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United Nations Committee on the Rights of the Child - States Parties Reports |
UNITED
NATIONS |
|
CRC |
|
Convention on the Rights of the Child |
Distr. GENERAL CRC/C/70/Add.10 26 February 2002 ENGLISH Original : SPANISH |
COMMITTEE ON THE RIGHTS OF THE CHILD
CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES
UNDER
ARTICLE 44 OF THE CONVENTION
Periodic reports of States parties
due in 1998
ARGENTINA*
____________________
* For the initial report submitted by Argentina, see documents
CRC/C/8/Add.12 and 17; for its consideration by the Committee, see
documents
CRC/C/SR.177-179 and CRC/C/15/Add.35.
GE.02-40551 (EXT)
CONTENTS
Paragraphs Page
Article 1. Definition of the child 1 - 4 4
Article
2. Application of the Convention without discrimination 5 -
36 4
Article 3. Best interests of the child 37 - 42 12
Article
4. Economic, social and cultural rights. General framework 43 -
49 13
Article 5. Respect for the responsibilities, rights and duties of
persons
legally responsible for children 50 14
Article 6. Right to
life 51 – 114 14
Article 7. Identity, name and nationality 115
– 135 25
Article 8. Preservation of identity, nationality, name and
family relations 136 – 153 29
Article 9. Guarantee of relations
with parents 154 – 193 32
Article 10. Family reunification 194
– 196 37
Article 11. Illicit transfer and non-return of children
abroad 197 – 204 37
Article 12. Right to be heard 205 –
212 38
Article 13. Freedom of expression 213 –
216 41
Article 14. Freedom of thought conscience and religion 217
– 219 42
Article 15. Freedom of association and peaceful
assembly 220 – 221 42
Article 16. Right to privacy 222 –
228 43
Article 17. Access to information 229 –
233 44
Article 18. Parental authority. Guardianship. Representation of
children 234 – 244 45
Article 19. Measures to combat physical and
mental abuse, neglect,
negligent treatment, exploitation and sexual
abuse 245 – 283 47
Article 20. Children temporarily or permanently
deprived of their
family environment 284 – 290 54
Article
21. Adoption 291 – 335 56
Article 22. Refugee children 336
– 345 65
CONTENTS (continued)
Paragraphs Page
Article 23. Children with different capacities 346 –
357 66
Article 24. Health, treatment and rehabilitation 358
–375 69
Article 25. Periodic review of placement 376 –
381 70
Article 26. Social security 382 – 398 71
Article
27. Standard of living adequate for physical, mental, spiritual,
moral and
social development 399 – 420 75
Article
28. Education 421-504 84
Article 29. Education to develop respect for
human rights 505- 509 101
Article 30. Minorities 510-
518 102
Article 31. Culture, leisure and free time 519
542 103
Article 32. Child labour 543 – 559 107
Article
33. Protection against illicit use of drugs and prevention of
the use of
children in their production and trafficking 560 – 563 109
Article
34. Protection against sexual exploitation and sexual abuse 564 –
566 109
Article 35. Measures to prevent the abduction, the sale of or
traffic
in children 567 –571 110
Article 36. Protection
against all other formes of exploitation 572 110
Article 37. Torture,
prohibition of capital punishment, and personal liberty 573 –
609 111
Article 38. Children in armed conflicts 610
–611 115
Article 39. Measures to promote physical and psychological
recovery
and social reintegration of the child 612 –
613 115
Article 40. Due process 614 – 654 115
Article 1. Definition of the child
1. All references to
children in this report cover boys and girls without any gender
differentiation.
2. In the words of the interpretive declaration made at
the time of ratifying the Convention, "The Argentine Republic declares that
the
article must be interpreted to the effect that a child means every human being
from the moment of conception up to the age of
18".
3. In this
connection, Decree No. 1406/98 of 7 December 1998 declared 25 March "Day of the
child to be born".
4. Argentina's current civil legislation
recognizes:
(i) Minors: persons who have not attained the age of 21 years (art. 126 of
the Civil Code);
(ii) Minors below the age of puberty: persons who have not attained the age
of 14 years (art. 127 of the Civil Code);
(iii) Adult minors: persons between the ages of 14 and 21 years (art. 127 of
the Civil Code).
The legal incapacity regime, which will be discussed
under article 12 of the Convention, is based on these
provisions.
Article 2. Application of the Convention without
discrimination
5. The Preamble to Argentina's Constitution
states:
"We, the representatives of the people of the Argentine Nation, gathered in
Constituent General Congress by the will and election
of the provinces which
compose the Nation, ... in order to ... provide for the common defence, promote
the general welfare and secure
the blessings of liberty for ourselves, for our
posterity, and for all persons throughout the world who wish to dwell on
Argentine
soil".
6. In Chapter 1 of the Constitution, on "Declarations,
rights and guarantees", article 20 states:
"Foreigners enjoy in the territory of the Nation all the civil rights of
citizens: they may exercise their industry, trade and profession;
own, buy and
sell real property; navigate the rivers and coasts; freely practise their
religion; make wills and marry under the laws.
They are not obliged to accept
citizenship, or to pay extraordinary compulsory taxes".
7. Where
non-discrimination is concerned, it must be pointed out that the enjoyment and
exercise of all the human rights protected
under the legislation in force in
Argentina are provided for in respect of all "inhabitants" of the Republic. As
the Supreme Court
of Justice has defined it, the term "inhabitants" covers both
Argentine nationals and foreigners and refers to the persons residing
in the
territory of the Republic with the intention of remaining in it, even though
they may not have established full legal domicile.
8. Under article 16 of
the Constitution all inhabitants are equal before the law. The Supreme Court
has interpreted this provision to mean that the guarantee of equality
before the
law consists in establishing equal legal treatment for persons in largely
similar circumstances, so that this guarantee
does not prevent the Legislature
from treating differently situations which it considers different, provided that
the distinctions
are not based on arbitrary criteria, undue favour or disfavour,
personal or class inferiority or privilege, or unlawful
persecution.
9. As to the provisions of the Constitution which grant
recognition to the rights protected by the Convention on the Rights of the
Child, the incorporation of article 75, paragraph
22, in the Constitution was an
amendment of fundamental importance, as reported in paragraph 44 of Argentina's
core document (HRI/CORE/1/Add.74):
"... treaties and concordats take precedence over laws. In the conditions
of their validity, the American Declaration of the Rights
and Duties of Man, the
Universal Declaration of Human Rights, the American Convention on Human Rights,
the International Covenant
on Economic, Social and Cultural Rights, the
International Covenant on Civil and Political Rights and the Optional Protocol
thereto,
the Convention on the Prevention and Punishment of the Crime of
Genocide, the International Convention on the Elimination of All
Forms of Racial
Discrimination, the Convention on the Elimination of All Forms of Discrimination
against Women, the Convention against
Torture and Cruel, Inhuman or Degrading
Treatment or Punishment, and the Convention on the Rights of the Child have
constitutional
rank, do not abrogate any article of the first part of this
Constitution, and shall be interpreted as complementary to the rights and
guarantees recognized thereby. They may be denounced, if necessary,
only by the
Executive, following approval by two thirds of the members of each
Chamber.
After being approved by Congress, other treaties and conventions on human
rights shall require the vote of two thirds of the members
of each Chamber in
order to acquire constitutional rank".
10. Following the 1994 reform of
the Constitution, the Convention enjoys constitutional rank, does not abrogate
any article of the first part of the Constitution, and must be interpreted as
complementary to the rights and guarantees recognized thereby. The wording of
paragraph 22 cited above,
quite apart from what has been expressly recognized by
the ordinary courts and the Supreme Court, establishes with complete clarity
the
possibility of invoking the Convention before the Argentine
courts.
11. Furthermore, the Supreme Court has established that "...the
harmony or concordance between the treaties and the Constitution is a
fundamental consideration. This is in fact clear from the reference to the
treaties which are invested with constitutional
rank and therefore may not and
have not entailed the abrogation of any provision of the Constitution, for that
would amount to a contradiction which could not be attributed to the framers of
the Constitution. (...) it must be interpreted to mean than the provisions of
the Constitution and those of the treaties enjoy the same rank and complement
each other, and that they may not therefore displace or destroy each
other...".
(Monges, Analía M. v. U.B.A., decision 2314/95, judgement of 26 December
1996).
12. The amendment introduced in article 75, paragraph 23, of the
Constitution added to the powers of the Congress:
"To enact and promote measures of affirmative action guaranteeing
genuine equality of opportunity and treatment and the full enjoyment and
exercise of the rights recognized by this Constitution and by the international
human rights treaties in force, particularly in respect of children,
women, older persons and disabled persons".
Governmental and joint bodies responsible for the introduction of
specific programmes for children
The Federal Council for the
Protection of Children and the Family
13. This Federal Council met in
the city of Mendoza from 9 to 12 December 1992. In addition to the preparatory
work and the drafting
of the conclusions of the federal encounter on children
and adolescents, attended by members of the executive authorities of the
State,
the provinces and the municipalities, representatives of various churches and
religious denominations, NGOs, UNICEF, and professionals
and social workers in
general, the Council drafted and unanimously decided to propose to the national
Government, the member governments
of the provinces and the community at large a
programme of targets for the period 1993-2000 in implementation of Act No.
