E/CN.4/2004/3/Add.3
page 21
73.
Particular attention should be paid to compliance with the Convention on the Rights
of the Child with regard to the practice of arresting and detaining juveniles. The
provisions of the international instruments regarding the minimum age of criminal
responsibility should be observed. The practice of detaining children for their own
protection and of detaining child beggars and street children should be reviewed, and the
practice of taking them to police stations should be stopped. The judiciary should be
invited to review the performance of judges who keep children in detention for months
without giving them a hearing. The executive should review the situation of children in
youth custody centres. A distinction should be made between the treatment of children in
conflict with the law, treatment of children at risk or in irregular situations and treatment
of children with special needs. Above all, there is a need to review whether it is necessary
and appropriate to place such children in detention.
74.
The Government should study carefully the police practice of detaining individuals
involved in social protest, particularly the piqueteros who blockade roads and occupy
public spaces. A distinction should be made between cases in which such actions are
peaceful and those in which violence is used, and it should always be borne in mind that the
protests emanate from sectors where jobs have been lost owing to the serious recession that
Argentina has been experiencing for the past four years. The legitimate rights of the third
parties affected need to be reconciled with the unrestricted observance of the freedom of
expression, freedom of assembly and freedom to demonstrate, as guaranteed by
international law.
75.
An effective judicial remedy should be provided for administrative orders for the
detention of foreigners with a view to their expulsion from the country. Any person
detained for reasons related to immigration should have an opportunity to request a court
to rule on the legality of his or her detention before the expulsion order is enforced. The
current practice of detaining foreigners for reasons related to immigration together with
individuals charged with ordinary offences should be halted.
Notes
1
See, for example, the judgement of the European Court of Human Rights in case
No. 24/1986/122/171-173, dated 6 December 1988, in which the Court declared that:
“Mr. Barberà, Mr. Messagué and Mr. Jabardo thus had to face a trial that was vitally important to
them, in view of the seriousness of the charges against them and the sentences that might be
passed, in a state which must have been one of lowered physical and mental resistance. Despite
the assistance of their lawyers, who had the opportunity to make submissions, the circumstance,
regrettable in itself, undoubtedly weakened their position at a vital moment when they needed all
their resources to defend themselves and, in particular, to face up to questioning at the very start
of the trial and to consult effectively with their counsel.” Series A, vol. 146, para. 70.
2
Article 316 of the Code of Criminal Procedure applicable in the Federal Capital. The codes of
criminal procedure followed in other provinces contain similar provisions.
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