Introduction

Sentencing children under the UN Convention on the Rights of the Child (CRC) is a matter subject to important standards aimed at protecting the child’s wellbeing, warranting proportionality of the sentence with the offence and the personal circumstances of the child, and ensuring their reintegration in society (see Couso, 2020). Special attention should be paid to the CRC’s restrictions on the deprivation of liberty, which “shall be used only as a measure of last resort and for the shortest appropriate period of time”, according to article 37 (b), and to its requirement to States Parties that they make available to the juvenile justice system a variety of dispositions alternative to institutional care (article 40 (4)). All these requirements can be summarized, according to the Committee on the Rights of the Child (CRC Committee or Committee)’s General Comment 24 (2019), para. 2, in the principle of “a separate system with a differentiated, individualized approach”, even, and especially, when sentencing children.

Argentina’s legal framework on juvenile sentencing, Act No. 22.278 (“Régimen Penal de la Minoridad”), has been questioned both by legal scholarship and by important judicial bodies because of its lack of consideration of some of these standards when it comes to sentencing of children over the age of sixteen; in Argentina, children of sixteen and older can be subject to sentences for adults, although these might be reduced in terms of their length. ¹ The Inter-American Court of Human Rights, in Mendoza et al v. Argentina, has ruled that Argentina, by applying this legal framework, violated the American Convention on Human Rights, when it imposed a life sentence to five juveniles who were under the age of eighteen at the time of committing the offence.

In this communication, the CRC Committee renews the criticism against Argentina’s “Régimen Penal de la Minoridad”, in a case that does not entail the imposition of such an extreme sentence but concerns a relatively long prison sentence without due consideration to the above mentioned the standards, treating the juvenile in a manner that does not differ much from that of an adult. While doing so, the CRC Committee emphasizes important principles of a differentiated juvenile justice system, rightly rejects an argument against any consideration of the gravity of the offence, but wrongly fails to acknowledge the child’s right to a differentiated treatment during the serving of a custodial sentence after reaching majority.

Summary of the facts and domestic remedies

The author of the communication was a child, referred to as D.E.P., who was convicted for murder committed during the commission of another offense when he was 17 years and 2 months old. The Criminal Chamber of Appeal and Guarantees of La Matanza (the appeals chamber for the district La Matanza, in Buenos Aires, referred to as “Chamber of Appeals and Amparo” in the English version of the Communication) initially sentenced him to 15 years of imprisonment, considering aggravating circumstances but also noting, as a mitigating circumstance, the improvements in the author’s behaviour during custodial detention. Upon sentencing, the Chamber ordered the author’s transfer to an adult prison unit, considering that he was already an adult. Prior to that, D.E.P. had been held in custodial detention, which, according to the author, could be seen as the phase of “tutorial treatment” provided for in article 4 of Act No 22.278, the outcome of which had to be considered while deciding whether a criminal sentence was needed or not.

After having lodged a cassation appeal before the Court of Cassation of the Province Buenos Aires, who rejected the author’s appeal in respect of his claims regarding the arbitrary justification of the sentence, D.E.P. filed an appeal against this decision before the Supreme Court of Buenos Aires, arguing arbitrariness in the application of his custodial sentence and in determining the length of the sentence, in violation of articles 37 and 40 of the CRC. The author contended, in particular, as he had done in his cassation appeal, that, despite the express recognition of the improvements he had made during detention “the gravity of the offence had been given greater weight” in determining the need for a prison sentence, “without any consideration for the purpose that punishment should serve in the context of a child’s criminal responsibility” (para 2.1 and 2.2).

The Third Chamber of the Court of Cassation partially upheld the author’s complaint regarding the arbitrariness of the determination of its length, but only because one of the aggravating circumstances should not have been considered, and accordingly reduced the sentence to 13 years and 6 months. D.E.P. further appealed to the Supreme Court of the Province of Buenos Aires, for the same reasons cited in the first appeal. This court rejected the appeal considering that, the judges had determined a custodial sentence weighing the nature of the act, the author’s previous conduct, the outcome of his time in the youth reform centre and the direct impression he had made on the judge, as provided for under article 4 of Act No. 22.278.