23.849,
which approved the Convention; under this programme it will be
necessary:
(i) For the State to produce policies on children and the family in
fulfilment of its mandatory responsibility for such policies;
(ii) For the State to encourage the development of community, municipal and
district networks for the comprehensive care of children
and
adolescents;
(iii) For the State to promote the involvement of legally recognized bodies
in policy execution and supervise and control their activities,
which must be
consistent with the principles of the Convention;
(iv) For the State, acting through the specialized technical administrative
agency, to enact before 1995 regulations on the supervision
and control of all
NGOs working with children, in order to ensure the effective implementation of
policies consistent with the principles
of the Convention;
(v) To focus measures on the families at greatest risk and devise prevention
programmes to strengthen such families as a fundamental
social group and the
natural context for the growth and well-being of all their members, in
particular their children; more budgetary
resources must be allocated to these
programmes than are allocated to more general assistance programmes;
(vi) To introduce reforms to adapt education to children's real
needs;
(vii) To introduce changes in the existing legislation on the employment of
minors, with respect both to its substantive and to its
formal aspects, to
ensure that it takes full account of the principles of the Convention and the
constitutional guarantees accorded
to children as subjects of law
(1995);
(viii) To reformulate in all the provincial
jurisdictions[1] the
organizational-functional governmental (administrative and judicial) and
non-governmental arrangements in order to adapt them
to the Convention, bring
greater consistency to the formulation of policies for children and improve the
coordination of their implementation;
(ix) To eliminate before 1996 the practice of holding children aged under 18
who have broken the criminal law in police stations
and in prisons and
institutions run by the prisons service;
(x) To devise in all the jurisdictions alternatives to the practice of
holding juveniles in conflict with the criminal law in institutions,
including
measures of immediate evaluation, release on probation, specific treatment
measures, community orders and other measures
not involving deprivation of
liberty; interdisciplinary teams must be available in all cases to operate the
measures;
(xi) In the exceptional cases in which the temporary confinement of children
aged under 18 is necessary, to apply the United Nations
Minimum Rules for the
Treatment of Juveniles deprived of their Liberty;
(xii) Gradually to reduce the number of children held in governmental or
non-governmental care institutions by furnishing support
to their families and
introducing more programmes offering alternatives to placement in an
institution;
(xiii) To create specific programmes for the care of street children in all
the jurisdictions where they do not yet exist;
(xiv) To eliminate all exploitation of child labour by introducing
monitoring mechanisms and by encouraging every kind of alternative
arrangement
to enable children to attend school, obtain work training and support themselves
and their families, and to facilitate
their gradual integration.
The
Federal Social Development Council
14. A meeting was held on 19 July
1996 for senior officials of the social development offices of the provincial
jurisdictions and
representatives of the Secretariat for Social Development.
The meeting agreed to create the Federal Social Development Council with
a view
to coordination of social development activities throughout the country by
securing agreement among the various jurisdictions
on criteria for public social
policy.
The National Council for Children and the
Family
15. This National Council was created by Decree No. 1606/90 in
fulfilment of the commitment assumed by ratification of the Convention.
Its
functions and duties were endorsed by Decree No. 775/93, which accorded it
economic and financial independence in the administration
of its resources as a
decentralized agency of the national public administration. The Council's
functions and duties were described
in detail in the previous report
(CRC/C/8/Add.2 and 17).
The Office of the Procurator-General of the
Nation
16. On 4 August 1994 the Procurator-General of the Nation
issued a resolution containing a general instruction to all officials of
his
Office to the effect that they should apply in all the cases in which they act
the rights and guarantees accorded to children
in the Convention and
incorporated in the Constitution in article 75, paragraph 22. They must take
account of the Convention's constitutional rank and its primacy over national
procedural
legislation and over any legal provision which conflicts with it. (A
copy of this resolution is annexed to the report.)
The Ombudsman for
the Rights of the Child
17. In addition to the measures described
above, there is another measure which demonstrates even more clearly Argentina's
commitment
to its children and to its international obligations: the action
taken by the national Chamber of Deputies when it adopted without
amendment on
23 September 1998 a bill providing for the creation of the post of Ombudsman for
the Rights of the Child, who will be
concerned with the protection and promotion
of the children's rights established in the Constitution, the Convention and
other international treaties.
18. According to this bill the Ombudsman
will be nominated, appointed and removed by the National Congress by a
two-thirds majority
of the votes of the members present in each of the
Chambers.
19. The Ombudsman will be supported by an interdisciplinary
team consisting of a social worker, a doctor, a paediatrician, a psychologist,
a
lawyer, an educational psychologist, a person qualified in educational sciences,
and representatives of any other discipline which
may be regarded as necessary
for the efficient conduct of this work.
20. The Ombudsman will not have
to take orders from any person or comply with instructions from any authority.
Accordingly, he will
not accept intervention by any State agency which might
imply in any way an intention to control him and restrict the discharge of
his
functions.
21. It will be for the Ombudsman alone to determine which
cases to take action in. Application to the Ombudsman will be free of
charge.
22. The National Congress will appoint a deputy to the Ombudsman
to assist him in his work and replace him in the event of illness
or absence or
for any other reason.
23. The bill establishes a number of functions for
the Ombudsman:
- Investigation, acting of his own accord or on a complaint, of any acts or
omissions of the public administration or of non-governmental
bodies which
threaten, disregard or infringe the best interests of the child;
- Promotion and protection of children's rights by making representations
and recommendations to the competent public authorities
in order to safeguard
the enjoyment and exercise of these rights;
- Protection of children's individual and collective interests by virtue of
his power to take the actions referred to in article
43 of the
Constitution;
- Priority attention to the effective protection of children in vulnerable
circumstances or suffering a physical or mental disability;
- Making the necessary representations to the official agencies responsible
for monitoring and classifying public performances and
newspaper, radio,
television and cinema advertising in order to protect the rights of the
child;
- Supervision of the private and public institutions caring for children by
providing them with temporary or permanent shelter or
by carrying out
non-institutional care measures, and reporting to the competent public
authorities of any irregularity which threatens
or infringes children's
rights;
- Publicizing the situation and needs of children while at the same time
promoting and publicizing the rights of the child through
the mass media,
publications, seminars and conferences, with a view to encouraging the State and
the community to promote and protect
these rights;
- Receipt of any kind of application made by a child and any report made in
connection with a child either in person or by a permanent
free telephone
help-line, with immediate action to be taken on such application or
report;
- Proposal of legislative and other changes necessary for the adaptation of
the legislation on children to the Convention.
24. The bill also provides
that all public bodies and public or private physical and juridical persons are
obliged to collaborate
expeditiously and as a matter of priority with the
Ombudsman in his investigations and inspections.
25. To this end the
Ombudsman and his deputy will be empowered to request records, reports,
documents and background information and
any other items which they deem useful
for the purposes of their investigations. They may carry out inspections and
checks and any
other measure likely to assist an investigation.
26. The
bill provides that after verifying the accuracy of a report the Ombudsman
must:
- Initiate the civil or criminal proceedings necessary for safeguarding the
rights of the child through the Government Procurator's
Office;
- Report any irregularities found in the bodies responsible for
communicating to the Ombudsman the results of investigations;
- Formulate recommendations or proposals to public and private bodies
concerning the matters under investigation;
- Keep the public and the persons who lodged the complaint informed about
the results of the investigations and the measures taken.
He may take space on
radio and television and in the press for this purpose.
27. The
provincial authorities have created a variety of agencies to work in this
area.
Province of Mendoza
28. On 28 November 1995 Mendoza
adopted its Children's Act (No. 6.354), which was the first piece of provincial
legislation adapted
to the Convention. The following are among the most
important changes introduced by the Act:
- It incorporates the doctrine of the comprehensive protection of the rights
of the child and discards the doctrine of the irregular
situation;
- It transforms needs into rights by placing at centre stage the legal and
social assertion of the rights contained in the Convention,
and proposes
technical and legal instruments to ensure the defence of these rights;
- It lays the foundations for the non-institutional treatment of children in
article 2 of the Act, which states that "the purpose
of policies for children
and adolescents shall be to enable them to remain with their family", and posits
support for the family
as the big challenge for social policies and programmes
for children;
- It limits the intervention of the justice system in respect of the
separation of a child from his family for reasons of poverty,
and separates
social and family problems from crimes;
- It introduces basic constitutional guarantees accorded to citizens but
sometimes disregarded in the case of juveniles in conflict
with the criminal
law: the presumption of innocence, secrecy of proceedings, preliminary hearings,
flexible and speedy proceedings,
rehabilitation and reeducation, and
probation;
- It marks progress towards the formulation of a new concept of public
policy understood as the harmonization of the efforts of the
Government and
civil society.
Province of Chaco
29. Act No. 4.334/96
declared the Convention to be "of benefit to the province" and approved a
programme of "targets for implementation
of the Convention on the Rights of the
Child", which contains the following measures:
- Support for family groups in vulnerable circumstances, including
coordination work with various subprogrammes, such as the assistance
and
protection provided for the victims of domestic violence under the "Solidarity
Network" programme;
- The non-institutional care of children at greatest social risk;
- The prevention of abandonment by means of assistance for teenage mothers
at risk designed to preserve the mother-child relationship;
- Removal of the problems of juveniles from the purview of the courts and
elimination of the practice of holding juveniles deprived
of their liberty in
unsuitable places;
- Prevention and care services for children exhibiting conduct which places
them at risk;
- Opening-up of the institutions and involvement of civil society by means
of coordinated activities with NGOs, religious institutions,
private educational
establishments, and society at large.
Province of
Salta
30. According to the information received from the provincial
authorities, the provincial legislation and policies are currently undergoing
harmonization.
31. The centralization of the administration and execution
of the province's programmes is impairing the independence of the municipalities
in respect of the implementation of the social policies of the Interior
Secretariat. In the light of this difficulty the provincial
government ordered
the decentralization of the institutions of the Under-Secretariat for Family
Development, which include old-peoples'
homes and children's day-care centres
and homes. In addition to this decentralization, measures are being taken to
end the practice
of keeping children in institutions and to promote alternative
arrangements, transforming the day-care centres into family development
centres.
32. Without prejudice to these developments, intersectoral
meetings are being held for representatives of governmental and non-governmental
bodies and the three powers of the State, NGOs and intermediate institutions.
Two committees have been set up to study the drafting
of a children's bill to
give effect to the comprehensive protection model. Within this model the
necessary monitoring arrangements
will be made with the subsidized organizations
and training will be provided for the non-subsidized ones, in collaboration with
the
national authorities, which support a number of programmes (PRANI, FOPAR,
etc.).
33. The Honrar la Vida foundation, which is supported by the
Interior Secretariat has held "Children's rights days" and a "Children's
rights
march" with extensive grass-roots participation. The Under-Secretariat for
Family Development is planning to establish an
office to publicize the rights of
the child and increase people's awareness of them, and to produce alternative
programmes for tackling
the problems which arise from violations of these
rights.
