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The Commission basis its comments on the understanding that the rules governing behavior, community life and discipline applied in care centers must be positive and constructive so as to instill in the children, at all times, a sense of responsibility, respect for others,, and awareness of the existence of rules of conduct that must be obeyed for the proper exercise of one’s rights and the rights of others. The Commission feels, as does the Committee on the Rights of the Child, that the idea of comprehensive education is important for children, as part of their human, civic and social training644; based on this, the Commission understands that passing on the values for life in community and rules of conduct respectful of others are training and educational tools that the institutions must offer the children in a positive, constructive, participatory and non-discriminatory manner in line with human rights. The disciplinary rules applicable to children in the case of behavior that is contrary to the rules of conduct and community life in the institution must take these goals and principles into account; as stated in its Report on corporal punishment and human rights of children and adolescents, the Commission feels that discipline must always be administered in a respectful manner consistent with the human rights of children and adolescents, their dignity and personal integrity.645
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Nevertheless, information gathered in a number of investigations shows that the violence and the use of force to which children and adolescents are exposed in residential institutions also stems from the application of certain disciplinary measures or methods used to control the children at those centers.646
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The Commission deems it important to stress that, although the use of certain disciplinary measures or measures for controlling the behavior of children may be acceptable, these measures must be applied under specific circumstances, especially for the purpose of preventing more serious consequences –for example in order to keep the child safe and protect him/her or other children from harm, and to maintain order and safety-- within specific limits, strictly respecting human rights. The Court and the Commission have extensively developed the obligations of the State to protect people from mistreatment and, most especially, have spoken out in connection with people deprived of their liberty.647
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The Commission considers it necessary for the States to use their legislation to set clear limits to the disciplinary systems at these institutions and for them to acknowledge that all measures involving cruel, inhuman or degrading treatment, or any form of physical or mental abuse or harm, such as corporal or humiliating punishment, placement in a dark cell, solitary confinement, restraint or immobilization as punishment, reduction of food or limiting or denying the child contact with family members, or any other measure that could jeopardize the child’s personal integrity or his/her mental or physical health, his/her right to education and to contact with members of his/her family, are strictly forbidden.648 All collective disciplinary measures and sanctions must be expressly forbidden as must multiple sanctions for the same infraction.649
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The Committee on the Rights of the Child, in turn, has referred to disciplinary procedures in the following terms:
Any disciplinary measure must be consistent with upholding the inherent dignity of the juvenile and the fundamental objectives of institutional care; disciplinary measures in violation of Article 37 of CRC must be strictly forbidden, including corporal punishment, placement in a dark cell, closed or solitary confinement, or any other punishment that may compromise the physical or mental health or well-being of the child concerned.650
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In this regard, Guideline 96 of the U.N. Guidelines for the Alternative Care of Children stipulates that :
All disciplinary measures and behavior management constituting torture, cruel, inhuman or degrading treatment, including closed or solitary confinement or any other forms of physical or psychological violence that are likely to compromise the physical or mental health of the child, must be strictly prohibited in conformity with international human rights law. States must take all necessary measures to prevent such practices and ensure that they are punishable by law. Restriction of contact with members of the child’s family and other persons of special importance to the child should never be used as a sanction.
