of the most urgent being to facilitate the counselling of families, communities and nongovernmental services in the solution of social problems that do not warrant judicial intervention. It is hoped that with the application of the provisions of the new Code the work of the courts will become less clogged. 613. Apart from these ways of avoiding judicial intervention, there are others for cases where this is foreseen, as is the case for certain minor offences. To this end, the possibility has been established of avoiding judicial process by three means: conciliation, the criterion of appropriateness and remission. These three possibilities must of course depend on the availability of resources, either central or local. 614. Conciliation is not intended to breach the rights of the child but to ensure full respect for them. Thus conciliation must be avoided where it would be more prejudicial to the child than the actual legal proceedings or their consequences. Unless this is so, the objective of this procedure in the context of the integral protection of the child would be lost. 615. Conciliation may take place at any moment in the case or before the case is opened, provided that it takes place in respect of offences in which there has been no violence committed against property or persons. It shall be requested of the children's judge by the Public Ministry when: (a) it is a case of actions or omissions in which the responsibility of the child is minimal; (b) the child has done everything within his power not to commit the offence or to limit its effects; (c) the child has been seriously affected by the action or omission; and (d) the offence committed has not caused any significant social impact. 616. Remission: the judge may resolve that the child shall be obliged to participate in community programmes if he or his representatives consent, under the control of the institution in which this service is being given. 617. These possibilities of avoiding legal proceedings are conceived as formative factors for the child so that he is not criminalized. Conciliation is conceived to provide the possibility for understanding between the parties, when it would be more socially educational to reach conciliation than to continue with the legal proceedings. The criterion of what is appropriate is applicable for situations in which the offender's behaviour can be corrected, that is to say, he is offered the opportunity to correct himself. Remission is conceived as the application of a correctional measure of community origin that is better than the measures that might be imposed by the court, making a court case unnecessary. Measures applicable to child offenders 618. The Code on Children foresees the application of various types of measures in the case of child offenders: measures of protection foreseen for children under 12; the precautionary measures foreseen to ensure the presence of the presumed offender at the trial or other circumstances permitting justice to be done; and the correctional measures foreseen for children once they have been recognized as responsible for an offence against the law. (a) Measures of protection 619. Measures of protection are enforceable in various spheres of the special jurisdiction for children and adolescents in so far as they require protection on the understanding that a child may be amongst those committing the offence or those whose rights are threatened and/or violated. The measures of protection foreseen by the Code on Children may be listed as follows: (i) The general measures of protection established in article 92, which consist in: - entering the child in the civil registry; - enrolment and surveillance of the child's attendance and progress in the educational system; - ensuring that the child receives the treatment he needs; - surveillance of the behaviour of those responsible for the child's care; and - vigilance to ensure that the aggressors do not keep in contact with the child. (ii) The measures established in articles 102, 103 and 105 on authorization for a child to be brought in or taken out of the country; (iii) The measure established in article 145 for judgement by national judges; (iv) The measures established in articles 147 and 149 on the declaration of abandonment or social risk and search; (v) The measures established in article 150 on the child in situations of abandonment or danger, consisting in: - prevention or admonition of parents or legal representatives; - custody or personal care by the nearest blood relation in a position to provide it; - placement in a residential home; - placement in a substitute family; - deposit with a legally authorized private protection centre or with the National Social Welfare Board; - initiation of procedures for adoption; and - any other measure to ensure personal care of the child, meet his basic needs or put a stop to dangers threatening him. (vi) The measure established in article 169 on the ill-treatment of children; and (vii) The measure established in article 176 on substances producing dependency. (b) Precautionary measures 620. In exceptional cases the judges require measures that permit them to ensure the presence of the presumed offender at the trial. The grounds and duration of application of these measures [are] not left to the arbitrary decision of the judges, but must be for reasons that are really deserving, that is to say, must be well founded. This implies the following: (i) The preparation or training or those who exercise discretionary powers, so that they do so judiciously and in keeping with their respective functions and mandates. (ii) The existence of checks and balances to restrict any abuse of the discretionary powers and safeguard the rights of the presumed offender. (iii) The existence of concrete guidelines for the exercise of discretionary powers and the establishment of a system of review and appeal. 