34. Statistical information from this province will be found in
the annex.
Province of Tierra del Fuego, the Antarctic and the South
Atlantic Islands
35. The province's Constitution
states:
"On children:
Article 18: Children have the right to integrated protection and
training provided by and at the expense of their families; they deserve special
treatment and respect for their identity, and the State shall prevent and punish
any form of humiliation or exploitation of children.
Children are entitled to have the provincial State provide guarantees of
their rights through its preventive and subsidiary actions,
especially when they
suffer lack of protection, neglect, abuse of parental authority, or are subject
to any form of discrimination.
If a child lacks protection, the provincial State must make good this lack,
either in adoptive or foster families or in homes staffed
by qualified
personnel; the children's training must be based on the values of the Argentine
Nation, solidarity and friendship, without
prejudice to the obligation to
delegate measures to and seek inputs from the children's
families.
On young people:
Article 19: Young people are entitled to have the provincial State
promote their integrated development and provide opportunities for
self-improvement
and for creative contributions, with a view to their
comprehensive democratic, cultural and vocational training, the fostering of
a
national awareness of the need to build a fairer, more supportive and modern
society rooted in their environment, and their effective
participation in
community and political activities.
Any work done by young people is regarded as part of their education and
training. Payment for education and training shall not
be permitted under any
pretext".
Autonomous City of Buenos Aires
36. The City's
Constitution states:
"Chapter 10: Children and
adolescents
Article 39: The City recognizes children and adolescents to be
active holders of their rights and guarantees them comprehensive protection and
the right to be informed, consulted and heard. Their privacy shall be
respected. When in difficulties or under threat they may
themselves request
intervention by the competent agencies.
Public policies for children and adolescents shall be given priority over
other policies and must be designed to help them to remain
with their own
families and ensure that:
1. The City's responsibilities towards children and adolescents deprived of
their family is met through the provision of non-institutional
care;
2. Protection is furnished to victims of sexual violence and
exploitation;
3. Measures are taken to prevent and eradicate trafficking in
children.
The law shall provide for the creation of a specialized agency to promote
and coordinate the policies for the sector, which shall
have decentralized units
to carry out the activities on an interdisciplinary basis and with the
participation of the persons involved.
It would be mandatory for such an agency
to intervene in legal actions concerning maintenance.
Article 3. Best
interests of the child
37. The information given under article 2 of
the Convention provides a picture of the various national and provincial
regulations
and programmes founded on the best interests of the
child.
38. The firm commitment of the national courts to provide special
protection for children's best interests is reflected in the variety
of
jurisprudence establishing such protection:
"The best-interests principle is weak in relation to other weighty
influences, such as power and money, even though such influences
may operate in
the most irreproachable and transparent legality. There is therefore a need for
firm and decisive jurisprudence which
shows the community which road must be
followed for the protection of its children, especially when the school and the
family appear
powerless to check the advance of journalistic enterprises, which
cannot be allowed to interfere in children's lives under cover
of the right to
freedom of expression and the right to publish news without prior censorship".
(CNCiv., Chamber C, 3 October 1996
- P., V.A.)
"Children are entitled to special protection. The defence of their rights
must therefore prevail as the primary consideration in
any judicial matter, so
that in any conflict of interests of equal weight the moral and material
interests of the child must be given
priority over any other circumstance of the
case." (CNCiv., Chamber A, 28 May 1996.)
Province of
Chaco
39. The institutions providing day care for children aged three
months to 12 years while their parents are at work are covered by
the "Casas del
Sol" (Houses of the Sun) subprogramme. A start was made on the reorganization
of this care in 1997, with the interest
of the children as the focus of the
work.
40. A framework programme was formulated for this purpose; it is
guided in legal respects by the province's Statute on Children and
the Family
and by the Convention.
41. Since the Casas del Sol comprise 43
institutions in various parts of the province (30 localities), it was decided
that the reorganization
should proceed in stages. Each stage involves a certain
number of institutions, where the situation is subjected to study and analysis
and planning exercises are conducted with regard to its social and its
administrative, educational, nutritional, regulatory and staffing
aspects.
Province of Chubut
42. Article 6 of the Act on
the integrated protection of children and the family establishes that the best
interests of children
and adolescents shall be regarded as primordial in all
measures affecting them which public or private social agencies and judicial,
administrative or legislative organs take or intervene in.
Article 4.
Economic, social and cultural rights. General framework
43. Argentina
is going through a period characterized by a number of important macroeconomic
achievements in the framework of the
neo-liberal economic adjustment established
by the Government. The period is one of economic stability, inflation having
been brought
under control as one of the consequences of the Convertibility Plan
and the country's economic dynamism; for the moment, the outstanding
need is to
improve social investment. Important elements of this strategy are the reform
of the State, the privatization of public
enterprises, and the decentralization
of powers, responsibilities and services to the provincial and municipal
authorities.
44. Despite progress in curbing inflation and improvements
in macroeconomic variables, there has been little significant improvement
in
living conditions: sizeable segments of the population continue to live below
the poverty line, and unemployment, underemployment
and informal and
unregistered employment have increased, while at the same time real wages have
fallen and the housing deficit has
become an increasingly complex
problem.
45. Furthermore, among marginal groups, particularly in rural
areas and poor peri-urban areas and suburban and urban "squats", where
there is
less economic self-sufficiency and greater social frustration, old problems such
as chronic nutritional deficiency and malnutrition,
iodine and iron deficiency,
food poisoning, violence, desertion and child abuse have persisted.
46. A
process of reform got under way in the education sector in 1997. As yet, no
positive changes in educational levels have been
noted in comparison with the
preceding period and there are wide variations from province to
province.
47. Health service coverage is high in the urban areas where
the insured population is concentrated, although there are significant
pockets
of inadequate care in poor sectors of the Buenos Aires conurbation, rural areas
and the interior of many of the provinces.
48. The health infrastructure
is very extensive and widely dispersed, which explains the lack of up-to-date
information on coverage.
In 1986, according to the Ministry of Health and
Social Welfare,
Argentina had 6,500 outpatient clinics, 3,180 hospitals and 147,000 beds. In
January 1992 the Ministry transferred all medical services
to the municipality
of Buenos Aires and the provinces. The proposal to deregulate the welfare
system may well result in an entrenchment
of inequities under a system that
would give the user freedom of choice and provide care packages based on the
ability to pay. A
number of partial studies point to shrinking health service
coverage among younger groups. At the same time, the public sector is
steadily
deteriorating.
49. For specific information on the rights guaranteed
under this article, see the sections of this report on articles 6, 24, 26, 27,
28, 29, 31 and 32.
Article 5. Respect for the responsibilities, rights
and duties of persons legally responsible for children
50. As will be
discussed under articles 18, 19 and 20, the current legislation addresses the
responsibilities, rights and duties of
parents and other persons legally
responsible for children.
Article 6. Right to life
51. This
section reports on the programmes introduced to reduce infant mortality,
increase life expectancy, and control malnutrition
and epidemics. The
information given here was included in the second periodic report of the
Republic of Argentina under the Covenant
on Economic, Social and Cultural Rights
submitted in April 1997 (E/1990/6/Add.16).
Factors affecting
health
52. As mentioned earlier, despite progress in curbing
inflation and improvements in macroeconomic variables, there has been little
significant improvement in living conditions: sizeable segments of the
population continue to live below the poverty line.
Health
indicators
53. The slow decline in infant mortality (23.9 per
thousand live births in 1992, 22 per thousand in 1994) and in the gross
mortality
rate are continuing, and life expectancy at birth is increasing (68
years for men and 74.8 for women). There are still substantial
levels of infant
mortality due to avoidable causes (in 1990, only 16% of neonatal deaths and
23.9% of post-neonatal deaths were due
to non-avoidable diseases) and
substantial differences between provinces (in Tierra del Fuego 11.2 per thousand
live births, and
in Chaco 33.5 per thousand in 1992 and 31.4 per thousand in
1994). (See tables 45 and 46 in the annex.)
54. Health conditions remain
unchanged. The main causes of death continue to be heart disease, malignant
tumours, cerebrovascular
disease and accidents. Deaths due to arteriosclerosis
as a single disease and to certain infections during the perinatal period
have
declined. The incidence of AIDS has grown; it is estimated that every day there
are an average of three new cases, and between
15 and 45 new cases of
infection.
55. Generally speaking, the incidence of preventable diseases
remains stable thanks to the Immunization Programme, except for tuberculosis,
which is increasing. The number of cases of meningoencephalitis, malaria,
leprosy and leishmaniasis has remained stable. The number
of cases of cholera
has declined in relation to the previous period (2,008 in 1993, and 847 up to
September in 1994).
56. Chagas's disease continues to be the most endemic disease in Argentina,
although its geographical incidence is largely confined
to the central valley of
Catamarca and its serological prevalence continues to
decline.
57. Accidents and violence still occupy fourth place as causes
of death and give rise to serious concern, both because they can be
avoided and
because of the loss of years of life which they cause. There has been no change
in the problems and levels of dental
and oral pathology.
Plans and
priorities for improving the nation's health
58. On the basis of the
definition of the substantive and instrumental health policies decreed in 1992,
the Government has geared
its efforts to stimulating a number of changes in the
structure and functioning of medical services, through reform measures such
as
the deregulation of social projects, decentralization programmes and
introduction of public hospital tariffs (self-management)
and by ensuring the
quality of care, together with the strengthening of the capacity for
legislation, regulation and control of the
principal management units at the
central level. The strategic and programmatic guidelines and priority policies
of the Pan-American
Health Organization (PAHO) emphasize approaches which link
health needs and the integral development of societies, the restructuring
of
health systems through decentralization strategies, local participation and
coordination in order to gain in equity, effectiveness
and efficiency, the
concentration of efforts on programmes geared to priority problems and groups
(targeting), and promoting efficient
forms of investment in the improvement of
the environmental situation. The priorities of the current period of government
are defined
by integration of the two thrusts of development
policy.
Infant mortality statistics: 0 to 11
months
59. The national infant mortality rate was 33.2 per thousand
in 1980, 26.2 in 1985, 24.7 in 1991, 22.9 in 1993, 22.0 in 1994, and
20.9 in
1996 (see annexes).
