Introduction
In January 2025, the Committee on the Rights of the Child was called to analyze in which measure the Ecuadorian Justice System, in its various tiers of domestic courts, was sufficiently specialized to justify the measures applied to the child by the higher-level courts.
Although a non-admissibility ruling was pronounced by the Committee, a concurrent decision sustained that the author could have brought another argument to sustain his claim under article 37(b) of the Convention on the Rights of the Child (CRC) for setting a minimum sentence in contravention of the principle of detention as a measure of last resort. Interestingly, no revision of the non-admissibility ruling was pronounced, in spite of previous discussions by the Committee on the applicability of iura novit curia axiom (which means the possibility of Judges to define and interpret the law, independently from the legal arguments raised by the parties before them).
In what follows, I will bring some factual information about the case. Next, I will address both the minimum sentence rule in the context of proportionality and discretion, and also the applicability of iura novit curia by the Committee.
Facts
ADHL faced a statutory rape charge under article 171 of the Organic Comprehensive Criminal Code of Ecuador for having a sexual relationship with a 12 year old girl. The trial court held ADHL guilty and imposed domiciliary imprisonment for two years among other community-based measures.
In the appeal from this decision to the Specialized Division for Family, Children, Adolescents and Juvenile Offenders of the Provincial Court of Guayas, the prosecutor argued that the rehabilitative measures imposed by the trial judge were inconsistent with article 385 (3) of the Code on Children and Adolescents, which provides that: “In the case of offences punishable [under the Criminal Code] by imprisonment for over 10 years, a reprimand and placement in an institution for 4 to 8 years shall be applied.” The appeal court then set the maximum term of deprivation of liberty, which was 8 years.
Finally, the Specialized Division for Family, Children, Adolescents and Juvenile Offenders of the National Court of Justice annulled the appellate court’s decision for lack of substantiation and amended the rehabilitative measures imposed to placement in an institution for 5 years, together with various other measures.
Issues at stake
ADHL argues that the lack of specialized judges in the Provincial and National Courts impacted the harshened measures imposed on him in response to his act, violating article 40 (3) of the Convention on the Rights of the Child and due process. He also argues that institutional imprisonment violates the ultima ratio principle and the inadequate conditions of the internment institutions would impact his personal development.
The Committee acknowledged the existence of a specialized youth justice system, both at trial and Provincial Court on Family, Child and Adolescent matters. For the Committee, there was insufficient substantiation of any infringement of legal guarantees due to the alleged lack of specialization determined a non-admissibility reasoning.
However, in a concurrent opinion, Committee Member Ann Skelton understood that it should be considered “whether the practice of charging children under the article 171 of the Organic Criminal Code of Ecuador, which carries a lengthy minimum sentence, is compliant with article 37(b) to ensure detention as a measure of last resort, and for the shortest appropriate period of time”.
In her opinion, on the one hand, it should be recognized as a positive factor that the harshness of the very high minimum sentence of imprisonment, ranging from 19 to 22 years, for the offence is attenuated for children by Article 385(3) of the Code on Children and Adolescents, which provides for a reprimand and placement in an institution for four to eight years in cases where an adult would be sentenced to ten years or more. On the other hand, she considers that there is a major disconnect between Article 37(b) of the CRC and this legal regime, which starts from the premise of a long minimum sentence and then allows courts to work their way backwards by providing justifications for lower sentences.
In her opinion, any minimum sentence set in the law that restricts the sentencing discretion of the Court, thus making detention of 4 years the first resort, rather than allowing for detention as a measure of last resort, would then infringe article 37(b) of the CRC.
Regarding minimum sentences, under discussion is the debate on proportionality and discretion in youth justice and the extension of the exceptionality principle (detention as a last resort measure) between law and judicial reasoning.
However, if a member of the Committee acknowledges that the facts could be approached under another argument, it is disputable whether iura novit curia could or could not be invoked to justify the analysis of the facts under a different legal perspective.
Minimum sentence, proportionality and discretion
The reasoning for definition of a minimum response to any kind of offence has been a disputable matter for centuries. At its core, the concern is about proportionality.