621. It should be emphasized that there are some adolescent behaviours that are threats or violations of their own rights and some adolescent behaviours that are threats or violations of the rights of others (acts of offence). In the first case the measures applicable are measures of protection, and in the second case, correctional measures. There is always the possibility of finding the same person in both situations, so that the application of measures of protection to presumed offenders should foresee the risk of relationship with other children who are not offenders. 622. Preference should be given to precautionary measures that best fulfil pedagogical needs and help to strengthen family and community bonds. When judges apply precautionary measures that prejudice the rights of the child, such as not being separated from his family without a reason founded on law, his defender, any other person in the system of justice or the child himself may request correction of this errancy, either as a defence of a legal order, as a defence of the child or in exercise of the right to petition. (c) Correctional measures 623. The Code on Children establishes a range of measures to be applied in the resolution of cases, depending on their particularities. These measures always possess some criterion by which authority may decide to apply one or other of them. By their very nature, correctional measures cannot be commuted or the object of a caution, since these options would invalidate their purpose. 624. The nine measures foreseen range from social family support to internment, with a series of intermediate measures where the one most in line with requirements for the application of justice, the needs of the child and most proportional to the offence should be chosen, endeavouring in all cases to keep the child in relations with his family. 625. Counselling and social support to the family is founded on the importance of the family as the centre of primary individual formation of persons. The State therefore has the obligation to place a high priority on the needs and well-being of the family and of all its members (article 11 of the Riyadh Guidelines), attempting to preserve the integrity of the family, including with the support of the social services of the community, since society in general also has the obligation to assist the family to provide care and protection and ensure the physical and mental well-being of children (article 12 of the Riyadh Guidelines). The social policy of the State on children should therefore contain elements of support for family environments of stability and well-being, avoiding the separation of children from their parents where it could be harmful. 626. The admonition is a call to attention. It is additionally intended to halt a possible process of dissociation and a deterioration in the child and his behaviour and prevent later and more serious consequences, that is, to prevent the child's offending conduct attaining levels of reincidence or repetition that go beyond society's possibilities for response. This measure has two facets, one directed to the child to correct his behaviour, and the other directed to the parents or legal representatives. The latter is very important, for in many cases the behaviour of children is due to the example they receive, so that the admonition to parents not only implies that they must correct their behaviour that is affecting the child but also shows them that they should pay more attention to the possible causes of that behaviour and look for better forms of solution. 627. The imposition of rules of conduct is not a faculty of unlimited discretion, but on the contrary, every rule of conduct dictated should possess a clear ground and determination of the results it is hoped to bring about in the behaviour of the child. Thus we may see that these measures affect precisely the fields of action that have great influence on the child, such as the school, the use of free time, the restoration of the role and responsibility to a person or institution, frequentation of certain places or persons that are or could be prejudicial, the habit of excessive mobility or the habit of certain particular vices. 628. Community service is social service to compensate for certain behaviour. It should be remembered in this case that the intention of the justice system is to look for pedagogical measures whenever possible, so that community service should be applied in cases where it serves this function in relation to the child, that is to say, not just as a punishment nor because the child prefers this type of measure to others, but because this rule of behaviour will be more appropriate to the objective of correcting the child's behaviour. 629. The obligation to repair damages is a measure used in special circumstances due to the fact that in most cases children are not able either to give a thing back, or to repair it, or to pay adequate compensation, especially because parents and civil proceedings originating from the acts largely fulfil this requirement. The possibility remains open, however, to apply this measure in situations in which the particular circumstances of the child permit it as a decision directly conveying the necessary pedagogical content so that it is a correctional measure and not simply a punishment or measure of repression. 630. Compulsory residence does not imply restrictions on freedom as such, but the minimum security of protection and care both of the child and of society. Determining the place and particular people with whom the child will live is seen as achieving a minimum of stability and security that may permit better conditions to develop for the adequate training of the child and for the social protection needed following the events. So this is not an arbitrary measure nor an excessive restriction of liberty, but rather a means of ensuring a minimum of conditions that all children should enjoy and all societies be able to provide, for the welfare of all. 631. Probation requires no further explanation, except in regard to the type of educational programme which the authority should ensure is beneficial and not prejudicial to the interests of both the child and society. Thus efforts should always be made to ensure that the programmes attended by the children have contents aimed at correcting in them the causes of their offending behaviour. 