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Within Colombia, the newly-revised Constitution of 1991 is often referred as to a beautifully-conceived and written document that has little to do with the way rights are actually treated. Much the same can be said of the Code for Minors.

Made law in 1990, the Code for Minors is a model of progressive thinking on children's rights, stressing rehabilitation rather than punishment for juvenile delinquents, support for struggling families, and education for parents and children alike. Among its most important advances is Article 165, which holds that minors are "inimputable," not responsible for their actions or the consequences, and therefore not punishable by law. 234 Instead, children — abandoned, abused, or delinquent — are considered eligible for special support, placement with new families, and treatment. In contrast to the previous penal code, which sent child infractors to prisons annexed to adult facilities, the new code holds that no child can be incarcerated under any circumstances. Instead, children can be remanded to treatment centers for terms fixed by the social workers who supervise them, not a judge. 235

However, Colombia's leaders have provided neither the facilities or the funding to translate the laudable concepts of the Code for Minors into action. Problems begin with the government's failure to apply the code vigorously — for instance, to hire the child defensores necessary to halt the practice of torture in detention centers — and extend to a lack of funding for facilities needed to treat child offenders. 236

Although it is beyond our mandate to comment on welfare policies or the Colombian government's fulfillment of its own laws, a review of the new code is necessary here to illustrate the degree to which the state has abandoned the defense of children's fundamental rights and tolerates abuses. The vacuum created by the failure to enact the Code for Minors is an important impetus behind the perception, shared by some members of the security forces and the "social cleansing" groups that act with their assistance or approval, that children perceived as problems must be eliminated.

A panoply of institutions are charged with protecting children. Foremost is the Colombian Institute for Family Welfare (ICBF), a government agency. 237 A combination of family welfare agency and juvenile justice system, the ICBF employs, among others, child defensores, who can order children taken into custody, investigate reports of abuse or negligence, determine the state's response to arrested child offenders under twelve, and occasionally act with police to search locations where children are reported to be in danger. 238

Juvenile offenders twelve years and older are seen by a children's judge (juez de menores or juez promíscuo de familia) and a defensor. Their path through the juvenile justice system is otherwise similar to children under twelve with one exception: Article 201 allows judges to require juveniles to be kept full-time in a ICBF treatment facility for a maximum of three years. 239

According to Article 170 of the Code, children cannot be kept in police detention centers, and must be transferred to special facilities supervised by the defensor or a children's judge immediately. 240 The child can remain in the custody of the defensor for a maximum of five days, at which time the child must be released or transferred to an observation center for further evaluation. 241 During the sixty-day observation period, ICBF officials determine whether to send the child back to the family, a substitute home, or a treatment center. 242

Yet four years after the code became law, the number of troubled children far exceeds state resources made available to them. Of its 5,000 staff members, the ICBF employs only 350 child defensores. Divided among them, that means each has a case load of over 20,000 children. 243 Cali, a city of over one million, relies on four child defensores. 244 This constitutes a serious threat to the defense of children's rights, since in many areas the defensor is either overburdened or does not exist.

ICBF inaction that threatens the lives of children is commonplace. In January, the personero for Cartagena (Bolívar) initiated an acción de tutela 245 against the police, the ICBF, and the municipal health director for failing to address the problem of the more than one hundred street children in the city. 246 A private citizen in the department of Meta filed an acción de tutela to force the ICBF to act to take custody of thirty minors scavenging in the central plaza of Villavicencio, the department capital. 247 The only rehabilitation center for girls in Bogotá has been under construction for two years. 248

All blame cannot be laid at the door of the ICBF, however. Often, ICBF authorities who act in good faith have nowhere to put children. The number of children older than twelve brought to trial has tripled over the past decade, most charged with robbery or theft. 249 Foster homes are filled to capacity; so are the few treatment centers currently in operation. 250 The government has failed to pay for the institutional framework laid out in the new Code for Minors, meaning that child welfare workers often have no choice but to send children to substandard or overcrowded facilities or return them to the streets. 251

The release of juvenile delinquents who have committed serious or repeated crimes is explicitly prohibited by Article 209 of the code. However, defensores and child advocates told Human Rights Watch/Americas that these releases are everyday occurrences because there are no facilities to accommodate children. 252

In the department (state) of Atlántico, for instance, there is no residential treatment center for juveniles, meaning that the judges there must release offenders even when they have committed serious crimes. In an interview with a reporter from the leading newspaper in Barranquilla, capital of Atlántico, Amanda Viáfara Molina, a penal judge for minors (Juez Unica Penal de Menores), commented on the repercussions of having no treatment center:

When a minor breaks the law, it becomes a notorious event in the community, above all with the group of friends or gang that the minor belongs to. These children are the ones waiting most anxiously to see what consequences will fall upon their friend. But since there is no place to send an culprit, the judge is forced to free him and this young person is seen by his friends as a hero, which serves as the classic justification of the crime. 253

ICBF officials in Medellín told us that the release of juvenile offenders because there is no place to put them is common. Although new centers are currently under construction, it will be years before there are enough spaces. 254 One human rights group told us that many of these kids are murdered soon after their release, in revenge killings or because they are seen as snitches. 255

Human Rights Watch/Americas was able to visit two ICBF-sponsored centers that treat troubled children: Casa de El Redentor in Bogotá, for male juvenile delinquents, and Ciudad Don Bosco in Medellín, which treats male and female street children. Both provide excellent services, and are highly praised by child advocates and human rights groups.