60. One noticeable feature is the difference in the
death rate by sex. In all regions of the country the male infant mortality rate
is higher than the female by an average of approximately five
points.
61. From 1980 to 1991 the rate for the country as a whole
decreased by about 25%, for Chaco by 40% and for the Federal Capital by
18%.
62. The average rate for 1996 (20.9 per thousand) conceals some
significant regional variations. Higher-than-average rates are found
in the
North-East (30) and the North-West (30.5), intermediate values in Cuyo (24.6)
and La Pampa (23.5), and the lowest in Comahue
(20), Patagonia (19.1) and the
Federal Capital, with a rate of 15.2 per thousand live births. The very low
rates for some provinces
having high overall poverty indicators suggest
under-registration of births.
63. In 1996, there was a total of 14,141
infant deaths (20.9 per thousand), 8,553 of them occurring during the first 28
days of life
(neonatal mortality). The greatest concentration of deaths occurs
between 0 and 6 days (early neonatal mortality), most within the
first 24
hours.
64. The decrease in the mortality rate is due to the decrease in
immuno-preventable diseases as a result of the development of specific
vaccinations and to the decline in the incidence of diarrhoea and pneumonia
among both females and males. On the other hand, neonatal
mortality remains
stable despite technological progress and the relative ease of its
avoidance.
65. Perinatal causes are responsible for 50% of child deaths.
They are the leading cause of mortality (not only in the first year
of life but
also up to age 10). The most important problems in this area are
premature birth and low birth weight, together with a high percentage of
maternal deaths. These two problems present a health challenge
that cannot be
met by paediatricians and neonatal specialists alone. It is estimated that some
70% of such deaths are avoidable,
especially by means of pregnancy checks and
proper care during childbirth.
66. Very low birth weight (less than 1,500
grams) accounts for 0.73% of the total, and low birth weight (less than 2,500
grams) for
5.6%. In 16.16% of cases, birth weight is not known: the provinces
of Santa Fe, Santiago del Estero and Catamarca do not report
the weight of
newborn babies. It is estimated that if the quality of this information was
improved the figure for low birth weight
would be about 10%.
67. See the
annexes.
Children immunized (with breakdowns)
68. See the
annexes on vaccination.
69. Life expectancy (by urban and rural
area, socio-economic group and sex)
Estimated life expectancy at birth
Human resources in use during the 1980s, by sex and final
level
of education (percentages)
Education level
|
Women
|
Men
|
Total
|
100.0
|
100.0
|
Did not complete primary
|
1.4
|
0.5
|
Completed primary
|
36.7
|
7.5
|
Did not complete secondary
|
11.4
|
3.4
|
Completed secondary
|
13.2
|
4.3
|
Did not complete tertiary
|
0.2
|
0.1
|
Completed tertiary
|
3.7
|
0.9
|
Did not complete university
|
1.5
|
1.9
|
Completed university
|
25.2
|
79.8
|
Not specified
|
6.7
|
1.6
|
Maternal mortality
70. Unlike other Latin American
countries, the Argentine Republic has a low average fertility rate (2.8 children
per woman), compared
to which the maternal mortality rate is high. In 1996, the
rate for the country was 47 per 100,000 live births; although the rate
has
fallen, it is still high by international standards, especially as
under-registration is estimated at 50%. The Regional Plan
of Action to reduce
maternal mortality in the Americas proposed a reduction of 30% by 1995 and 50%
by 2000.
71. In 1996, 317 maternal deaths were recorded, 117 of them due
to miscarriages and two thirds to obstetric causes. Seventeen of
the deaths
were attributed to indirect obstetric causes. Mortality was highest among women
aged over 35.
72. In 1980, La Pampa region accounted for 39% of maternal
deaths, followed by the North-West with 26.59% and the North-East with
19.38%.
In 1985, the rate in La Pampa region rose to 40.59%, the North-West accounted
for 25%, and in the North-East the rate rose
slightly to 21.35%. In 1991,
La Pampa fell to 28% and the North-West to 24%, while the North-East rose
to 30.51% of the total.
These statistics should be viewed in the light of the
differences between the regions in terms of population distribution and
fertility.
73. While it is true that the maternal mortality rates fell
over the decade, it is also the case that in the event of complications
women
were referred to the more sophisticated institutions in their
area.
Problems of
under-registration
74. Under-registration of maternal mortality, a
problem recognized in countries whose information systems are more efficient
than
Argentina's, occurs when there is a failure to report the death of a woman
aged 15-49 resulting from pregnancy, childbirth or puerperal
complications
within 42 days of the birth (the time limit for maternal
mortality).
75. Deaths from infections and anaesthetic accidents, for
example, are more widespread among women aged 15-49 than among men in the
same
age group. These deaths may be connected with the reproductive process and they
should be analyzed in order to determine their
influence on maternal mortality
rates.
76. A study of the under-registration of maternal deaths found
that the official records put the maternal mortality rate in the Federal
Capital
in 1985 at 50 per 100,000 live births (40 maternal deaths). On examination of
the medical records, the rate was readjusted
upwards to 91.4 per 100,000 live
births (75 maternal deaths). In other words, under-registration for that time
and place was 53.3%.
Maternal deaths and quality of
care
77. The same study found that the causes of maternal deaths
related either to miscarriage or to delivery. Caesarian sections accounted
for
70% of the latter. The miscarriage rate was calculated at one for every four or
five deliveries, which gives a rate of 122-152
deaths per 100,000
miscarriages.
78. The mortality rate for Caesarian sections is estimated
at 77-79 deaths per 100,000 live births, while the rate for vaginal deliveries
is 13-17 per 100,000 live births. Both these rates are higher than those
recorded in developed countries.
79. In terms of clinical causes, 38% of
deaths were due to miscarriages and 21% to septicaemia. Mortality from
miscarriage is 25%
above standard-age adjusted rates (England and Wales) and
mortality from septicaemia is 18 times higher than the standard.
80. This
difference in mortality rates is related to variations in the quality of care in
the health services. Septicaemia is the
leading cause of death in both normal
vaginal deliveries and Caesarian sections. It was estimated that inadequate
medical attention
was involved in 44% of the case histories of miscarriage and
in 26% of the cases of septicaemia. One recurrent factor was noted:
the
inappropriate use of antibiotic treatment in terms of both type and dosage, a
shortcoming that reveals a wide gap between advances
in the understanding of
infection and the application of this new knowledge. There was also a lack of
standard guidelines to aid
in surgical decision-making. Decisions relating to
surgery should be a component of the treatment plan and not a last
resort.
81. Of the maternal deaths analyzed, 72% corresponded to women
from low-income segments of the population and 13.8% to women from
middle-income
segments. The services available to higher-risk groups are of lower quality and
less able to deal effectively with
problems.
Place of
childbirth
82. Hospital births increased by 42.5% to cover 97% of all
births in 1996. Births in governmental establishments (national, provincial
and
municipal hospitals) account for just over 50% of the total.
83. The rate
of home births is very low (1.8% in 1996) and even this rate varies widely
according to region, representing a quarter
of all births in Santiago del
Estero, for example. Hospital births have increased in number. Home births
remain at high levels
in the provinces with the highest rates of infant
mortality.
Infant malnutrition
84. Malnutrition is one of
the causes of infant mortality, but Argentina is not in a position to conduct a
comprehensive study of
the nutritional health of mothers and children owing to
the lack of suitable records in several provinces and to variations in the
indicators and ranges used from one province to another. Progress is being made
towards the keeping of comparable records of malnutrition
rates for at least the
most vulnerable age group - children aged under two
years.
85. Nutritional health is assessed mainly through anthropometric
data (height and weight measurements), which are compared with standard
measurements for normal growth.
86. The only information available
consists of selective studies of specific geographical areas or population
groups and information
from primary health care records in a few
provinces.
87. One 1991 study, using information provided by the managers
of the Maternal and Child Programme in a few provinces, indicated the
following
situations:
Salta
|
0-2 years: overall prevalence of 18%; 2-5 years: 10%
|
Jujuy
|
0-5 years: about 19%
|
Both provinces are in the North-West region, where nutritional
deficiencies are among the five main causes of death in both girls
and boys in
the 0-9 age group.
Comahue region
Neuquén
|
First year of life - 9%
|
Río Negro
|
First year of life - 18%
|
Patagonia region
Chubut
|
First year of life: 7.1%;
1-2 years: 15%; 2-4 years: 20% |
88. Low birth weight is a direct indicator of maternal malnutrition and
represents a risk for newborn babies.
89. See the annex: National
Commitment to Mothers and Children; and National Plan of Action for Mothers and
Children.
Measures taken to reduce the rates of still-births and
infant mortality
90. The following measures have been taken by the
Government, through the Under-Secretariat for Community Health of the Ministry
of
Health and Social Welfare, to reduce the rates of still-births and infant
mortality and enhance children's
development:
Publications
- National Commitment to
Mothers and Children;
- National Plan of Action for Mothers and
Children;
- Principles of Perinatology (in six
volumes);
- Handbook of Nutritional Training;
- Training Module
for Breastfeeding.
Training
- Transfers between
provincial jurisdictions;
- Direct training by the Office for Mothers
and Children.
Data processing
- Transfer of funds for the
purchase of computer equipment;
- Implementation of the computer network covering the perinatal period,
children, adolescents and nutrition.
Nutritional support
- Transfer of funds to the provinces for the purchase of powdered milk to
guarantee the supply under each
programme.
Breastfeeding
- Advisory Commission on
Breastfeeding;
- The "Mother-and-child-friendly hospitals" project: 10
hospitals evaluated.
Equipment
- Transfer of funds for the purchase of low- and medium-tech
equipment.
Medicines
- Purchase of medicines for perinatology and nutrition programmes, acute
respiratory infections, control of diarrhoeal diseases,
etc.
Evaluation of services
- The efficiency of the maternal and child health services is evaluated by
using the PAHO evaluation handbook to detect and identify
the main deficiencies
in the following areas: physical plant, human resources, programming standards
and procedures, administration,
supplies, and health
education.