632. The regime of semi-liberty is applied in contrast to probation when there are cases in which greater control is deserved, without prejudice to the training activities supporting this measure, to observe the intentions of the system of justice for child offenders and for general welfare. 633. Internment is the measure applied exceptionally in the most serious cases. The Code on Children establishes clearly when it is applicable and when it is not. It is not correct to apply internment as a precautionary measure (to ensure the presence of the presumed offender at the legal proceedings) if the conditions or circumstances foreseen for its application as a correctional measure are not present. Internment should respect all the rights foreseen for children subjected to this measure, as stipulated in article 199 of the Code on Children. 634. These measures may be suspended, revoked or replaced by others, following professional study, and applied simultaneously, successively or alternately, in so far as this improves the treatment of the case and is of most benefit to the child and to society. It should in any case be remembered that the rights of child offenders should be at least the same as the recognized rights of adults. So that reference made by the Code on Children to broader branches of national and international legislation permits in the application of the law the recognition of other rights not established in the Code but found in other related legal instruments, such as the penal procedure law, in the case with which we are concerned, in so far as it is of benefit for the child. 635. Omissions have a procedure that is more expeditive than the process for acts typified as offences. The prescription in each case is clearly established in the Code in its article 204. The proceedings for the child offender 636. The proceedings for the child offender are in two parts: the preparation and the trial. 637. The preparatory stage implies the form in which action is initiated against the presumed offender, the opening of investigations and in general the accomplishment of the legal prerequisites necessary for a case to be opened against a child. If these prerequisites are not met the trial may not go ahead, since there are not sufficient grounds for it. At this stage there is always the possibility of applying relevant precautionary measures. In any case the criterion should apply that any measure to be imposed on the presumed offenders should be adequately justified and should not be mechanically applied or as an immediate or obligatory response to the case, but rather, measures should be preferred that do not imply separation of family or community bonds. 638. The proceedings established by the new Code are oral and take place in a reserved audience. The judge is the director of the audience and should follow the steps of procedure established in the new Code. The reserved audience is also divided into two stages for the effects of the interest of the proceedings, that is to say, there are two essential interests: to determine the existence of the act and the degree of participation of the presumed offender in it, and to determine whether or not any of the correctional measures foreseen by the law shall be applied. 639. When the responsibility of the child as an offender emerges in the proceedings, correctional measures are applicable subject to the criteria for their application in each case. The possibilities to appeal against the resolution also remain valid. 640. One of the greatest conflicts in the law occurs when the authorities have ordered something and it is not done, so that the new Code has a special paragraph referring to the execution of measures, both to avoid abuses of authority and evasion of responsibility on the part of the offender. The procedure for the restitution of rights 641. The procedure for the restitution of rights is intended to restore social rights and not just any right. To determine the rights to which this procedure is applicable, one must refer to the determination of social rights foreseen in the general doctrine of human rights. 642. In the Constitution of the Republic we see that social rights are established in a manner that is somewhat confusing, as this instrument includes in the chapter entitled "Of social rights" rights referring to the family, questions already governed by the legislation on that subject, so that it would be conflictive to try to apply the procedure with which we are concerned to these rights. But we also find in the Constitution of the Republic rights that are eminently social that have no procedures to assert them and which may be subsumed to the rights foreseen as social rights by the general doctrine of human rights. 643. Thus we may see, among these rights, the right to work and other labour rights, the right to social security, the right to health, the right to education, the right to culture and the right to housing. To these rights should be added the rights foreseen in the Code on Children. Then we should be adding the right to sport and free time, and the right to the environment and natural resources. 644. There is some confusion with the term "diffuse rights" as this suggests the possibility of a special category of rights as yet not clearly determined. This expression in fact does not refer to a special category of rights but to the action whereby this procedure is undertaken, it being the action and not the rights that is diffuse. The action is diffuse precisely because anyone can make use of it, even if they are not directly affected. Now this procedure applies to actions to ensure individual social rights, that is to say, the rights that should be recognized for a particular child, for what should be understood when article 266 of the Code refers to "actions that have the purpose of restoring to a child..." 