The Casa de El Redentor is the only institution in the capital where juveniles twelve and older must live on the site during treatment. In the language of child welfare groups, it is referred to as a "closed" facility. Although El Redentor is an ICBF institution, it is run by Capuchin brothers under a special state contract. On the southern outskirts of the capital, El Redentor looks much like a small college, with ample and well-kept grounds and long dormitories filled with boys. 256

Initially, children are sent to El Redentor for a sixty-day observation period. Some are gamines; others have been implicated in crimes from theft to murder. Social workers and other professionals evaluate their behavior, then determine if the child should be released to another facility or transferred to the treatment center at El Redentor. Other Bogotá institutions for children include Cajicá, a "semi-closed" facility (where children can go home over the weekends), and "substitute homes," akin to foster care.

In the treatment facility, which accepts up to 160 youths, the schedule is divided between classes, treatment sessions, sports, vocational workshops, meals and the occasional family visit. Youths are not sentenced to a fixed term, according to El Redentor director Salvador Morales, but stay as long as the staff feels it is necessary. For youths who have murdered or are addicted to drugs, that can mean up to three years.

"I have to turn away kids sent to me by judges all the time," Fray Morales told us. Although he declined to specify how many children he is forced to turn away, he told Human Rights Watch/Americas that it is an everyday occurrence. "If I accepted everyone, the grounds would be filled with children sleeping in the open." 257

As serious as the lack of facilities is continuing abuse of the code itself by the authorities, in particular the police. Although Article 170 of the Code for Minors stipulates that children can only be held in police stations under rare and exceptional circumstances, and must be put at the disposition of the defensor or children's judge immediately, many children told us that they continue to be detained for extended periods in police cells, where they are tortured. 258

Norbel*, a former gang member, described in detail one torture session he endured when he was seventeen, detained by the Medellín F-2, police intelligence:

I was in the cell for three days, beaten constantly. They kept calling me `gonorrhea,' as if I was some kind of disease. In one of the rooms, I saw a metal bunk bed attached to a thick electrical cord that branched off to the light in the ceiling. I think they put me there to threaten me, to say that if I didn't talk they would strap me to the bed and flip the switch. They told me that if I gave them money they would let me go. Finally, the officer who beat me the most gave me a piece of paper to sign saying that I hadn't been abused. 259

Human Rights Watch/Americas received numerous similar testimonies about a kind of abuse that appears to be commonplace for children in police stations throughout Colombia: slaps, kicks, beatings, near-suffocations, insults, and threats. Several of these incidents have been detailed in this report. 260

Numerous incidents reported to Police High Commissioner Adolfo Salamanca prompted him to send a letter to National Police Chief Octavio Vargas Silva in March 1994, emphasizing that children have a right to special protection under the law. 261 Salamanca, a civilian appointed as a result of a 1993 police reform, is the titular head of the police Inspectoría (Internal Affairs), charged with investigating reports of abuses and recommending sanctions.

However, like the ICBF, he has neither the budget, staff, nor political backing to do his job. With a staff of ten, including himself, he is supposed to supervise the work of Colombia's more than 100,000 police officers. Far from offering a new and more powerful way to oversee police, the office of the High Commissioner currently triplicates duties already assumed, and ineffectively, by the Procuraduría and Inspectoría. 262 Although human rights groups praise the personal commitment of Commissioner Salamanca, they say that the impunity enjoyed by police continues to be "extremely serious." 263


234 Presidencia de la República, Código del Menor (Santafé de Bogotá: Instituto Colombiano de Bienestar Familiar, 1992), p. 39.

235 Children between twelve and eighteen can be held in so-called "treatment centers" for juveniles, but the term of stay is not fixed and depends on the evaluations of social workers who try to encourage their charges to abandon crime or drugs. HRW/Americas interview, Dr. Francisco Ayala Buitrago, Bogotá, June 7, 1994; and "Vida después de la muerte ajena," El Tiempo, May 23, 1993.

236 The government's capacity to raise funds for projects it deems important was clearly demonstrated by the huge increase in defense spending over the last decade. For an analysis, see Human Rights Watch, State of War, pp. 12-13.