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The Commission understands that state legislation regarding the operation of residential care centers and institutions must require that these facilities adopt disciplinary measures that are in strict compliance with the law and respect the human rights of the children and adolescents. Most especially, the law must require that disciplinary rules adopted by the institutions include the following: a) the behavior that is considered a breach of discipline b) the nature and duration of the disciplinary sanctions that may be imposed; c) the competent authority in charge of imposing the sanctions; d) the competent authority to whom an appeal against the sanction is to be addressed651 or to whom a complaint or accusation should be presented; in addition, the rules must be in writing and be displayed in areas of the center where they are visible, and be available in language appropriate for children so as to ensure that every person knows and understands them. Each child should receive a copy of the disciplinary rules upon his/her arrival at the center; this document must clearly state that violence is banned as form of discipline. Children accused of committing disciplinary infractions must be informed of the fact without delay and in such a way that they understand the infraction they are accused of having committed and the applicable punishment.652 In general, the Commission considers that disciplinary measures and the procedures for their application are justified provided they are stipulated in the rules, have a legitimate purpose from the standpoint of the best interests of the child and the goals of the special measures of protection, and that they are appropriate, necessary and proportional, and are strictly in keeping with human rights.653 Insofar as the legitimate purposes of disciplinary measures are concerned, the Commission understands that they are intended to protect children, and maintain order and safety at the care s. In addition, enforcement must take the child’s upbringing into account regarding the values of respect, living in community and civic-mindedness.
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As stated in its Report on the Human Rights of Persons Deprived of Liberty in the Americas, the Commission considers that:
Prison authorities should make sure disciplinary procedures are used on an exceptional basis, and only resort to them when other means prove to be inadequate to maintain proper order. Only behavior that constitutes a threat to the order and safety should be defined as offenses warranting disciplinary action.654
In the end, disciplinary systems will be effective to the extent that they are suitable for fulfilling their objectives by striking a balance between human dignity and proper order; and by promoting an overall climate of respect in which inmates develop a sense of responsibility toward complying with the rules.655
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Nevertheless, the Commission views with concern that in several States’ answers to the questionnaire, they reported the lack of any regulated disciplinary processes or stated that there are no disciplinary measures in the institution, yet at the same time they report a number of measures that range from loss of “privileges,” such as watching television, to others restricting the children’s freedom and include suspension of outings for recreational activities, or the assignment of work at the center itself; some reports also speak of punishments consisting, for example, of kneeling for one hour or four hours, or standing still, physical and humiliating punishments, taking away food, not being allowed to attend classes or depriving them of visits by family members or visits to the family home.656 Moreover, when the rules of the center include a description of behavior constituting an infraction, the Commission notes that the categories tend to be quite broad, leaving a great deal of discretionary power in the hands of staff members when it comes to imposing punishment657; this, in the opinion of the Commission, is contrary to to the possibility for the children to be aware of and understand what behavior is forbidden and the possible punishment involved; this can lead to abuse, arbitrary decisions, violations of the child’s right to personal integrity, the use of violence, and the infringement of other rights such the right to an education, to maintain family ties, and, moreover, lead the child to feel that this type of punishment is permissible.
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Based on the information gathered by Commission for the preparation of this report, it was found that serious challenges remain in connection with this issue. In the case of Guyana, for example, the information gathered by the Commission shows that only 16% of the institutions have written disciplinary rules that are made available for the children’s knowledge; moreover, 55% of the institutions allow corporal punishment as a form of punishment, and only 70% of the institutions in Guyana expressly forbid placing children in isolation as a disciplinary measure.658
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In addition, the Commission has also spoken out several times concerning the importance of having properly trained and qualified staff to attend to the children and adolescents being cared for at these institutions, that they be cognizant of human rights and the limits to disciplinary measures and the use of force. In addition, staff should also have the skills needed to deal with tension and inter-personal conflicts that may arise without resorting to disciplinary sanctions.659 Although the Commission was not made aware during the drafting of this report of any specific situations in which control over discipline, activities involving custody and surveillance and the taking of disciplinary measures had been delegated to the adolescents themselves at these institution, the Commission deems it advisable to reiterate that this practice is contrary to international rules governing human rights.660