645. The Code does not mention in general terms the application of this procedure for the prevalence of social rights that affect groups of persons or social sectors. The original intention of the existence of this procedure being precisely to address the problem of social rights not affecting particular people but groups of people, sectors or communities, it is necessary to remember in applying this procedure the spirit of the law in this case and to permit its application for this type of general purposes, so that this was considered to be the passing of procedural orders to ensure a result within a reasonably short period of time. 646. The children's courts run training courses on rights and the procedural part of the new system. The institutions responsible are the IDB, the Latin American Institute for the Prevention of Crime and the Treatment of Offenders (ILANUD), USAID, the Office of the Commissioner for Human Rights, CIPRODEH. 647. Among the progress achieved with the implementation of article 40 we may mention: - The enactment of the Code on Children and Adolescents with its procedural and dogmatic principles; - The appointment of nine children's judges and the progressive advance of this new jurisdiction; - The initiation of oral proceedings; - The open support of the Supreme Court of Justice to strengthen the children's justice system. 648. Among the difficulties encountered, we may mention the non-existence of programmes or specialized centres for the fulfilment of correctional measures (it is hoped that the IHNFA will soon become functional), needs for material and trained human resources for the system to function properly, and the coverage of the courts' jurisdiction which is still limited in relation to national requirements. 649. Among the objectives for the future, it is hoped to gradually create more children's courts at the national level, strengthen material and logistic support to the courts for the fulfilment of their commitments, and with the likely approval of the law on the IHNFA, successful creation of an adequate system for the treatment of child offenders. 2. Children deprived of their liberty, including any form of detention, imprisonment or placement in custodial settings (art. 37 paras. (b), (c) and (d)) 650. The legislative and other measures adopted in accordance with paragraph (b) of article 37 may be found in article 180 of the Code on Children and Adolescents. 651. In regard to the measures and mechanisms established to prevent children being deprived of their liberty, in relation to asylum-seekers and refugees, reference may be made to the reservations made by Honduras to the Convention relating to the Status of Refugees of 1951 (para. 584 supra). 652. With regard to indeterminate sentences, it should be noted that the maximum penalty applicable under the new system is eight years, to be reviewed on attainment of the age of 18 qears. 653. To monitor the situation of the children concerned, there is an assessment and diagnosis unit in each centre. 654. The National Social Welfare Board, the entity responsible for the administration of these centres, should monitor the evolution of the situation, determine the difficulties encountered and establish objectives for the future. 655. In regard to the number of children deprived of liberty, unlawfully, arbitrarily and within the law, as well as the period of deprivation of liberty, see para. 668 below. 656. In relation to paragraph (c) of article 37, the Code on Children and Adolescents is the statute applied. 657. The right of the child deprived of liberty to be separated from adults, unless this is considered contrary to the best interests of the child, is a constitutional principle and is developed by the new Code. Honduras was denounced because the judges, faced with the non-existence of adequate centres for the fulfilment of measures of special juvenile justice, sent them to centres for adults. This situation has been remedied through the redesigning and refurbishment of special centres run by the National Social Welfare Board. 658. In Honduras there are various projects intended to improve this type of centre. International cooperation, especially the European Union, is collaborating strongly. 659. There has been no regulation of the management of these centres in regard to the right of the child to maintain contact with his or her family through correspondence and visits. So far and as a result of the denunciations of national and international NGOs entry to these institutions has been permitted when required to verify conditions of treatment. The prosecution service and the Office of the Commissioner of Human Rights also make periodic visits to these centres. 660. The right of the child to complaints procedures is viable, but has never been used except through parents or representatives, because of the absence of regulations in these centres. 661. In regard to periodic review of the situation of the child and the circumstances relevant to his placement, the Code on Children contemplates this and it is actioned by the child or his representatives, or upon reaching the age of 18 years. 662. In regard to the right to education and health services, the Code contemplates these and they are provided in every custodial centre by the National Social Welfare Board. Institutional aspects 663. The Code on Children covers a point of great interest for everything to do with the rights of the child, since one of its main functions is to serve as a frame of reference for the activities or actions undertaken in this field. We may thus see that the standard for the work may derive in some cases from specific provisions clearly enunciated in various parts of the new Code, while we may also find in the last Title a series of general provisions that allow us to see the level of intervention that this instrument entails for each protagonist in the situation. 