Eventually D.E.P. ended up filing a complaint before the Supreme Court of Argentina on basically the same grounds as his previous appeals. Argentina’s Supreme Court decided to uphold the judgement of the Supreme Court of Buenos Aires with respect to the grounds invoked by the author, endorsing the expert opinion by the Attorney General of the Nation (Procurador Fiscal de la Nación), ² who argued that both international standards of children’s rights and domestic legal provisions grant the sentencing courts space to give due consideration not just to the evolution of the child’s personality and the outcome of his treatment, but also to the seriousness of the offence. The Court decided, nevertheless, ex officio, and on its own grounds, to partially admit the complaint. The Court concluded that due to the flaws of Act No. 22.278, the sentence imposed to the author could not be periodically reviewed in order to decide on his (early) release if the circumstances changed and his imprisonment was no longer deemed necessary. This flaw amounted, according to the Supreme Court, to a violation of the principle that deprivation of liberty of children should be used for the shortest appropriate period of time, as set out in article 37 (b) of the CRC, which is closely linked to the duty to periodically review measures of deprivation of liberty imposed on juveniles (on this link, see already Liefaard 2008, 205). The Supreme Court of Argentina decided on these grounds to order the legislative branch, within a reasonable period of time, to bring the juvenile justice criminal legislation in line with the international standards. ³

Even so, D.E.P.'s conviction remained final. The Criminal Chamber of Appeal and Amparo of La Matanza upheld the calculation of the sentence at 13 years and 6 months of imprisonment and deemed that it would expire on 25 July 2021. After the registration of the communication with the CRC Committee, D.E.P. informed the Committee that he had been released on 29 December 2020.

Complaint

In his communication to the CRC Committee, D.E.P. raises several grounds of violation of the CRC by Argentina:

a) Violation of Article 3: The judicial decisions against him were contrary to his best interests. The sentencing was based on the gravity and seriousness of the offense rather than on a true assessment of the need for punishment, while the best interests of the child requires in the views of the author a special form of justice focused on “rehabilitation and restorative justice” (para 3.1) for juveniles, instead on the traditional objectives of criminal justice, such as retribution.

b) Violation of Article 40: The State Party violated the aim of punishment as outlined in Article 40, which emphasizes reintegration. The "gravity of the act" was equated with the "need for punishment" in his case. This reflects a strictly punitive approach, not aligned with the principles of juvenile justice. According to the author, under Art. 40 (1) of the CRC the need for punishment must be assessed exclusively in accordance with the expected progress of the child; the gravity of the offence and the child’s culpability should only be used to determine the length of the sentence, not the need for it. In his case, he concludes, imposing a sentence of 13 years and 6 months of imprisonment without any periodic review thereof means the punishment was based solely on the gravity of the act.

c) Violation of Article 37 (b): The State Party is not using detention as a measure of last resort, as required. The author claims that the length of his custodial sentence was determined without considering whether it was necessary, given the improvements he had made during his custodial detention. Additionally, there was no justification as to the extent to which it constituted a measure of last resort or the shortest appropriate period of time. Further because of the lack of a legislative provision for early release when changing circumstances render the child’s detention no longer necessary, the State party, by applying a lengthy sentence without regularly assessing its necessity, violated his right to be detained “for the shortest appropriate period of time”, as required by article 37 (b) of the Convention.

d) Violation of Article 37 (c): The State Party violated, according to the author, the requirement to hold children in custody separate from adults. Even if he was convicted as a juvenile his sentence had, under Argentinian law, to be served in an adult prison unit, under a regime designed for a different purpose than the one that should be applied to juvenile. Referring to the CRC Committee’s General Comment No. 10 (2007), individuals who reach the age of majority should be allowed to serve their sentences in a facility for children if it is in their best interests and not contrary to the best interests of younger children in the facility. However, the State Party has not established any regulations to govern this.