Management audit and monitoring
- The aim is to verify the use of the transferred funds and the degree to
which the different programmes have been implemented.
Evaluation of
target achievement: consolidation of target indicators
- Meetings were held throughout the country with the programme heads from
each province to agree on the indicators (April/June) and
later in the year
(October) to evaluate the target achievement.
91. For information on
children at risk, see the information supplied under article 10 concerning the
activities of the National Council
for Children and the Family.
Measures taken for the prevention, treatment and control of epidemic,
endemic and occupational diseases
92. In 1993 and 1994, tripartite
national meetings were held at the initiative of PAHO for the purpose of
drafting a national workers'
health plan. The following were the plan's
objectives:
(i) To control and reduce occupational hazards;
(ii) To determine the priority to be given to the promotion and protection
of health in the labour sector; and
(iii) To improve the workers' sickness insurance scheme.
Argentina
also participated in the tripartite regional workers' health meeting held in
Porto Alegre, Brazil, in 1993. Representatives
of workers, employers and the
Ministries of Health and Labour of Brazil, Chile, Paraguay, Uruguay and
Argentina met to draw up health
strategies for the region's
workers.
93. Argentina has the following programmes to provide
disadvantaged groups with access to health services:
(i) Non-contributory pension schemes. These benefits are designed to meet
the needs of the persons covered by special pension legislation
(mothers with
unmet basic needs and more than seven children, persons aged over 80, disabled
persons, etc.) by providing pensions
and medical cover;
(ii) Subsidies to institutions to support projects of governmental and
non-governmental bodies;
(iii) Personal subsidies to meet emergency situations affecting persons
living in extreme poverty.
Measures concerning education in the existing health problems and means
of preventing and controlling them
94. The Under-Secretariat for
Community Health of the Ministry of Health and Social Welfare has carried out,
as part of its health
resources and programmes activities, a number of projects
for the production and dissemination of educational materials,
including:
Journals
Health Education, No. 55, 40,000 copies. Main topic: "Cholera".
Country-wide distribution through the provincial health education
departments
and the formal education system;
Health Education, No. 56, 40,000 copies. Main topic: "AIDS". Country-wide
distribution.
Pamphlets
Maternal and Child
Health;
Breastfeeding;
Be careful of the Sun;
Lice
Infestation;
Malaria.
The pamphlets are distributed nation-wide, and 20,000 copies of each were
printed.
Publication of technical reports intended specifically for
health-care professionals:
Health Education, No. 1 (1995); topic: "AIDS.
The epidemic of modern times";
Health Education; topic: "Domestic
violence";
In preparation: "Alcoholism", "Tobacco addiction" and "Food
safety".
Guidance is also provided in the various Ministry and NGO policy
areas.
The media
Argentina's educational television system, a branch of the Media Secretariat
of the Office of the President, has produced free television
spots on: (a)
cholera; (b) Argentine haemorrhagic fever; (c) alcoholism; (d) vaccination; and
(e) accidents. Spots on oral health
and accidents in the home are in
preparation.
Annual vaccination weeks (26 June to 2 July). An intensive media campaign
is conducted throughout the country.
Press releases on various health-related topics, including: World Health
Day; prevention and treatment of heatstroke; carbon monoxide
alert;
breastfeeding week, etc.
Public services, principally for teachers and schoolchildren and
representatives of public welfare organizations. Total consultations
during the
first half of 1996: 664.
Health theatre: technical support is given to independent groups of stage
actors and directors for the scripting and staging of a
play about alcoholism,
in cooperation with the CUIDA programme of the Office for the Promotion and
Protection of Health.
Activities for the improvement of health
education
Standing Advisory Commission to Combat Diabetes; Standing Technical Advisory
Group on Comprehensive Health Care for Teenagers; National
Commission to Combat
Tobacco Addiction; Coordinating Committee for the Participation of NGOs and
Health Promotion Bodies; Working
group composed of members of the Ministry of
Culture and Education and of the Secretariat for the Prevention of Drug
Addiction and
the Control of Drug Trafficking; National Commission for the
Promotion of Breastfeeding; National Commission for Action to Improve
Nutrition;
National Responsible Parenthood Commission; National Commission for the
Prevention and Control of Cholera; National Traffic
and Road Safety Commission;
and Working Group on Violence.
Evaluation of training and community
outreach projects by public welfare bodies.
National centre for grass-roots organizations of the Secretariat for Social
Development. Information and Incentives Day at the National
Library and
establishment of a permanent coordinated structure for relations with health
NGOs.
Evaluation of the health education department of the National Institute for
Nutritional Research, Salta province, July 1995.
Evaluation of the Lomas de Zamora Hospital and mother and child clinic,
Buenos Aires province, in collaboration with the Office for
Maternal and Child
Health.
Special events: Books Fair (1995) - evaluation of reference works and
distribution of educational materials; International Congress
for the Prevention
and Treatment of Drug Dependency - prevention programme in schools (1995);
seminar on teenage health management
organized by the Office for Maternal and
Child Health and the Mother and Child Programme of Buenos Aires province (1995);
World Health
Day, Target 2000: A World Without Polio - various
activities.
National priorities for technical cooperation with
PAHO
1. Health in the framework of
development
95. This programme focuses on strengthening the health
measures affecting development at the level of governmental economic and social
policies, including the reform of the State, as well as the measures for
improvement of the monitoring and evaluation of the people's
health. It seeks
to strengthen proposals concerning scientific and technological development,
health, women and development, workers'
health, and social participation. It
includes management support for national health development by means of closer
links with PAHO/WHO
representatives in Argentina and technical cooperation among
countries through the regional integration project of their technical
cooperation services.
2. Development of health
services
96. This programme aims at strengthening coordination among
the various health agencies in order to achieve provincial and municipal
decentralization and integration at the local level. At the central and
provincial levels the aim is to strengthen policies, plans
and standards and
State regulation and control. The aim at the municipal level is to organize and
operate pluralistic and complementary
health service networks for greater
efficiency in the provision of individual and collective health care services.
Efforts focus
on strengthening the role of public hospitals in such networks
through self-management and improving the performance of public and
private
health providers under a guarantee of health-care quality.
3. Human
resources development in the health sector
97. This programme aims at
developing human resources of critical importance to the sector by radical
reorganization of existing undergraduate
and postgraduate courses and improving
personnel management in the national and provincial health
services.
4. Health promotion and protection
98. This is
considered to be a priority programme by the Government; it focuses on the
development of projects at both individual
and collective levels aimed at
modifying risk factors and lifestyles associated with the most prevalent
non-communicable chronic
diseases. It includes strategies for helping to
promote a culture of health at the grass-roots level, such as the "healthy
communities"
strategy. Particular emphasis is placed on health-promotion
activities relating to mothers, teenagers, dissemination of scientific
and
technical information, and the media.
5. Health and the
environment
99. This is considered to be a priority programme by the
Government; it aims at reducing environmental health risks for the population
and achieving compliance with the international agreements and conventions
resulting from the United Nations Conference on Environment
and Development
(UNCED-92).
100. Special emphasis is to be placed on the Argentine
component of the Plan for Regional Investment in Environment and Health.
6. Control and prevention of communicable diseases
101. This
programme supplements the national efforts to reduce the morbidity and mortality
rates for preventable communicable diseases
that are a public health problem in
Argentina, such as: Chagas's disease, dengue, tuberculosis and other
immuno-preventable diseases,
etc. AIDS is of special importance. It involves
participation in a series of comprehensive measures to strengthen the national
and provincial programmes, support research activities, media outreach,
diagnosis, and treatment. Special emphasis is to be placed
on cross-cutting
programme activities in localities regarded as priorities.
102. The
information given under article 24 covers the specific health plans which are
being carried out.
103. It is also important to note that Argentina's
national legislation contains procedures and specific measures to combat
domestic
violence and that Argentina has ratified the Worst Forms of Child
Labour Convention.
104. Attention should also be drawn to the fruitful
work carried out in Argentina by UNICEF since it set up here in 1985. The
national
and provincial governments and NGOs have benefited from its technical
cooperation plans. The programme for Argentina - the master
plan for operations
in the country - and its creative measures for social outreach and mobilization
were honoured by a "Staff Award",
Argentina being the first Latin American
country to receive such recognition.
105. In collaboration with UNICEF,
the Argentine Government has managed to achieve the goals established for the
mid-1990s at the
World Summit for Children. These include: an increase in
vaccination levels to 80% or higher throughout the country; the elimination
of
polio; ensuring that at least 80% of children aged under two years receive
adequate levels of vitamin A; a reduction in levels
of severe and moderate
malnutrition; and increased coverage in primary schools.
Province of
Santa Fe
106. Activities were started up under a nutritional recovery
programme in May 1997. They are carried out jointly by the Ministry
of Health
and the Environment and the Secretariat for Community Development with the aim
of restoring the health and upgrading the
diet of children with low birth
weight.
107. The two ministries established an implementation unit made
up of members of their own professional staff (paediatricians, nurses,
health
workers and social workers).
108. The following measures are taken in
connection with children identified by a health centre as having low birth
weight:
- The lists of undernourished children are compared with the lists of the
food and nutritional services available in the local community,
in order to
determine how many of them are providing help, the cause of the malnutrition,
and whether any food supplements are needed.
- A socio-economic check is made in order to determine the composition of
the family group, who is the breadwinner, and, if the family
is not in touch
with a nutritional service, to make such a service available and request it to
carry out the relevant medical tests.
- The children's mothers are interviewed by the institution which their
children usually attend; if they are not attending an institution,
they are
summoned to attend the institution closest to their home. The purpose is to
deliver to the mothers a basket of foods and
give them comprehensive counselling
on the problem. The principal argument is that improved results will require
the children's
regular attendance at a food-distribution canteen and compliance
with the schedule of medical checks.
109. The responsibility of
furnishing daily food to large groups of the population entails not only
supplying the food but also facilitating
its improved use by means of
nutritional and health education. There is also a system for the permanent
monitoring of the children,
in the form, for example, of the daily
medical-certification checks carried out by the community
institutions.
110. In May 1997 there were 170 children listed as having
low birth weight; 77 of them came from families whose children attended
food-distribution canteens.