664. The institutional aspects cover both government agencies and agencies belonging to civil society. Of the former we may take the National Social Welfare Board to be the coordinating body, monitoring the smooth development of actions in favour of children. From this there stems a range of institutional interventions, from government bodies in the matters in which they are competent as well as from nongovernmental organizations and other bodies created or already existing at the community or local level. 665. The intervention of each of these bodies involves more than just treatment in the strict sense and goes on to involve actions of a preventive order, without which it will not be possible to obtain an improvement in the situation of children. Isolated work should also be left to one side, as an outdated part of the process of integrated protection of children, so that all sectors should try to adapt themselves institutionally to the new challenges in the Code. 666. In regard to the measures adopted in compliance with paragraph (d) of article 37 to ensure that the child has the right to challenge the legality of the deprivation of his or her liberty, see the paragraphs on the legal recourse permitted to offenders. 667. There is no time-limit for the decision on such actions. Nevertheless these petitions must be submitted and the judicial time-limit is three days. 668. We give below some statistical data on investigation and judicial activities carried out by the Public Ministry through its prosecution departments, both special and regional, in matters regarding children: (a) For the year 1995 669. The number of complaints referred to the Office of the Procurator for Minors and the Disabled in 1995 was two hundred and ninety-four (294) and includes the crimes of rape, incest, child stealing, abduction and rape, bodily harm, attempted homicide, corruption of minors, death threats, kidnapping of minors, disputed maternity and paternity, ill-treatment, losing of minors, irregular adoptions, abandonment of minors, refusal of family assistance, acts of lechery, illegal detention to the prejudice of minors, violation of the rights of the disabled, inter alia. 670. Cases are continually referred to the Department of Recruitment and Training while they are still under investigation, and also to the Directorate of Criminal Investigation. Cases seen by the Office of the Procurator for Minors and the Disabled in 1995
(b) For the year 1996 Offences committed against children - complaints received:
Most common offences:
Status of complaints at the end of the year:
Offences committed by children (offenders) Complaints received:
Status of cases at the end of the year:
(c) For the year 1997 (January-May) Offences against children: complaints received
Most common offences:
Status of complaints submitted:
Offences committed by children (offenders) Complaints received (Tegucigalpa) 299 Status of cases:
(d) Conclusions (i) The offences of ill-treatment and bodily harm are due in 70 percent of cases to: - problems of alcoholism and drug addiction on the part of the child's parents - distressing economic problems with repercussions on the child - physical or psychological ill-treatment of the child by step-fathers or step-mothers with no justification. (ii) 95 percent of the cases of rape of children are caused by: - problems of alcoholism or drug addiction on the part of some relative of the child - neglect by the parents in leaving their children alone - children out until late hours of the night in the streets or dangerous places. (iii) For the offences most commonly committed against children, the victims were girls in 56 percent of cases and boys in 44 percent of cases. 671. Among the progress achieved in implementing article 37 (b) to (d) we find: Progress - The approval of the Code on Children and Adolescents - International cooperation and the national resources that have been directed as a matter of priority to the achievement of decent conditions in accordance with valid international norms in the centres of rehabilitation or resocialization of minors deprived of liberty. - The existence of facilities, although they require physical repair to receive this population. - The training of personnel on the basis of the principles of the Convention and related international norms and the Code on Children and Adolescents. 672. The difficulties encountered in the application of the article are due to the fact that before the Code came into force Honduras did not really have a system of special justice for children who break the law. Nor was there really a system of resocialization and rehabilitation of child offenders. For this reason there are no centres that are altogether appropriate for their treatment, and it is necessary to finish refurbishing existing centres. Difficulties are also due to the lack of trained personnel to treat this population, the scarce material resources to offer a system of rehabilitation, and the fact that relations between the courts and the personnel in charge of the centres are not adequately governed and the centres regulated. 673. Objectives. Both the judicial authorities and the National Social Welfare Board are trying to initiate a total process of modernization of the legal aspect, human resources and material resources in the system for the treatment of child offenders. 3. The sentencing of children, in particular the prohibition of capital punishment and life imprisonment (article 39) 674. The programmes of the National Social Welfare Board establish measures in conformity with article 39 and in the light of paragraph 1 of article 40. 675. The draft of the law on the IHNFA also establishes mechanisms, programmes and activities to this end, and the education and vocational training to be given. Further information in the State party report relating to the administration of juvenile justice COMMENTS ON THE OBSERVATIONS AND RECOMMENDATIONS OF THE COMMITTEE ON THE RIGHTS OF THE CHILD (...) A. Progress made in social policies and the harmonization of legislation on the basis of the Convention on the Rights of the Child (...) 