e) Violation of Article 25: The State Party failed to periodically review the author's sentence and assess its necessity, so as to ensure that it is for the shortest appropriate period of time. The author claims that his development was not assessed during his nine years of detention to determine if continued imprisonment was necessary and, in case it was not, if he could be released.

f) Violation of Article 4: The State Party failed to adopt legislation to give effect to the aforementioned rights. The current legislation on child criminal justice in the State Party is outdated and not in accordance with the minimum standards set out by the CRC and other international human rights instruments, despite the Supreme Court of Argentina, the Inter-American Court of Children Rights, and the CRC Committee itself urging Argentina to align its child criminal justice system with those standards.

Findings

The Committee declared inadmissible the author’s claim that the State Party’s order to detain him in an adult prison unit after his conviction by the lower court violated articles 3 and 37 (c) of the CRC. The Committee considered that the author failed to sufficiently substantiate this claim for the purposes of admissibility because at the time of that order the author was already 19 and a half years old, suggesting that at such an age the threshold for substantiating that claim is higher and the author failed to reach it (para 5.6).

The Committee declared all the claims of the author admissible. Concerning these parts of the communication, the Committee made the following main findings:

The Committee begins by recalling that children and adults differ in terms of physical and psychological development and that this forms the basis for recognizing the lesser culpability of children and the need for a separate system with an individualized approach. In accordance with article 37 (b) of the CRC, laws pertaining to juvenile justice should contain a wide variety of non-custodial measures and prioritize their use, so that deprivation of liberty is used only as a measure of last resort and for the shortest appropriate period of time. The Committee emphasizes that a strictly punitive approach does not align with the principles of juvenile justice outlined in article 40 (1) of the CRC, and that sentences should be proportionate not only to the offence, but also to the personal circumstances of the child (para 6.2).

The Committee derives from that reasoning that the State Party has the burden of proving two elements when it chooses to impose a custodial sentence to a child. Firstly, that other non-custodial measures have been considered, but imprisonment was deemed necessary. Secondly, that the duration of the sentence does not extend beyond what is necessary to fulfill the aims on which the need for the custodial sentence was based (para 6.3).

The Committee also notes that people sentenced as juveniles have a right to a regular review of the sentence, derived from the principle that deprivation of liberty should be a measure of last resort and of the shortest appropriate duration. States Parties are thus expected to provide opportunities for early release from custody, into the care of parents or other appropriate adults, even in cases of very serious offences. Additionally, the period served before consideration of early release or parole should be substantially shorter than that for adults (para 6.4).

The Committee subsequently examines the author's claim that his sentence was determined by the seriousness of the offense, rather than a genuine assessment of the necessity of the punishment, which should be based solely on the child's expected progress. In this regard, the author argues that the decision failed to consider the necessity of the sentence in relation to his progress and that it did not demonstrate why the sentence constituted the last resort and had been imposed for the shortest appropriate period of time. The Committee notes that the Criminal Chamber of Appeal and Amparo indeed deemed a custodial sentence necessary given the gravity and seriousness of the offence. However, even if this Chamber considered – contrary to the author’s claim – that the gravity of the act may require the imposition of a custodial sentence and form part of the proportionality test for the sentence imposed, the Committee observes that the said gravity of the act cannot in itself constitute justification for the necessity of the sentence under the terms of articles 37 and 40 of the CRC, nor does it relieve the authorities of their obligation to provide such justification, even in cases of very serious offences (para 6.6). The Committee finds that the judgments of the Criminal Chamber of Appeal and Amparo, as well as the Third Chamber of the Court of Cassation, do not demonstrate such an analysis of the necessity for punishment or explicit assessment of alternative non-custodial measures. Consequently, the Committee concludes that the State Party has violated the author's rights under articles 37 (b) and 40 (1) of the CRC (para 6.6).

