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K. Prevention, investigation, punishment and reparation for rights violations
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In addition to the investigations and punishments triggered by the independent supervision mechanism or the complaint mechanisms referred to in this report, it is necessary to reaffirm the obligation of States to act ex officio to prevent, investigate, prosecute, punish and redress any human rights violations of children in residential care centers or institutions.524 As for the duty to prevent and investigate, the Court has held that “the duty to guarantee the rights enshrined in the Convention is not limited to the existence of a legal system designed to allow the fulfillment of such duty, but also entails the need to adopt government policies which ensure the effective guarantee for the free and full exercise of human rights,” and that, in that regard, “one of the conditions to effectively guarantee the right to life and personal integrity is the compliance with the duty to investigate the violation of such rights, which is derived from Article 1(1) of the Convention, in conjunction with the substantive right which should be preserved, protected or guaranteed.”525
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Consequently, it is the duty of the State to commence ex officio and without delay, a serious, fair and effective investigation; this investigation should be carried out with all available legal means and be aimed at establishing the truth, and the investigation, prosecution and punishment of all persons who are liable for the acts, particularly when State officials are or may be involved ,526 and persons acting on behalf of or in the performance of duties belonging to the State, such as the case of residential care centers and institutions for children separated from their parents.
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All instances of infringement or violations of children’s rights at residential centers or institutions must be brought to the attention of the competent authorities so a timely investigation may be carried through and, when so required, the determination of responsabilites and imposition of appropriate sanctions: criminal; civil , including those for damages or injunctive relief; administrative (such as revoking licenses, imposing fines or closing the facility or institution); professional sanctions (e.g. a note in an employee’s personnel file, dismissal, being barred from working with children), as well as other actions designed to order changes in the facility or Institution.527 The sanctions set forth under legislation must be appropriate and take into account the seriousness of the misconduct.
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Additionally, the Commission has stated that pursuant to the general guarantees set forth in Articles 1(1) and 2 of the American Convention, States must not only refrain from carrying out practices that are in violation of human rights, but must also take positive measures to protect and preserve those rights. The Commission deems it fitting to stress that States must focus their efforts on avoiding the repetition of reported incidents, which may entail taking administrative measures with regard to the alternative care center or institution, and the way it functions, in order to make sure that similar incidents do not occur again, as well as conducting adequate supervision.
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The Commission recalls the obligation to ensure the immediate protection of the child, in particular, taking into consideration that the child is living in the custody and care of an alternative care center or institution in a setting that has given rise to a violation of his or her rights. Accordingly, all adequate measures must be taken to make sure that the violation of rights ceases with respect to the child that has reported it, as well as with respect to other children who may have been exposed to a similar situation. Concurrently, measures must also be taken to ensure that the child is not subjected to stigmatization, harassment or retaliation as a consequence of his or her complaint. Decisions must be made with the greatest alacrity possible and investigation procedures must adequately take into consideration the best interests of the child, in particular, extreme care must be taken to avoid subjecting the child to further harm or re-victimization through the process of investigation or by placing the child’s safety at risk. Towards this end, all parties are obliged to invite and give due weight to the child’s views.528 In this regard, it is recommended that States take into consideration the content of the United Nations “Guidelines on Justice in Matters involving Child Victims and Witnesses of Crime.”529
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Such investigations must be conducted by qualified professionals who have received role-specific and comprehensive training for this purpose, and in a particularly expeditious and diligent manner in order to successfully gather and not render meaningless any relevant evidence for the investigation. The Commission stresses that rigorous, but child-sensitive, investigation procedures and protocols must be put into place, in order to help properly identify instances of violence and help provide evidence for administrative or judicial proceedings, as the case may be.530 The Commission recommends States to adopt an adequate gender approach, in particular, when conducting investigations into acts of sexual violence.
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In keeping with the consistent legal precedents of the Court and the Commission, States must attempt to restore, when possible, the violated right and provide reparation for the damage caused by it.531 Particularly, children who have been victims of violence or of violations of their human rights must receive the appropriate care, support and compensation. The Commission highlights the obligation to ensure the suitable measures of recovery and rehabilitation required for the child who has been a victim of violence or any other violation of rights.532 As was noted by the Independent Expert for the U.N. Study on Violence against Children, legislation usually focusses on the regulation of sanctions and penalties, while recovery, reintegration and redress receive much less attention.533 In the view of the Commission, this is a concerning fact and it finds that States must make every effort possible to ensure adequate assistance and recovery for children who have been victims of violence, or whose rights have been violated, at a residential care center or institution. The consecuences of violence, neglect, or other violations of the rights of a child in care have a negative bearing on the child, which can remain for life, should he or she not receive adequate attention.
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The Commission also recalls that in instances where children belong to minorities, such as indigenous children, whose rights have been systematically denied to them, it may be necessary to provide collective forms of reparation, particularly when these practices have been the result of government policies.534
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The Commission stresses as well that States must ensure access to justice and due process of the law within the framework of proceedings for cases of human rights violations of children, which take place in alternative care center and institution settings.
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The Commission recalls the right of children to participate and to be heard in any proceeding affecting them, including those pertaining to the prosecution of the individuals responsible for violations of their rights in the context of the care received by them at a residential center or institution. Toward this end, the right of the child to be heard and to have a qualified attorney to provide legal assistance must be respected in the framework of administrative or judicial proceedings, as was raised in similar points made above in this report.
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The Commission notes with concern that only a few States have provided statistics on the existence and number of sanctions linked to investigations for violations of rights taking place at alternative care centers or institutions; and that some States, such as El Salvador, reported that said information is not available. The State of Chile, for example, for 2010 has reported 10 situations of sexual abuse between peers and 2 by staff themselves; while another 16 instances involved situations of mistreatment. According to the response of the State, in all of these instances, investigations were conducted and the case file was brought to the attention of the judicial agency, “as appropriate;” it reported that, as a consequence of the outcome of the investigation, the officials were removed by the authority from their position.
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In short, States must act in keeping with their duty to prevent, diligently investigate and punish any violation of the human rights recognized by the Convention and domestic law, as well as attempt, when possible, to restore the violated right and, as warranted, provide reparation for the damages resulting from the violation.535 These obligations are especially relevant under the provisions of Article 19 of the American Convention, Article VII of the American Declaration and all other provisions of the international corpus juris.
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