I/A Court H.R., Case of Mendoza et al. v. Argentina. Preliminary Objections, Merits and Reparations. Judgment of May 14, 2013. Series C No. 260.

Non official brief

 

This summary is also published in the website of the Council of Europe in the following link: www.venice.coe.int/files/Bulletin/B2014-1-e.pdf

 

Headnotes:


The Convention on the Rights of the Child considers the child’s best interests as a reference point to ensure the effective realisation of all the rights recognised in that instrument. The actions of the State and society to protect children, and promote and preserve their rights must adhere to this standard. Based on the consideration that the child’s best interests is an interpretative principle to ensure the maximum satisfaction of the rights of the child, it should also serve to ensure minimal restriction of such rights. Regarding measures or sentences involving the deprivation of liberty of children, the following principles apply:

 

1.    exceptional, ultima ratio application for the shortest possible time;

2.    a specified period of deprivation of liberty at the time of sentencing; and

3.    periodic review of the measures of deprivation of liberty of children.


Thus, for children, life imprisonment or reclusion for life is incompatible with Article 7.3 of the American Convention on Human Rights (hereinafter, the «ACHR»). Neither one of them is an exceptional punishment. The reason is that such deprivation of liberty is not handed down for the shortest possible time or for a period specified at the time of sentencing. Also, the punishments do not entail a periodic review of the necessity for such deprivation of liberty.


The penalty for an offense must have the objective of reintegrating the child into society. The proportionality of the sentence is closely related to its purpose, pursuant to Article 5.6 ACHR. Owing to their characteristics, the sentences of life imprisonment and reclusion for life do not achieve the objective of reintegrating juveniles into society. Rather, this type of sentence involves the maximum exclusion of the child from society, functioning in a purely retributive sense, because the expectations of re-socialisation are annulled. Therefore, such sentences are not proportionate to the objective of the criminal sanction of children. The extreme psychological impact derived from the disproportionality of the sentences constitutes cruel and inhumane treatment.

 

The consideration of elements in sentencing other than the offense committed, as well as the possibility of imposing on children criminal sanctions established for adults, is contrary to the principle of proportionality in the criminal sanction of children.


If the State fails to comply with its obligation to conduct periodic and regular examinations of those deprived from liberty, in order to safeguard their health, such failure constitutes inhumane treatment.


Subjecting a detained person to strong blows to the feet consistent with the practice of «falanga» constitutes a typical form of torture. Although there may be no evidence to determine the purpose or objective of the blows received by the victims, according to the Inter-American Convention to Prevent and Punish Torture (hereinafter, the «ICPPT»), this conduct can be carried out for «the purposes of criminal investigation, as a means of intimidation, as personal punishment, as a preventive measure, as a penalty, or for any other purpose.


State authorities must follow up and investigate the deaths of detainees to determine whether the prison staff was potentially responsible. The omissions related to his conditions of detention and/or a detainee´s state of depression could have contributed to his death. The State must disprove the possibility of the responsibility of its agents, taking into account the measures that they should have adopted in order to safeguard the rights of a person in custody, and to collect the evidence necessary therefor.


The determination of criminal and/or administrative responsibility each has its own substantive and procedural rules. Consequently, the failure to determine criminal responsibility should not prevent the continuation of the investigation into other types of responsibilities, such as administrative responsibilities.


The State cannot place its obligation to investigate upon the presumed victims; this obligation cannot depend upon the procedural initiative of the victims or their next of kin or on private contributions of evidence.


Article 8.2 ACHR refers, in general terms, to the minimum guarantees for a person subjected to an investigation and criminal proceedings. These minimum guarantees must be protected at different stages of the criminal proceedings, including the investigation, indictment, prosecution, and sentencing. The right to appeal the judgment to a higher court is a guarantee for the individual in relation to the State. The right to appeal the judgment is also provided for in the Convention on the Rights of the Child. Therefore, the right to appeal the judgment becomes especially relevant when determining the rights of children, when they have been sentenced to imprisonment for the perpetration of offenses.


The Convention requires an integral review of judgments. The lack of examination of the merits of a matter, without considering issues relating to the facts and evidence, does not conform to the provisions of Article 8.2.h ACHR. The reason is that a review of the facts and evidence can overturn a criminal conviction.