The Committee further considers the author's argument that the State Party has failed in its duty to adopt provisions in domestic law that give effect to his rights, and notes that Argentina indeed has not modified its juvenile justice system to comply with international standards, concluding that the State Party has violated article 4, read in conjunction with articles 37 (b) and 40 (1) of the CRC (para 6.8).

Commentary

In addition to the renewed call to Argentina to reform the legal framework of its juvenile justice system, there are, in my view, several aspects of the Committee’s findings that are worth commenting upon, since their significance extend beyond the single case presented to the Committee by this communication.

1. The Committee gives practical meaning and substantiation to the twofold requirement of proportionality prescribed by article 40 (4) of the CRC, as a test for justifying the imposition of a custodial sentence. According to the Committee, a custodial sentence is not sufficiently justified by taking into consideration the seriousness of the offence committed, if the circumstances of the child have not been weighed as well.

With this reasoning, the Committee seems to take side in favour of one of two different meanings of the notion of proportionality that can found in legal doctrine. The first meaning concerns a quite widespread interpretation, both in constitutional doctrine and in the jurisprudence of international human rights tribunals, which employs a test for the justification of the exercise of state power implying a limitation of a fundamental right (see Jackson 2016, Schlink 2012). This interpretation differs from the classical notion of proportionality of the penalties used in criminal law (i.e. the second meaning) in order to assess whether a given sentence corresponds to the blameworthiness of the offender’s conduct, i.e. their “desert”, or surpasses it (see von Hirsch 1992). According to the former notion, a state measure – in this case, a juvenile sentence – that limits one person’s fundamental rights – the child’s personal liberty, among others – is only justified if it is a suitable and necessary measure for achieving a constitutionally legitimate aim and does not entail an excessive restriction to said rights in consideration of the relative importance of the aim pursued. The Committee clearly favours this view and provides an interpretation that is grounded in international children’s rights law.

Prima facie, this choice seems sensible if the outcome is precisely that, in order to justify the necessity of a custodial sentence, due consideration is given to the circumstances of the child, as a further requirement beyond that such a sentence is not disproportionate to the offence committed by the child. However, the Committee fails to appreciate the shortcomings of the application of this proportionality test to the judicial decision that imposes a sentence, that is: that it assumes a careful and comprehensive empirical assessment regarding complex social aims – like social reintegration, crime prevention, among others – along with the suitability and relative necessity of a custodial sentence vis-à-vis other available measures for achieving them. And it seems that a court is not well suited to make such an empirical assessment on a case-by-case analysis. ⁴ Second, if one defines those further aims of the sentence, beyond retribution, in terms of some “goods” to be provided for the child, such as reintegration or protection of their wellbeing, then the legal reasoning that eventually justifies the imposition of a custodial sentence will most probably lead to the following oxymoron: to legitimize what is an objective evil for the child (their deprivation of liberty) by means of the pretended good it represents for the same child (their rehabilitation, protection, wellbeing). This approach tends to obscure the harmful nature of custodial sentences for children, thereby distorting the logical and moral foundation of the proportionality principle. According to this principle, a measure that negatively impacts a person's fundamental rights can only be justified if it is suitable and necessary for achieving a legitimate aim—one that is unrelated to the individual's interests—and if it does not excessively restrict those rights given the importance of that aim.