It is the well known Hobbes’ utilitarian argument (then adopted by Pufendorf and Bentham) on deterrence, sustaining that the fear of greater harm should exceed the benefit of breaking a covenant and this imbalance would compel individuals to obey the law and should determine any reasoning on establishing the measures of punishment. In contemporary terms, still based on a reformed utilitarianism, Luigi Ferrajoli´s theory on penal guarantees advocates that any kind of response should have a double preventive function, both negative: the general prevention of crimes and the general prevention of arbitrary or disproportionate punishments. The first function marks the minimum limit and the second the maximum limit of penalties. One reflects the interest of the non-deviant majority, the other the interest of the defendant and of all those who are suspected and accused as such.
In criminal law, this nexus between utilitarianism, contractualism, conventionalism and rationalism is expressed in the grounds for prohibitions and penalties as instruments for the protection of citizens. However, since its inception, youth justice was based on a critical approach to the classical comprehension of contractualism. If contractual theories, such as Hobbes, Rousseau or even Kant, considered the offence a violation of common-wealth and thus the offender an enemy of the whole, allowing his/her exclusion from the community, the approach towards children was always different. Mead, in an analysis of the psychology of punitive justice in the beginning of twentieth Century, argued that youth justice aimed to leave the hostile reference of criminal justice to constitute, if not a friendly-justice, at least a non-hostile modality (Mead, 1918). As the child is still a citizen in formation, he/she could not be considered an opponent of the pact, and irrespective of the youth justice’s conception at stake, every effort must be made to support him/her becoming a ‘good’ citizen.
Not for other reason CRC’s article 40 express the equation terms to be balanced: the promotion of the child’s sense of dignity and worth and the reinforcement of the respect for the human rights and fundamental freedoms of others. Or, in the terms expressed in the Beijing Rules, an equation between the well-being of the child and the proportionality to the circumstances of both the offenders and the offence (Rule 5.1).
Therefore, the issue at stake is whether the law should or not have a standard on minimum proportionality.
In his seminal study, Ferrajoli observes that while punishment may be measurable, the same cannot be said of the offence itself; even for adults, it would be difficult to sustain that a minimum sentence involving deprivation of liberty could be considered reasonable and proportionate. Any State response to an offence should take into account the likely informal reaction of the offended party or less organized members of society. Even within a reformed utilitarian framework, it would be preferable to leave the determination of the minimum response to judicial discretion.
For children, deprivation of liberty as a measure of last resort and for the shortest appropriate period of time (CRC article 37 (b)), invoked in the Committee’s reasoning, aims to restrict State response in quality (preference on community-based measures), in quantity (institutionalization as a "last resort") and in time ("minimum necessary period") (Beijing Rule 19). This triple limitation was fundamental in the Havana Rules to emphasize that the length of the sanction should be determined by the judicial authority, without precluding the possibility of his or her early release (rule 2).
However, only with General Comment 24 (2019) on children’s rights in the child justice system there has been an explicit reference in para 78 that mandatory minimum sentences are incompatible with the child justice principle of proportionality and with the requirement that detention is to be a measure of last resort and for the shortest appropriate period of time.
Proportionality and discretion are thus correlated, requiring not only a variety of measures for disposition, but also legally determined criteria for judicial reasoning, allowing checks and balances in order to curb any abuses of discretionary power and to safeguard the rights of the young offender (Beijing Rule 6). Considering that the case occurred in a Latin-American country, it is important to acknowledge that the limitation of discretionary power is still a challenge in the region, according to the Interamerican Commission on Human Rights as (paras 355).
For this reason, the Iberoamerican Standards on Determination of the Measure emphasize that it is necessary to ensure that the jurisdictional activity of determining the sanction is sufficiently framed by the legislator, guaranteeing equal treatment and legal certainty. For this purpose, it is necessary not only to establish principles that govern that activity, but also some rules. These are, based in three main criteria on proportionality: the legitimacy of the aims to be achieved, that this is strictly necessary for this purpose (its necessity, taking into account the other alternative means available to do so (necessity judgment)) and, finally, its strict proportionality, considering whether it is not excessive in view of the relative importance of the aim sought and the intensity of the impact on the rights of the youth. The limitation of fundamental rights should, therefore, observe minimum requirements of rationality.