A fixed period after which a release can be requested does not take into account the circumstances of each child, which change with the passage of time and, at any moment, could reveal progress that would enable reintegration into society. The timeframe allowing children to request their release for the first time, and to reintegrate into society must be proportionate. Children should not be forced to remain deprived of their liberty for longer than the time lived before the perpetration of the offense and the imposition of the punishment.


Summary:

 

I. The case concerns five minors who were sentenced to life imprisonment under Argentinian Law no. 22.278 for committing an offense. During their imprisonment, one of the children suffered loss of vision due to the lack of medical attention after an injury, two of them were tortured after attaining the age of majority, and one of them committed suicide after attaining the age of majority but the latter incident was not investigated. In this case, the only recourse available to the five children, a recourse in cassation, did not allow a higher court to review questions of fact and evidence.


On 17 June 2011, the Inter American Commission of Human Rights submitted the case, alleging violations to Articles 4.1, 5.1, 5.2, 5.6, 7.3, 8.1, 8.2.d, 8.2.e, 8.2.h, 19 and 25 ACHR.


II. On the merits, the Court found violations to Articles 7.3, 5.6 and 5.1 in relation to Articles 1.1 and 19 ACHR to the detriment of the five children. It further established violations to Articles 8.1 and 25 ACHR in relation to Article 1.1 ACHR to the detriment of the parents of the detainee who passed away, and to the detriment of the tortured detainees, the latter in combination with Articles 1, 6 and 8 ICPPT. It also declared the violation of Article 8.2.h ACHR in relation to Articles 1.1, 2 and 19 ACHR, to the detriment of those parties who exercised the recourse of cassation, and of Article 5.1 ACHR to the detriment of the next of kin of the five children. Additionally, it declared the State´s lack of compliance with Article 2 ACHR in relation to Articles 7.3, 8.2.h and 19 ACHR.

 

The Court determined that the sentence of life imprisonment for the five individuals was not exceptional and did not apply the restriction of liberty for the shortest possible time. Also, it neither allowed for a periodic review of the need to deprive the children of their liberty nor provided for their social reintegration. As such, they violated Articles 7.3 and 5.6 ACHR to their detriment. It also determined that the high psychological impact of the sentence of life imprisonment constituted cruel and inhumane treatment, in violation of Articles 5.1 and 5.2 ACHR.

 

The Court also determined that two of the detainees who had reached the age of majority were subjected to torture during their detention, The injuries sustained on their feet, which were consistent with the practice of «falanga,» violate Articles 5.1 and 5.2 ACHR, as well as of Articles 1, 6 and 8 of the Inter American Convention to Prevent and Punish Torture. The lack of proof regarding the purpose of the torture was not enough to discredit the existence of torture. Under the Inter American Convention to Prevent and Punish Torture, the acts committed can seek «any […] purpose». The lack of investigation of such torture constituted a further violation to Argentina’s obligations under Articles 8.1 and 25.1 ACHR.

 

The State was also held responsible for the suicide death of one of the detainees who had reached majority. With regard to the investigation into his death, the Court observed that State authorities had knowledge he was in a depressive condition prior to his death, possibly related to the deplorable conditions of detention in which he was held. The lack of investigation into those conditions and of possible responsibilities therefore, even of an administrative nature, constituted a further violation to the rights to a fair trial and judicial protection under Articles 8.1 and 25.1 ACHR.

 

The Court finally referred to the recourse in cassation available in Argentina, exercised by the five convicted persons, which did not allow for the review of questions of fact and evidence related to convictions by a judge or superior tribunal, and limited higher courts to reviewing issues of law. The Courtdetermined that the cassation recourse violated the right to an appeal under Article 8.2.h ACHR, since the review had to be of an integral nature.

 

Accordingly, the Court ordered, inter alia, that the State: provide free health treatment to the four detainees still interned, including the surgical needs required to aid the individual who lost his sight during detention; provide educational services for the victims, even at a university level; adjust its juvenile criminal system to international standards and implement policies toward the prevention of juvenile crime; ensure that no life imprisonment sentences would be imposed again for crimes committed during childhood, and that those persons serving life sentences for crimes committed during childhood have the opportunity to request the review of their sentences; adapt their laws to allow for an integral right to appeal criminal convictions; implement educational programs on human rights and children´s rights for penitentiary personnel and for judges with jurisdiction over cases related to children; investigate the death and torture of the victims; and pay a sum for pecuniary and non-pecuniary damages.