The alternative is to interpret proportionality, when it comes to determining the appropriate punitive sentence, in terms of the classical notion. This alternative interpretation by no means prevents a court from considering the circumstances of the child, something that is required by the CRC and the differentiated approach of juvenile justice it favors, but it tends to focus, at least when it comes to deciding the imposition of a custodial sentence, on those personal circumstances that say something about this meaning of proportionality. This can be done either by qualifying the child’s culpability (such as the child’s lower age or the fact that they acted under the influence of their parents) or by specifying their sensitivity to – i.e., the degree to which they get negatively affected by – different kinds and extensions of punishment (such as the child’s health conditions or disabilities, her state of pregnancy, etc.). This understanding of the proportionality principle, which is also to be applied during sentencing, is compatible with the application of a very different approach concerning the phase of judicial review of the serving of the sentence, where the differentiated approach gives space to an ample consideration of the personal circumstances of the child, not as a ground that justifies the imposition of the sentence, but as one that justifies its termination or substitution, through an early release. ⁵

In any case, the Committee is right in setting a standard to State Parties, according to which, before imposing a custodial sentence, the examination of its necessity should be made more seriously and carefully than Argentina seems to have done in this case. This implies as a minimum that alternative sentences should be available to the court, which requires, beyond the legal design, public policies, programs and investment on the part of the administration. And it also means that the courts take the decision after having expressly examined whether those alternatives are sufficient to fulfill the aims pursued, whatever these aims are in the given legal framework.

1. If one follows the reasoning of the Committee while analyzing the principle of proportionality of the sentence and the requirement of necessity, as a test for justifying the imposition of a custodial sentence, it becomes quite clear that it deems, even if obiter dictum, that the consideration of the gravity of the offence, as one of the grounds that support the said necessity, by no means violates the CRC. The Committee therefore rejects the author’s claim that the assessment of the necessity of imprisonment “should be based exclusively on the child’s expected progress” (para 6.5), stating that “the gravity of the act may require the imposition of a custodial sentence and form part of the proportionality test” (para. 6.6). Moreover, the Committee’s wording even suggest that it does not even endorse the author’s claim (by the way, alternative to the one more stringent, just cited) that at least the gravity of the offence should not be given greater weight than to the rehabilitative aims of the punishment provided for in articles 37 and 40 of the CRC (para 2.1.). In fact, by declaring that the gravity of the act “may require the imposition of a custodial sentence”, even if the Committee then qualifies its assertion adding that the said gravity of the act “cannot in itself constitute justification for the necessity” of that sentence, and that this justification needs to be addressed by the court even in the case of very serious offences (para. 6.6), the Committee leaves open the question as to whether the relative weight given to the said gravity could or could not be greater (whatever this means in a concrete court reasoning) than the one given to the aim of rehabilitation.

1. Another point made by the Committee is that the right of a child convicted to a custodial sentence to a periodical review of their sentence while it is being served, as a means to guarantee the principle that deprivation of liberty should be used for the shortest appropriate period of time (para. 6.4), extends to any person who was under the age of 18 at the time of the commission of the offence but reached that age during the trial or sentencing (para 8 (b)). That is of course quite often the case in jurisdictions where the minimum age of responsibility as a child is set not too low, as is the case of Argentina, so without this extension the said right would become illusory in most cases. This way, the Committee clarifies and further elaborates the importance of the right to a periodical review regarding prison sentences. Indeed, in its General Comment 24 (2019), para 92, that right was mentioned with regard to life imprisonment, as a ground for rejecting life sentences without parole, which would render the right to a periodical review moot. But in this Communication, the Committee goes beyond that, envisaging periodical review as a practical was to ensure that a child’s deprivation of liberty be used for the shortest appropriate period of time.

1. Finally, and rather in contradiction to the above-mentioned extension of the right to a periodical review after the child reaches the age of 18, the Committee fails to acknowledge the right of any person convicted for an act committed while they were a child to serve their sentence under a differentiated regime, for its whole duration. In fact, in response to the author’s claim that making him serve his sentence in an adult prison unit, under the same treatment applied to adults, violated, among others, article 3 of the CRC, the Committee replied recalling its opinion, expressed in General Comment 24 (2019), paras 92-93, that the permanence of a person convicted as child in a facility for children is desirable (“should be possible”) when “that is in his or her best interests and not contrary to the best interests of the children in the facility”, and noting that in this case, where the author was already 19 and a half years old by the time of his sentence, he failed to sufficiently substantiate his claims, to the point of letting them fall at the test of admissibility (para 5.6).