237 There is also a Procurador for children within the Procuraduría, Defensoría, and Personería offices, special children's offices within many municipalities (comisarías de familia), and a unit within the National Police called the Policía de Menores (Police for Minors).

238 The right of defensores to search private dwellings without a court order was challenged in 1993 by the office of the Defensoría, which argued that it violated constitutional guarantees to the right of intimacy, tranquility, physical liberty, and personal security. Defensoría del Pueblo, Primer Informe, p. 62.

239 ICBF teams are supposed to include a doctor, a psychologist, and a social worker. HRW/Americas interview, Dra. Olga Granados, ICBF Regional Director for Bogotá, June 3, 1994; and Código del Menor, pp. 39, 46.

240 There is an important contradiction in the Code in terms of the time children older than twelve can be kept in police detention. While Article 170 stipulates that the child must be put at the disposition of the children's judge immediately, Article 184 holds that the child should be put at the judge's disposition on "the first working day" after their arrest. Human rights groups told us that weekends and holidays are particularly dangerous times for torture, since police feel assured that the some signs of abuse — bruises, cuts, and burns — can fade by the time Monday dawns. Código del Menor, pp. 40, 43; and HRW/Americas interviews with human rights groups, Bogotá and Medellín, July 2-14.

241 Código del Menor, p. 43.

242 A 1993 decision by the Constitutional Court stipulated that the state has an obligation to remove children from abusive families. The decision was in response to an acción de tutela filed by a mother in the state of Guajira, who charged that her daughter had been kidnapped by the regional office of the ICBF. ICBF authorities defended themselves by arguing that the mother had voluntarily given the child away on previous occasions because of family conflict, and failed to attend any hearings on the matter. "Ni un golpe más, usted puede perder a su hijo," El Universal (Cartagena), March 23, 1993; and Código del Menor, Article 188, p. 43.

243 "Hay que aplicar el Código," El Colombiano (Medellín), March 18, 1994.

244 "Drama infantil en la calle," El País (Cali), July 18, 1993.

245 An acción de tutela allows citizens to file for an immediate judicial injunction against actions or omissions of any public authority that they claim limit their constitutional rights. Courts must hand down a ruling within ten days of receiving a petition.

246 "Personería Distrital interpuso acción de tutela por desatención a gamines," La Libertad (Cartagena), January 13, 1994.

247 "Ordenan a ICBF proteger a 30 niños abandonados," Nuevo Siglo, February 1, 1994.

248 "Vida después de la muerte ajena," El Tiempo, May 23, 1993.

249 ICBF, Boletín Estadístico (Santafé de Bogotá: ICBF, 1991), p. 42.

250 "A budget of 300,000,000 pesos ($375,000) was just approved by the National Government for the treatment of the problem (of juvenile offenders), an amount that was qualified by those who are familiar with the problem as `an insult and a joke compared to the enormous amount of work before us,'" wrote an editorialist for the Medellín daily El Colombiano recently. "Hay que aplicar ...", El Colombiano.

251 In recent months, the ICBF has lost several acciones de tutela arguing that the institution violated the rights of children by putting their lives, health, and physical integrity in danger with substandard living conditions. "Denuncian anomalías en el ICBF," Nuevo Siglo, February 1, 1994.

252 Código del Menor, p. 49; and HRW/Americas interviews with child advocates, Bogotá and Medellín, July 2-14, 1994.

253 "La necesidad los lleva a delinquir," El Heraldo (Barranquilla), March 27, 1993.

254 HRW/Americas interview, ICBF-Medellín, Medellín, June 9, 1994.

255 HRW/Americas interview, Corporación Región, Medellín, June 8, 1994.

256 HRW/Americas interview, Fray Salvador Morales, Bogotá, June 5, 1994.

257 Ibid.

258 Código del Menor, p. 40.

259 HRW/Americas interview, Medellín, June 12, 1994.

260 Such torture is not only a violation of internationally recognized standards of human rights, but also Colombia's Constitution and Article 16 of the Penal Code for Minors, which explicitly prohibits "torture, cruel and degrading treatment and arbitrary detention ( podrá ser sometido a tortura, a tratos crueles o degradantes ni a detención arbitraria)." Código del Menor, p. 4.

261 "Los menores no deben ser retenidos en estaciones," El Tiempo, March 29, 1994.

262 HRW/Americas, interview, Dr. Adolfo Salamanca, High Commissioner for the Police, Bogotá, June 3, 1994.

263 In June, the National Police Commissioner acknowledged that police violate human rights. He asked that police file formal charges against three officers implicated in the torture of union leader Luis Antonio Tellez during a Workers' Day march in May. Agence France-Presse, "Commissioner Admits Police Violate Human Rights," June 3, in FBIS, June 7, 1994, p. 26; and HRW/Americas interview, CAJ-SC, Bogotá, June 7, 1994.

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