111. In June a further 50 children who were
not attending a food-distribution canteen were added to the list, and the
programme assisted
120 children.
112. Thirteen more children were added
in July, but 10 children were discharged from the programme. Assistance was
furnished to 120
children.
113. In August the number of children in the
programme stood at 223, and assistance was furnished to 190
children.
114. In September the total number of children stood at 268,
and 200 were given help. By the end of 1997, 45% of the children had
been
discharged, but the nutritional assistance was continued for a little longer in
some cases, depending on the assessment made
by the programme's implementation
unit.
Article 7. Identity, name and
nationality
Registration of newborn babies
115. The
persons who have a legal duty to request the registration of a birth are
indicated in article 30 of Decree No. 8204/63 on
the Civil Registry,
namely:
(i) The father or mother or, in their absence, the closest
relative;
(ii) The administrators of hospitals, prisons, orphanages, etc., in respect
of births occurring in such institutions which are not
registered by one of the
persons indicated in paragraph (i) above;
(iii) Any person finding a
newborn baby or in whose home a newborn baby is found;
(iv) The authority responsible for maintaining the register of events
occurring on board ships at sea.
116. Application for local registration,
article 28 of Decree No. 8204/63 notwithstanding, must be made within 40 days; a
court order
is required in all cases of the registration of a child aged over
six years.
117. Act No. 24.755 was adopted on 30 December 1996 with a
view to ending the problem of unregistered and undocumented children.
The aim
was to simplify the registration procedure. Parents were granted exemption from
the fines which they might otherwise have
incurred for breaches of Act
No. 17.671 under an amnesty running until 30 December
1997.
Procedures for the identification of newborn babies: Act No.
24.540
118. The Congress passed Act No. 24.540 on 9 August 1995.
This Act laid down the criteria and procedures for establishing the identity
of
newborn babies.
119. The Act's regulations are now being drafted. For
this purpose, the Interior Ministry's Under-Secretariat for Human and Social
Rights set up an advisory committee consisting of representatives of the
National Commission on the Right to an Identity, the Health
Ministry's Office
for Maternal and Child Health, the National Institute of Medical Genetics, the
Argentine Paediatric Society, the
Health Committee of the Chamber of Deputies,
the Ministry of Justice, the Legislature of Buenos Aires City, the Federal
Police, and
the National Population Register.
120. The committee produced
a bill intended primarily to fill a big gap in the formal mechanisms and
instruments pertaining to personal
identity, and at the same time to provide an
essential legal instrument establishing the inviolability of the mother-child
relationship
and ensuring the security and effectiveness of the identification
procedures by means of a genetic fingerprint register.
121. The bill
establishes the procedure for identification of children and the implications
for registration and family affiliation,
in order to guarantee all children
recognition of their identity and ensure their comprehensive development on that
basis, and to
enable them to exercise their right to a
nationality.
122. The "genetic fingerprint" consists of blood samples
from mother and child, which are stored in a single identification card.
This
card will have two original copies: one will be kept in the Civil Registry and
the other in the National Genetic Data Bank.
In practical terms, the genetic
fingerprint consists of a drop of the mother's blood and a drop from the child's
umbilical cord
stored on blotting paper.
Right to a
nationality
123. Pursuant to Act No. 346 the following persons are
Argentinians:
(a) All persons born within the territory of the Republic,
whatever their parents' nationality, except for children of ministers
of foreign
countries and other members of the diplomatic community resident in
Argentina;
(b) Children of native Argentinians who, although born in
another country, choose to take the citizenship of their
parents;
(c) Persons born in missions or on warships of
Argentina;
(d) Persons born in neutral waters under the Argentine
flag.
124. The acquisition of nationality is not affected by the child's
sex or birth status (born within or out of wedlock). It is thus
clear that the
national legislation in force accords males and females equal treatment in terms
of the right to a nationality.
125. The enabling regulations for this Act
stipulate that the children of an Argentine-born father or mother obtain
citizenship by
right simply by establishing the facts of their birth. In the
case of children under 18 years of age having an Argentine-born father
or mother
who was not recognized as a national by the State where the birth occurred or
who was stateless for some other reason,
Argentine nationality may claimed on
their behalf by the person exercising parental authority, provided that such
person proves that
the child satisfies the necessary
conditions.
126. Attention is drawn to the following examples of progress
in connection with the exercise of the right to a nationality:
(i) The current legal system does not provide for the loss or withdrawal of
Argentine nationality. Act No. 23.059 reinstates Act
No. 346 (as amended by
Acts Nos. 16.801 and 20.835) and rescinds all other amendments,
including the ones contained in Act No. 21.795
concerning loss and
withdrawal of nationality;
(ii) Article 3 of the Act "declares invalid and without legal effect the
loss or cancellation of Argentine nationality ... ordered
under articles ... of
de facto Act No. 21.795 and those effected when de facto Act No. 27.610 was in
force", while article 4 states
that "the persons affected by those measures
shall have their Argentine nationality restored automatically upon the entry
into force
of the present Act".
(iii) Act No. 24.533 amends articles 10 and 11 of Act No. 346. The
amendments are of a technical nature and are designed to streamline
the
procedure for obtaining the citizenship card.
Right to a
name
127. Article 1 of Act No. 18.248 establishes that every natural
person has the right and the duty to use his or her given name and
family name
in accordance with the provisions of the Act.
128. Given name: this is
acquired by entry in the birth certificate. It is chosen by the parents or, if
one of the parents is absent
or prevented from attending, by the other parent or
the persons so authorized by the parents. Failing that, it may be chosen by
the
guardians, the Government Procurator for Minors or the officials of the Registry
of Civil Status and Capacity (art. 2).
129. Indigenous names: the Act
guarantees the right to use indigenous names or derivatives of indigenous names
of peoples of Argentina
and other Latin American countries (art. 3
bis).
130. The national courts have ruled in this connection
that:
"The rights of the child accorded by Act No. 18.248 and by the Convention
on the Rights of the Child (art. 8 et seq.), which has constitutional
rank, must be taken into consideration in respect of permission to register a
name, and the biological
relationship shall take precedence in this matter".
(CNCiv., Chamber G, 14 March 1995. Caiña, Carlos A. v. Civil
Registry.)
Autonomous City of Buenos Aires
131. The
Constitution of the Autonomous City of Buenos Aires reads in
part:
"Article 12. The City guarantees:
1. The right to a personal identity. The City shall establish a child's
identity immediately after its birth, using the most efficient
and secure
scientific and administrative methods. In no case shall the failure of the
mother to produce personal documents obstruct
the granting of an identity to a
newborn baby. The tracing and identification of any persons whose identity has
been deleted or
altered must be facilitated. The City shall operate official
agencies to carry out genetic tests to determine the
filiation.
Province of Chaco
132. One of the concerns
shared by all the subprogrammes for children is the right to an identity and the
problem of undocumented
children. Various measures are being taken to tackle
the problem:
(a) The "Candelaria" (Candlemass) subprogramme encourages
parents to register their children's births in the Civil Register and it
provides advice on this procedure. The situation of children whose biological
parents are not present is being studied in working
groups, and individual
interviews are conducted in order to identify the needs of every child in
respect of establishing his origins;
(b) The "Porvenir" (Future)
subprogramme makes reference to the filiation procedure (registration in the
Civil Register for issue
of the national identity document);
(c) At
present, as a result of coordination between the Documentation Centre and the
Civil Registry, undocumented children of any
age from anywhere in the province
are being registered at the Civil Registry office closest to their home. This
procedure is uncomplicated
and not subject to payment of fees;
(d) Lack
of documents has been identified as an obstacle to children's enrolment in
school. The "Volver a Casa" (Return Home) subprogramme
has been carrying out
measures to solve this problem by dealing with individual cases. The situation
of the children involved in
this programme is being regularized, and the aim was
to deal with all the children in the course of 1998.
Province of
Chubut
133. The Act on the comprehensive protection of children,
adolescents and the family guarantees the right to an identity, including
a
nationality, a name, recognition of one's biological family, culture, language
of origin and family relations, in accordance with
the law.
134. If a
child lacks any or all of these elements, the State furnishes appropriate
assistance and protection in order to make good
the lack, as well as ensuring
that:
- The public and private institutions providing pregnancy and childbirth
services and care for newborn babies establish the identify
of both mother and
child and safeguard the mother-child relationship throughout their stay in the
institution;
- The public and private institutions register and store all documents and
other information relating to the identity and background
of all the persons
receiving care, even when their legal status or position changes. In the event
of divorce, the records must be
stored by appropriate methods at the
headquarters of the administrative agency applying the law.
135. The
provincial government is responsible for ensuring the immediate registration of
children immediately after birth.
Article 8. Preservation of identity,
nationality, name and family relations
136. The current national
legislation on adoptions states:
"Article 238. Adopted children have the right to know their
biological origins and to have access to their adoption orders on reaching the
age
of 18 years".
National Commission on the Right to an
Identity
137. This Commission was established by Order No. 1.328/92
in order to lead the search for missing children and establish the whereabouts
of abducted and disappeared children whose identity is known and of children
born to women unlawfully deprived of their liberty.
In this way the State is
trying to fulfil its commitments in respect of the right to an identity assumed
by ratifying the Convention
(arts. 7 and 8). It is also responsible for
tracing children whose disappearance was due to the dictatorship and children
victims
of abduction or trafficking.
138. The Commission was established
as a result of a request by the Plaza de Mayo Grandmothers' Association and at
the behest of the
Office of the President of the Republic; it is composed of
representatives of the Government Procurator's Office, the Grandmothers'
Association, and the Interior Ministry's Under-Secretariat for Human and Social
Rights, where it has its offices. It works with
the National Genetic Data Bank
to gather DNA samples from family members and from children whose identity has
been changed. It is
currently investigating the 284 complaints in its files,
seeking information from Civil Registry offices, the Electoral Chamber,
health
centres, etc.
139. It also runs a permanent advice service for persons
aged over 18 who have doubts about their true identity and assists them with
the
procedures for clarifying their situation. Attention may be drawn here to the
need for an agency to deal with this specific
problem by prompting direct or
indirect action, depending on the case, by the National
Commission.