This conclusion seems problematic to me. Article 40(3) of the CRC is a core standard for juvenile justice systems, which requires States parties “to promote the establishment of laws, procedures, authorities and institutions specifically applicable to children alleged as, accused of, or recognized as having infringed the penal law”, in order to implement the “separate system with a differentiated, individualized approach” promoted by the Committee. If such an approach does not accompany the child, as a right to a differentiated treatment, beyond having reached the age of 18, during the whole time of the serving of their sentence, then it will become illusory in most cases of custodial sentences. Indeed, in many jurisdictions juvenile justice systems begin in average during teenage years, proceedings for serious cases tend to last long, prison sentences are normally reserved to serious cases and their length tend to last for years; so, by applying the Committee’s rationale on this, most people convicted as juveniles could get nothing from the pretended differentiated system, as was the case for the author of this communication. Besides, this seems to contradict the Committee’s own approach as advocated for in its General Comment 24 (2019), para 41, according to which “[j]uvenile justice systems should also extend protection to juveniles who were below the age of 18 at the time of the commission of the offence but who turn 18 during the trial or during the period of sentence.”

One can understand that the continued permanence of a juvenile in a child facility, after having reached the age of majority, poses several practical problems, and that the Committee rightly addresses the issue of whether the permanence of an already grown-up person, convicted as a child, in the child facility is not in her or his best interests or is against the best interests or the children in that facility (following its own General Comment No. 24 (2019), para 105). But even if, based on those criteria, the removal of the already grown-up person from the child facility is the right decision, this does not justify divesting that person convicted as a child from the special rights recognized to them by the CRC even before being able to exercise them. The Committee, probably unsatisfied by the lack of reference in the Communication to the impact that the author’s permanence in a child facility – and that of others in his situation – could have on the safety and wellbeing of the children on custody there, unnecessarily confounds both issues, while it is perfectly possible to admit that, even if the author’s permanence there was not indicated, he had a right to a differentiated treatment that was violated by confining and treating him just like someone convicted for acts committed as an adult.

The whole idea of the right to a differentiated treatment, applied to sentencing, means that a child who commits a criminal offence is entitled to a response with special goals, contents, and limits. If this child will lose that right before he or she is even in position to start to serve the sentence, it does not seem to make sense to assume the right to special or child-specific treatment. It is true that acknowledging that right for the duration of the entire sentence will mean that State Parties should implement policies and programs for grown-up people convicted as children, possible by creating special facilities for young adults, but this is to a great extend the case because the legal frameworks tend to set rather long terms, challenging the principle of the shortest appropriate period of time. So, the practical problems of effectively enforcing the right to differentiated treatment for people who have long reached majority but were still a child at the time of the offence should be one of the reasons for moderating the maximum length of juvenile sentences, not for denying them that right.

Besides, if the Committee itself extended the right of a periodic review of the sentence, in order to assess whether the (special) aims of the punishment have been already fulfilled, so that the custody is no longer necessary and an early release is justified, it seems a contradiction to deny children a right to be treated under a differentiated regime, arguably in a separate facility, so to get access to the basic conditions to reach those aims. In many jurisdictions across the world, the resources available for meeting such conditions are dramatically lower in facilities for adults than in those for children. It therefore does not seem realistic to expect to expect differentiated treatment for children in adult facilities. This is, perhaps, why in several jurisdictions, legal provisions and courts decisions recognized the rights of children to special treatment for the whole duration of the sentence, regardless of the fact that they reached the age of majority. ⁶ The view of the Committee expressed in this case does not support such policies, which can be assumed desirable and legally founded on international children’s rights law. The Committee would do well by revisiting this decision in the next opportunity available.