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On the issue of corporal punishment, the Commission has stated that it is forbidden as a disciplinary punishment as it is considered contrary to the dignity of the child and is a violation of Articles 5(1) and 5(2) of the American Convention.661 The Commission is of the opinion that neither should disciplinary measures be humiliating or degrading for the children subject to them,662 since the purpose is to maintain order and safety in the institution. In particular, the Commission already expressed its concerning regarding the situation found in the region on the matter of imposing physical and humiliating punishments at care centers and institutions, and emphatically recommended that all States that have not yet done so, include in their legislation a clear and express prohibition, that leaves no room for doubt, of the use of this form of violence against children as a disciplinary measure.663 Nevertheless, the Commission notes with concern that not all the States in the region have prohibited all forms of physical punishment or humiliating treatment as a form of discipline in the context of alternative care in centers and institutions, or continue to follow the practice, with corporal punishment and humiliation as one of the commonly imposed forms of punishment. The Commission agrees with the Court in reminding the States that the adoption of legislation and measures of other kinds become even more necessary when there is evidence of practices of any kind that are contrary to the American Convention.664 The Committee on the Rights of the Child, in turn, repeatedly recommends that in their legislation the States prohibit corporal punishment at institutions; this has occurred, for example in the case of the Bahamas665, Belize666, Chile667, Cuba668, Dominica669, Guatemala670, Saint Lucia671 and Trinidad and Tobago672, among other States in the region. In some cases the prohibition of corporal punishment has been found in regulatory norms, as in the case of Paraguay673.
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The information received by the Commission shows that some institutions persist in the use of practices contrary to the aforementioned rules banning corporal and humiliating punishment, such as: the use of sticks to keep order, leaving children in the sun without food when they have disobeyed, or application of substances that hurt the child’s skin on naked bodies.674 There have also been reports of the existence of cells for the punishment of those who have committed violent acts. These practices are even more serious in the case of mentally or intellectually disabled children and adolescents due to the impact it has on them.675
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With regard to the use of force, restraint and other measures of control over children, these should be completely forbidden, except when strictly necessary to prevent physical or psychological harm to the child or others, and be used when no other method is possible, pursuant to law, in a manner that is reasonable, proportional and respectful of the child’s fundamental rights.676 This means ruling out, without any exceptions whatsoever, the deliberate and punitive use of force to cause pain or humiliation as control measure. In this regard, the Commission agrees with the Committee on the Rights of the Child in its statements regarding the use of force, the circumstances under which its use may be justified, and the conditions and limits for its use, namely that:
(...) there are exceptional circumstances in which teachers and others, e.g. those working with children in institutions and with children in conflict with the law, may be confronted by dangerous behavior which justifies the use of reasonable restraint to control it. Here too there is a clear distinction between the use of force motivated by the need to protect a child or others and the use of force to punish. The principle of the minimum necessary use of force for the shortest necessary period of time must always apply. Detailed guidance and training is also required, both to minimize the necessity to use restraint and to ensure that any methods used are safe and proportionate to the situation and do not involve the deliberate infliction of pain as a form of control.677
Restraint or force can be used only when the child poses an imminent threat of injury to him or herself or others, and only when all other means of control have been exhausted. The use of restraint or force, including physical, mechanical and medical restraints, should be under close and direct control of a medical and/or psychological professional. It must never be used as a means of punishment. Staff of the facility should receive training on the applicable standards and members of the staff who use restraint or force in violation of the rules and standards should be punished appropriately.678
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In many States in the region there is a strong tendency to administer psychiatric medications to children who are in care institutions as a means for achieving control and submission. Based on information received by the Commission, these medications are generally prescribed by the medical staff at these institutions, with dosage depending on the behavior of the specific individuals, without any diagnosis of psychiatric pathologies or complex psychological afflictions that would justify medical treatment with these drugs. The use of drugs, not as part of a therapeutic treatment, but as a way of controlling children, is a violation of their personal integrity, health and dignity. As reported to the Commission, children and adolescents are being medicated with psychiatric drugs to help them manage to “tolerate” the institution.679
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According to information received by the Commission, in some States, such as Argentina, psychiatric medication is administered at 68% of institutions providing all types of care680. The problem of the high level of psychiatric medication used is not limited to any one specific type of care, rather it is widespread and found in institutions of all kinds. In some types of care, the percentage is as high as 93% of the institutions, as is the case of specialized care.681 The Commission stresses that the use of drugs and medication as a form of restraint or control must be expressly forbidden682; use of these should only be allowed for medical and therapeutic reasons and they should be prescribed by authorized specialists.