140. In connection with the new reports of disappeared
pregnant women who had been traced, the National Commission made several trips
to the interior of the country in order to interview family members and advise
them about matters relating to genetics: 11 trips
were made to the provinces of
Santa Fe, Córdoba, Tucumán and Buenos Aires and to the Oriental
Republic of Uruguay;
92 interviews were conducted with 24
families.
141. The National Commission was also requested by the Office
of the Procurator-General for Human Rights of El Salvador to give advice
to the
Association for Tracing Disappeared Children. Advice on investigations and
legal and genetic matters was provided in November
1995. Advice was also
furnished to the Criminal Prosecution Office and to the Children's Ombudsman.
In addition, at the invitation
of the Procurator of the Supreme Court of
Tucumán the National Commission attended the sessions on the right to an
identity
held for members of the Judiciary and the Procurator's Office, Police
Headquarters personnel and University staff. In Mendoza province
the National
Commission held three interviews to verify information connected with a
report.
Number of files by type
|
||
Concerning minors
|
Concerning adults
|
Concerning new reports of disappeared pregnant women
|
229
|
80
|
45
|
Total files 354
|
Persons referred to the National Genetic Data Bank for
filiation studies.
Total: 152 |
|
Minors: 33
|
Possible family members: 119
|
Files by topic
|
||||
Possible disappeared minors
|
Trafficking or abduction of minors
|
Filiations
|
Closed files
|
Referred files
|
100
|
37
|
43
|
16
|
1
|
Documentation requests. Total: 954
|
||||
National Register
|
Provincial Registers
|
Electoral Court
|
General Archive
|
Others
|
144
|
351
|
101
|
211
|
147
|
Approximate number of requests for investigation received from abroad:
5,000
|
142. The Judiciary has undertaken a number of investigations of the
abduction of children born in captivity in the period 1976-1983.
This is
because the so-called "Due Obedience" and "Terminal Point" Acts (Nos. 23.521 and
23.492) - revoked by the National Congress
by Act No. 24.952 of 25 March 1998 -
expressly excluded from their scope the crime of abduction of
minors.
Current prosecutions of the crime of abduction of
minors
143. There are currently nine cases being prosecuted for the
crime of abduction of minors during the de facto Government (1976-1983).
The
purpose of these actions is to identify the politicians responsible for these
crimes, i.e. the persons who gave the orders and
established the structure of
concealment for the theft of babies.
144. These prosecutions are taking
place now because at the time of the 1985 trial of the military juntas only six
cases of abduction
were investigated out of some 200 which had occurred. As for
the military officers who were not tried at that time, the two Acts
referred to
above did not address the abduction of children or the alteration of their
identities.
145. The following persons have been convicted to
date:
Jorge Videla: Prime Minister of the de facto regime. He was arrested on 9
June 1998. He is currently serving a term of house arrest,
as prescribed by
domestic law for persons of his advanced age. He was linked to 10 cases of
abduction of minors.
Emilio Massera: Commander-in-Chief of the Navy under the de facto
Government. Arrested on 24 November 1998. The court hearing the
case convicted
him of complicity in all the thefts of children which occurred in the Navy's
Marine Engineering School (ESMA).
Rubén Franco: last chief of the Navy under the dictatorship.
Arrested on 28 December 1998.
Jorge "Tigre" Acosta: ESMA Chief of Intelligence. He was arrested on 29
December 1998 after being a fugitive from justice for two
weeks.
Antonio Vañek: Chief of Naval Operations and President of the
Legislature Advisory Commission which replaced the National
Congress. He was
arrested on 7 December 1998.
Héctor Febres: a Prefect active in ESMA. Following secret births, he
handed babies over to substitute families. Arrested
in mid-December
1998.
José Suppicich: Rear Admiral, former chief of ESMA. Arrested on 9
December 1998.
Cristino Nicolaides: last Commander-in-Chief of the Army under the
dictatorship. Arrested on 12 January 1999.
Reynaldo B. Bignone: last de facto President. Arrested on 20 January
1999.
146. In connection with these events, on 9 December 1998 the
National Congress adopted an Act awarding a monthly grant of 25,000 pesos
to the
Plaza de Mayo Grandmothers' Association as a contribution to the cost of
tracing, identifying and returning abducted children
and children born in
captivity. This grant was to come into effect in January 1999 for two
consecutive years.
147. The following specific purposes were established
for these funds:
(a) To help to trace disappeared
children;
(b) To supplement the information on all the families held in
the National Genetic Data Bank;
(c) To supplement the information held
in the genetic data bank of the Plaza de Mayo Grandmothers'
Association;
(d) To complete the current investigations, so that the
cases may be brought to court;
(e) To re-establish the true identities
of disappeared children (now young people);
(f) To continue the
psychological support for returned young people and their
families;
(g) To create conditions to prevent any repetition of similar
situations in the future.
148. The national courts have ruled in respect
of the preservation of children's identity:
"If there is a family to be recovered and if there are verified biological
links, it is a child's subjective right that everything
possible should be done
to enable the child to live with his family; such action protects the child's
identity and the family relationship,
for this is a question of the personal
rights of the child and his name is not affected... (CNCiv., Chamber G,
6 February 1992).
Mediation Office for Family
Reunification
149. Following the adoption of the reparations
legislation, a number of problems and needs were identified in dealing with the
public
which went beyond the specific scope of the benefits established in the
legislation. This was the reason for the creation of the
Mediation Office for
Family Reunification. The Interior Ministry's Under-Secretariat for Human and
Social Rights was given the task
of investigating and facilitating the
restoration of links which had been affected or impaired by events during the
period of State
terrorism.
150. Interviews were held for this purpose,
sometimes many in number depending on the complexity of the case; the place of
the interviews
would be determined in consultation with the family: usually in
the Under-Secretariat's offices or, if more convenient, in the family
home.
151. The following kinds of situation have been dealt with:
- Children who were unaware of the existence of siblings, for in many cases
their parents tried for security reasons to avoid contact
with other members of
their families;
- Children who had lost contact in childhood with siblings whose given names
they did not know, being very small at the time of the
separation;
- Children of the same father who did not know each other, and wives who
were unaware that the father had those children;
- Grandparents who had lost contact with grandchildren or sons- or
daughters-in-law;
- Friends of disappeared persons who wanted to make contact with such
persons' children.
152. The Office also helps families by means of
mediation as such to resolve conflicts that arise in connection with access to
the
benefits accorded under the reparations legislation and their distribution
among the victim's heirs.
153. In another area, connected with the travel
documents of children, the Argentine Federal Police, the agency responsible for
issuing
passports, decided, pending the adoption of a new documentation system,
to avoid the option offered by article 7 of Decree No. 2015/66
to include
children aged under five in their parents' passports. This decision was based
on the position advocated by the International
Civil Aviation Organization that
all travellers, including children in that age group, should have their own
passports. This arrangement
makes it impossible to include children
fraudulently in the travel documents of adults and obstructs trafficking in
children and
crimes which impair the free exercise of parental
authority.
Article 9. Guarantee of relations with
parents
154. Act No. 24.270 of 3 November 1993 incorporated in the
Criminal Code the crime of "obstruction of contacts between minor children
and
their parents with whom they do not live". The Act addresses the various forms
of this offence, including:
(i) Preventing or obstructing contact (art.
1);
(ii) Changing place of residence without judicial authorization in order to
obstruct contact (art. 2);
(iii) Moving to an overseas place of residence in order to obstruct contact
(art. 2).
155. If one of the cases addressed by the Act arises, the court
must decide within a time limit of 10 days on the measures necessary
for
re-establishing contact between the child and his parents (art. 3.1) and
fix a provisional schedule of visits (art. 3.2).
156. The full text of the Act is annexed to this report.
157. Article
307 of the Civil Code sets out the grounds on which parents may be deprived of
parental authority:
(i) If they are convicted as principals, co-principals, instigators or
accomplices in a culpable offence against the person or property
of any of their
children, or as co-principals, instigators or accomplices in an offence
committed by any of their children;
(ii) If they desert any of their children, in respect of the child so
deserted, even if the child remains in the custody of, or is
recognized by, the
other parent or a third party;
(iii) If they endanger their child's safety or mental or physical health by
ill-treatment, bad example, flagrant misconduct or delinquency.
158. The
Code provides for suspension of parental authority for as long as a parent whose
absence has been legally declared remains
missing, and for prohibition or
disqualification in certain cases. It also provides for suspension when
parents hand their children
over to establishments for the protection of
minors.
159. While parental authority is suspended for one parent, the
other continues to exercise it; in the absence of the other parent,
when the
child cannot be placed in the care of a suitable blood relation (the closest
relatives being considered first) he becomes
a ward of the national or
provincial State.
160. Provided that parents exercise their powers in the
normal manner, the State cannot and should not interfere in the relations
between parents and children. But society must intervene to protect children
who are deserted by their parents or placed in material
or moral danger by their
conduct. In these cases wardship is exercised by the court with the assistance
of the Government Procurator's
Office. The court is the supreme authority, and
the law accords it broad powers; it is ultimately the magistrate who determines
a solution in the child's best interests.
161. Custody of children aged
under five whose parents are separated or divorced is usually awarded to the
mother in the absence of
serious considerations affecting the child's interests.
In reaching its decision the court must take into account the best interests
of
the child in accordance with the national legislation in force, including the
Convention, which has constitutional rank.
162. Article 376 bis
establishes the obligation of guardians to allow parents direct contact with
their children:
"The parents, guardians or tutors of minors of persons lacking legal
capacity or persons of the age of majority who are sick or
disabled must permit
them to be visited by relatives who are responsible for maintenance pursuant to
the provisions of the present
chapter. If such visits are opposed on the ground
of possible harm to the moral or physical health of the persons to be visited,
the court shall make the necessary ruling by summary procedure, establishing
where necessary the most suitable schedule of visits
in the light of the
circumstances of the case".
163. Articles 377 to 467 of the Code set out
the rules on tutorship:
"377. Tutorship is a right conferred by law to administer the person
and property of minors who are not subject to parental authority
and to
represent them in all civil acts.