However, proportionality is not only a matter of objectivity, such as expressed in these three criteria. It also involves the consideration of the special circumstances of each individual child, avoiding a rigid equal and homogeneous treatment that could imply in discrimination when especially vulnerable conditions are at stake: disability, sexual orientation, gender, migration among others. In those cases, a sanction might be much more severe for some adolescents than for others, due to interests or needs that can be objectively considered.
In this sense, the law should not establish rigid divisions or scales that require, for certain categories of crimes, the imposition of a custodial sentence or its maximum extension. The legislator could consider flexible rules of positive proportionality, which require the imposition of this type of sanction if the youth’s guilt for committing a specific offence is sufficiently serious and there are no circumstances that make the sanction disproportionately distressing in his respect.
It is important to notice that the Interamerican Commission on Human Rights, in its analysis on “Juvenile Justice and Human Rights in the Americas”, has observed the lack of respect for the prohibition of minimum sentences in the region (paras 356), considering it a violation of human rights standards.
This emphasis on proportionality and the need for rules on the use of discretion in the determination of the measure does not preclude the necessity to have also clear principles and rules during the post-trial phase. Although any measure, and especially those involving deprivation of liberty, should be in place for the shortest time, minimum requirements on rationality and on transparent criteria are necessary to grant a feeling of fairness in any procedure. Once again, the Interamerican Commission highlights that States in the region do not observe the child’s right of a conditional or early release, in accordance with the brevity principle and Beijing Rule 28, which imply, in practice, that is no difference between minimum and maximum parameters for the sentence (see paras 383).
As a conclusion on this topic, minimum sentences, in law or judicial dispositions, are not in accordance with international human rights standards, it is a recurrent issue in some parts of the world, especially in the Americas, and should be challenged in domestic or international courts, and also by the Committee on the Rights of the Child.
IURA NOVIT CURIA
The case under discussion brings also an interesting situation to be analyzed. One member of the Committee has considered that the case was not admissible, but could have been if the complainant, based on the same facts, had used another argument, on minimum sentences.
This reasoning is not in accordance with a longstanding axiom in continental law, in civil and penal matters, and that has been adopted for decades by the European Court on Human Rights and also by the Interamerican Court on Human Rights: iura novit curia.
According to this maxim, judges are responsible for defining and interpreting the law, including independently of the legal arguments raised by the parties before them, whereas the parties are responsible for presenting and proving the facts. Therefore, regardless of the child’s specific allegations of rights violations, it remains possible for the court to consider the facts as alleged and apply the relevant rule accordingly, recognizing a violation of rights even if it has not been explicitly claimed.
There has been significant scholarly development in the study of equality, substantive democracy, and due process, emphasizing that positive measures—such as affirmative procedural adjustment, to address disparities between parties, for instance between the State and a child, should enable a more proactive judicial role in ensuring the effectiveness of rights. This is particularly evident in the case of children, whose vulnerabilities may affect their ability to properly assert their rights.
The Committee, although not by the majority of its members, has already dealt with the application of the principle Iura Novit Curia in R.H.M V Denmark Communications 83/2019 and S.S.F V Denmark Communication No. 96/2019 in two individual opinions by Committee member Luis Pedernera (partially dissenting and partially concurring), both on the application of article 37.
The Committee has already expanded the consideration of right violations in Communication No. 130/2020 S.E.M.A v France, where the child raised, among others, a violation of CRC’s article 20 and, in addition, the Committee, ex officio, understood that article 37 of the CRC was also violated. However, as the Committee has not explicitly addressed iura novit curia and its specific provisions, the possibility, extension and limits of an ex officio provision was object of concern in a Commentary of this case by Meda Couzens.
It is paradoxical that the Committee, on the one hand, acknowledges a human right violation regarding minimum sentences based on the facts submitted by the child, and, on the other hand, does not consider the case admissible because the child has not claimed this specific violation. There are rules for application of iura novit curia for a full respect of due process in order to avoid surprises for one of the parties, which is also well established in many international standards.
Therefore, for a full recognition of minimum sentence rule, it is highly expected that international judicial dialogue between the Committee and International Courts of Human Rights take place and iura novit curia could be incorporated in its daily practice. The merits of this cause could have been properly addressed and the child’s right appropriately granted, establishing an important precedent for Ecuador, the Americas and the whole world.