113. The special system of children's justice obeys the principles of the Convention on the Rights of the Child and related international texts. The new Children's Code introduces substantial changes; proceedings are now verbal at hearings that may be public or private depending on the case and have all the formalities and guarantees of due process. The coverage of the system in the country has gradually increased with the opening of new children's courts. 114. From two children's courts (Tegucigalpa and San Pedro Sula) when the first country report was submitted, five more courts have been created, giving priority to the towns with the most inhabitants: Santa Rosa de Copán, El Progreso, La Ceiba, Juticalpa, Choluteca. (...) 118. Creation of the Office of the Special Procurator for Children and the Disabled: this is one of the special offices of the Public Prosecutor's Office existing since December 1994 and its function is to carry out the actions foreseen in the laws on the protection of minors, the disabled and handicapped, and they have been organized and are functioning in accordance with the resources available to the institution. 119. Initially, the Special Procurator's Office dealt with the cases of children who were victims of common crime, taking penal action against their victimizers and also taking part in proceedings under the Law on the Jurisdiction of Minors in cases where children infringed laws of a penal nature. At present, we continue to hear all the charges for offences committed against children that are brought to our knowledge, and these are investigated in the shortest time possible and the corresponding criminal proceedings initiated and brought to conclusion in a definitive sentence. In addition to these cases, we are also hearing charges in relation to penal offences committed by minors under the age of 18 brought by citizens, in accordance with the provisions of the Code on Children and Adolescents, that has been in force since 5 September 1996. 120. The Office of the Special Procurator for Children and the Disabled has its headquarters in the city of Tegucigalpa and its staff comprise a group of six prosecuting attorneys (including the titular head) and twelve investigating officers, divided into two groups which deal with juveniles who break the law and juveniles who are victims of crimes. At present there are no regional offices in the interior of the country; actions relating to children in these places are carried out by attorneys assigned to the various towns of the country, with supervision and counselling to the extent possible from the Office of the Special Procurator. 121. The Office of the Special Procurator for Children and the Disabled has the following general functions: - To represent, defend and protect the general interests of society. - To collaborate and be vigilant to ensure rapid, correct and effective administration of justice, especially in the juvenile sphere. - To be vigilant to ensure respect for and compliance with constitutional rights and guarantees and respect for the Constitution itself and special laws for the protection of minors and the disabled. and the following specific functions: - To present cases with formal accusation on behalf of minors who have been the passive subjects of private offences, who may not have protection from justice on account of the negligence or poverty of their parents or legal representatives. To exercise all the actions foreseen in the laws for the protection of minors and the disabled. - To issue forensic reports, opinions or comments in cases where indicated by the law and regulations. - To bring penal actions ex officio in juvenile proceedings where required under the special law on minors. - To ensure prompt, expeditious and proper administration of justice and that the laws are faithfully applied in the courts and tribunals of the country in criminal proceedings and proceedings to do with public order and public morals. - To direct, guide and supervise the activities of the criminal investigation police, and the activities for which the forensic medical services are responsible. - To formulate reports to the appropriate instance against magistrates, judges and other officials and employees of the judicial power when they commit infringements that give rise to disciplinary sanctions. - To promote the necessary actions to ensure that the civil, penal, administrative or disciplinary responsibility incurred by officials or public civil or military employees in the exercise of their functions or in the course of their work is effectively assumed. - To work with the NGOs that work with children, and with the National Social Welfare Board, the Office of the Commissioner for Human Rights, the National Judicial Power of the Ministry of the Interior, the Ministry of Health, and others. (...) I. GENERAL MEASURES OF IMPLEMENTATION (...) A. Harmonization of national legislation and policy with the provisions of the Convention (...) (ii) Children in situation of conflict with the law15 177. The most significant reforms of the period are in the field of special justice for children: the system of juvenile justice, and the system or regime of deprivation of liberty. (...) (iv) Children belonging to minority or ethnic groups 179. Following the transformation of our national legislation with the adoption of the Code on Children and Adolescents (Decree 73-96), Honduras has created seven children's courts in areas with the highest population. Before the new Code the children's courts were applying the law of the Jurisdiction of Minors, which was not in harmony with the principles of the Convention. 180. One of the courts of special justice for children with the largest territorial and population coverage in Honduras is the Second Court of First Instance on Children in Comayaguela. To illustrate the principal problems to the Committee some statistics of different types of offences are given below. 181. Number of new cases since the month in which the new Code came into force in the Second Children's Court at Comayaguela:
182. The majority of offences have to do with the sale of drugs, injuries, robbery, theft of cattle, theft, damages, rape.17
183. The new system based on the Code on Children guarantees respect for the minimum guarantees of due process and is based on international standards relating to special justice for minors. In practice at the national level and according to data processed by the National Social Welfare Board (JNBS) in a recent period of study, of every 330 adolescents deprived of liberty only 5 percent received correctional measures from the judges. Between 50 and 55 percent enter and leave the educational establishments and the rest remain subject to precautionary measures for three months to one year. 184. Proceedings are oral and are conducted in the presence of the accused child, the judge, the procurator and a legal representative where one is appointed. Hearings are public or reserved as the case may be and the judge must appreciate the burden of proof and apply correctional measures, deprivation of liberty being the most extreme option applicable. It should be noted that judicial decisions based on the principles of the Convention and related international norms are not only applied in the children's courts but also in the family, labour and civil courts and wherever and when ever children are involved as parties to the proceedings, and at the level of public administration. 185. The children's courts are applying the new Code on Children which contains the principles of the Convention on the Rights of Children of 1989. The first legal proceedings under this Code were carried out in January 1997. 186. There are at the moment difficulties with applying alternative measures to the deprivation of liberty at the specialized centres for correctional measures. The government with the support of cooperation agencies such as the European Commission is working to put these programmes into practice. Already such measures have been tried as semi-liberty, assisted liberty, counselling and social support to the family, obligation to repair damages, warning, etc. See the section on children deprived of liberty and the new programmes of the National Social Welfare Board (JNBS). (...) III. GENERAL PRINCIPLES (...) D. Respect for the views of the child (art. 12) (...) 406. All children subject to any kind of judicial or administrative procedure have the basic right to be informed of the acts with which they are being charged and to be informed of the consequences that may derive from their effects, and have the right to be heard and to have their opinions taken into account in deciding on the measure or actions to be applied. 407. There are legislative measures which permit the child to express his or her views, in line with his or her evolving faculties, on: - the family environment, as contemplated in the Code on Children; - school: the Ministry of Education promotes and ensures that morazanic schools and schools governors are operational; - the administration of justice among minors: this is a fundamental guarantee regulated in the Code on Children; - internment and life in institutions and centres of care: this is regulated by the applicable procedures of the National Social Welfare Board; - procedures for seeking asylum: there is no specific legislation governing asylum, but by analogy the principles established in the Code on Children and Adolescents described above are applied. 408. In any judicial or administrative proceedings involving a child, the child shall have the right to be heard and to have a legal representative, who shall be appointed by his or her parents or representatives or shall be appointed ex officio by the Public Ministry or the judge hearing the case. 409. Any child who breaks the law shall take part in the process to which he or she is subject if he or she is of sufficient maturity. As may be applicable, he or she shall have the right from the start of the investigation to be represented and to be heard, and to propose proofs and remedies, without prejudice to the other rights set out in this code (see procedure and guarantees of due process). (...) 411. Magistrates in general, family court judges, juvenile court judges, probation officers are all trained by the school of the Judicial Power. It is reported that in the various courses given consideration has been given to the questions of the rights of the child and the new system of children's justice with both national and international speakers. Courses have been conducted jointly with the Office of the Commissioner for Human Rights and NGOs. Seminars on the Code on Children and related legislation have been included in training programmes since the approval of that important body of law. 412. The Office of the Commissioner for Human Rights and the National Social Welfare Board are the institutions that have centralized the training of police officers, prison officers, teachers, health workers and other professionals. 413. Courses on the Convention are included in the curricula of: - faculties of law: the curriculum includes the subject of legislation on minors; - teacher training schools: courses and seminars have been given; - faculties of medicine and medical institutions and schools of nursing: for both types of professionals the Paediatric College of Honduras and the Inter-American Children's Institute have been making this type of effort; - schools for social workers, departments of psychology and sociology: social sciences units not only carry out training courses and seminars on the subject but also have research units and projects for children in situations of social risk. Source: Periodic reports of States reports due in 1997: Honduras, UN Doc. CRC/C/65/Add.2, paras. 113-114, 118-121, 177, 179-186, 321, 329-336, 406-409, 411-413, 436, 596-675 (20 February 1998) |