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As for solitary confinement or isolation, international human rights law683 considers that solitary confinement measures are strictly forbidden in the case of children and adolescents, be it as a disciplinary measure or as a so-called “form of protection”684 for the child. The Commission distinguishes the exceptional use and justified means of control over the child, under the parameters already exposed, from solitary confinement or isolation. The position of the Commission in this regard is in line with the position of the Committee on the Rights of the Child and the United Nations Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, who emphatically stated:
“... the imposition of solitary confinement, of any duration, on juveniles is cruel, inhuman or degrading treatment and violates Article 7 of the International Covenant on Civil and Political Rights and Article 16 of the Convention against Torture.”685 And in his recommendations he states that: “States should abolish the use of solitary confinement for juveniles and persons with mental disabilities. Regarding disciplinary measures for juveniles, the Special Rapporteur recommends that States should take other measures that do not involve the use of solitary confinement.”686
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As part of the sub-regional consultations undertaken for the preparation of this report, the Commission has been informed on the use of solitary confinement measures in several of the States on this continent. In some cases, evidence of this type of situation has prompted the intervention of the judiciary and caused the administrative authorities to begin monitoring the institutions.687 The Committee on the Rights of the Child has also expressed its concern at the use of solitary confinement as a disciplinary measure at institutions.688 The Commission finds that disciplinary measures involving isolation have not been abolished in many of the Member States and that, even where they are prohibited, in actual practice they continue to be used. Furthermore, the use of euphemisms has also been found to be common practice, when referring to solitary confinement, with terms such as “reflections rooms” and “separation from the group,” among others. Regardless of the name used, the Commission reiterates, as already stated in its report on Juvenile Justice, that under international human rights law this type of punishment is strictly forbidden in the case of children and adolescents.689
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Therefore, the States must expressly prohibit disciplinary measures and behavior-control measures that violate the dignity and personal integrity of the child or any measures that violate international human rights law. In addition, the law must regulate the use of force at residential care centers and institutions, following the principles of exceptional use and of the minimum use necessary, for the shortest period of time possible, and only when strictly necessary for the protection of the child or others; moreover, their use must be under the direct supervision of a specialist in medicine or psychology.
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In addition, the States Parties must regulate criminal and disciplinary sanctions, or those of any other kind, as appropriate, to be used against staff responsible for failure to comply with the above-mentioned limitations involving disciplinary systems at residential care facilities institutions; moreover, these aspects must be taken into account when reviewing the authorization and licensing of institutions as part of the States’ ongoing duties of supervision. It is also essential that the prohibition of all cruel, inhuman, humiliating and degrading forms of punishment, as well as the sanctions that can be imposed on staff in the event of violations, be widely disseminated among the children and those working at the institution.690
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So as to ensure that in actual practice the application of sanctions at institutions does not violate the principles and limitations mentioned above, the authorities at institutions must keep standardized records of the disciplinary measures applied, identifying the child, the punishment given , the duration and the authority/ staff who ordered it. Furthermore, in compliance with the obligation to supervise, both the regulations governing the disciplinary system at institutions as well as actual application of the system, must be reviewed periodically by higher‐level authorities that can objectively assess their suitability and effectiveness, and identify possible patterns of abuse or arbitrariness in the application thereof.691
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Lastly, the Commission considers it essential that the institutions have specialized technical personnel trained to work with children and that in-house rules of functioning, protocols for action and professional codes be drawn to ensure the proper functioning of the institutions, a good community life and safety in the facilities, so that the lives and personal integrity of the children are not at risk.
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