378. The relatives of a minor orphan have a duty to inform the
courts of the child's orphan status and absence of tutorship; if they
do not do
so, they may be denied the right of tutorship accorded to them by law.
379. Tutorship is a personal duty which does not pass to heirs and
which no one may refuse to perform without due cause.
380. A child's tutor is his legitimate representative in all civil
transactions.
381. Tutorship is exercised under the supervision and control of the
Procurator for Minors.
382. Tutorship is granted by the parents, the law or the
courts.
399. No one may exercise the functions of tutor, accorded either by
the parents or the courts, unless that status is granted by the competent
court,
which appoints or confirms the appointment of the tutor to exercise the
functions in question.
457. The courts may revoke a tutorship if the tutor becomes
incapable of exercising it, if he fails to make an inventory of the minor's
property within the time limit and in the form prescribed by law, or if he fails
to pay due attention to the minor's health, safety
and morals, or to his
vocational training or property".
164. With regard to the procedural
rules for the appointment of tutors, article 776 of the Code of Civil and
Commercial Procedure states:
"The appointment of a tutor or curator and the confirmation of such an
appointment made by the parents shall be effected at the
request of the person
concerned or the Government Procurator without formal proceedings, unless some
person claims the right to be
so appointed. In this event, the question shall
be resolved by summary procedure".
Article 777
continues:
"When an appointment has been made or confirmed, the court shall make the
award in a document recording the oath or promise faithfully
and lawfully to
exercise the tutorship and the judicial authorization of such
exercise".
Province of Santa Fe
165. Every child has the
right to comprehensive development in his family. If his natural family does
not offer a suitable context
for his biological, psychological and physical
development, for whatever reasons affecting the family's stability or
solidarity,
and the child is in a situation of moral or material risk, the
provincial State must take action with respect to the child's guardianship
by
means of "institutional and non-institutional" arrangements.
166. The
traditional arrangements for placement in an institution result in the housing
of an increasing number of children who cannot
be provided with the individual
attention available only in a family context; accordingly, placement must be
used only when there
is no other alternative.
167. The interdisciplinary
approach to the situation of children with socio-economic problems gives rise,
in the light of the need
to avoid having large numbers of children housed in
institutions, to the consequent need for and usefulness of recourse to
non-institutional
methods by implementing programmes involving family or
family-style arrangements and foster parents who are able to preserve the
child's individuality as a human being and prepare him to take his place in the
community.
168. The aim of such programmes is to keep legal procedures
and recourse to placement to a minimum and to provide practical and economic
support in the form of grants to the natural family. It was for these reasons
that the former Office for Children and the Family
introduced the following
programmes:
Foster families
169. This arrangement offers
a very favourable solution for vulnerable or abandoned children who lack any
other means of protection.
170. The aim is to provide children whose
health or moral safety is at risk, either because of their home environment or
activities
or because their education is being compromised by the behaviour of
the persons having care of them, with a family home which attends
with affection
and comprehensive care to their development as "human beings and useful members
of society".
171. This approach is intended to avoid the
institutionalization of children who do not have serious behavioural problems by
placing
them with supportive families which offer them an appropriate context
for normal biological, psychological, physical and spiritual
growth and
encourage their activities outside the family and normal relations within
it.
172. The families are selected in accordance with the requirements
governing their composition and in the order of their application
for selection
and their registration; it is a particular condition that they should have
sufficient vocation to make this commitment,
for otherwise they would merely be
entering into a labour contract.
173. There are no minimum or maximum age
limits for placement in a foster family. The child's age is taken into account
only for
the purposes of selecting a family which in the view of the
professional staff will be able to establish a harmonious relationship
with him;
however, the regulations apply in general terms to the 0-21 age
range.
174. The foster allowance is 76.50 pesos a month per child; the
payments are made every two months in arrears.
Paid court-appointed
guardians
175. This programme offers valuable help to families which
wish to take responsibility for children (under a juvenile court order)
by
becoming their legal guardians and which, following checks or evaluations by the
court, are deemed to warrant financial support
to enable them to discharge their
guardianship duties.
176. With a view to facilitating the appointment of
paid guardians for children at risk or lacking protection and as an alternative
to placement in an institution, at the request of the competent judicial
authority the province's Office for Children, Women and
the Family may make
regular monthly payments and special payments.
177. The families are
selected in the light of case studies following an initial move by the juvenile
court; the Office submits its
documents to the court and proceeds in accordance
with the legal requirements.
178. The programme covers minors up to the age of 21.
"Little
family" programme
179. This programme offers a means of family
placement, preferably with a married couple, who must provide temporary
protection,
assistance and care for a group of children lacking a normal family
context in order to enable them to enjoy family life until they
return to their
natural families or the court makes provision for their legal guardianship or
adoption.
180. The programme regards the family as the basic unit of
society, and the "little family" headed by a suitable couple who have been
duly
selected and counselled offers a new option for placement.
181. The aim
is to avoid the placement of children in institutions sheltering large numbers
of inmates and a succession of moves to
different institutions with the adverse
consequences of having constantly to re-adapt to different
persons.
182. The programme also seeks to develop a child's personality
in all its aspects by providing adequate leisure activities and by
satisfying
all his essential needs: food, shelter, clothing, medical care, and primary or
secondary education as appropriate.
183. It also offers children an
opportunity to live in a family which fosters their harmonious physical, mental,
moral and emotional
development and it ensures that they take their places, for
a time at least, in the community in which they live and conduct their
relations
and activities.
184. In the selection of families the
technical/administrative unit must assess - in the preferred situation of a
married couple -
whether the couple has the capacity to take on the role of
parents and are emotionally mature, and whether they suffer from any
psychopathological
condition or other problem which may disturb the family
relationship.
185. The programme covers the 2-10 age range, and the
children involved should preferably be siblings.
186. The couple receives
monthly remuneration of 96 pesos for each child, plus an allowance of
87 pesos a month for the children's
maintenance.
187. If the little
family lives in the home of the "parents", they receive an additional 37 pesos a
month.
Substitute mothers
188. This system provides
comprehensive care for short periods with a woman who takes children aged up to
five years into her home
until a final decision is taken on their
future.
189. The stays are intended to be as short as possible, but the
children are given affection and dedicated and comprehensive
care.
190. The programme provides a temporary substitute for the mother
figure at a vital stage of a child's life, at which a mother plays
an essential
role in his emotional and affective development.
191. The relationship
between the Office and the substitute mother is governed by an agreement setting
out rights and duties of the
parties.
192. Applications to become
substitute mothers are invited by means of advertisements or ad hoc
competitions. The women must supply
details of their identity and background
and other documents, and members of the interdisciplinary teams visit their
homes for the
purposes of a case study.
193. The selection of substitute
mothers depends on the degree to which they satisfy the conditions for
fulfilling this role, as established
in the case study. They receive a daily
allowance of 4.80 pesos for each child.
Grandmothers and
children
Pre-admission grants
Training
grants
Article 10. Family reunification
194. See the
information given in relation to articles 8 and 9 of the
Convention.
195. Argentina has dealt with concrete cases in which, at the
request of one parent living in Argentina as a refugee, refugee status
has been
granted to his or her minor children and spouse, with the principal and sole
objective of family reunification.
196. Children who for various reasons
are living in a country which is not the country of residence of either of their
parents enjoy
the same rights as children living with their parents. For
further information on such cases, see the section of the report dealing
with
article 18 of the Convention, in respect of joint parental
authority.
Article 11. Illicit transfer and non-return of children
abroad
197. As the starting point, a distinction must be made between
"abduction" of children, usually by one of their parents, and "trafficking"
in
children.
198. The first case may be divided into local and international
abduction:
(a) Local abduction usually occurs when one of the parents
moves to another town without the prior consent of the other parent, who
also
has parental authority, or without due judicial authorization. Allegations of
this type of abduction may be submitted to the
competent local judicial
authorities;
(b) The international abduction of children usually occurs
when one of the parents illicitly transfers or keeps a child abroad in
violation
of the other parent's custody rights or of a court order prohibiting such
transfer. This type of abduction is dealt with
by application to the judicial
authorities having jurisdiction at the child's usual place of residence, which
petition the courts
of the place to which the child has been transferred or at
which he is being kept, seeking their collaboration to secure the child's
return. There are also three international instruments on this problem:
(i) The Hague Convention on the Civil Aspects of International Child
Abduction of 1980, ratified by Act No. 23.857 and in force
in Argentina since 1
June 1991. The General Directorate performs the functions of central authority
for the application of this
Convention;
(ii) The Agreement on the International Protection of Minors concluded with
the Oriental Republic of Uruguay on 31 July 1981 and
ratified by Act No.
22.546;
(iii) The Inter-American Convention on the International Return of Children
of 15 July 1989. Argentina has not yet ratified this
instrument, but it is
being studied with a view to ratification.
199. In accordance with the
reservation made at the time of depositing the instrument of ratification of the
Convention on the Rights
of the Child, paragraphs (b), (c), (d) and (e) of
article 21 do not apply within the jurisdiction of the Republic of Argentina
because,
in its view, before they can be applied a strict mechanism must exist
for the legal protection of children in matters of intercountry
adoption, in
order to prevent trafficking in and sale of children.
200. Subsequent to
the entry of this reservation Argentina adopted Act No. 24.779 of 28 February
1997, which amends the adoption provisions
of the Civil Code. This Act is based
on full respect for the best interests of the child and addresses the effects in
Argentina
of adoptions granted abroad (ch. V, arts. 339-340), but it
is silent on the points which are the subject of the reservation, especially
with regard to situations in which children of Argentine origin are given in
adoption to foreigners.
201. One of the activities organized by the
MERCOSUR working group on social integration was the convening in Rio de Janeiro
in May
1998 of a first workshop on "Childhood and adolescence", which was
attended by specialists in public policy for children and adolescents
from
governmental and non-governmental organizations from Argentina, Bolivia, Brazil,
Chile, Paraguay and Uruguay. The workshop
discussed the usefulness of the
regional integration of the countries members of MERCOSUR and the need to
provide for the most vulnerable
population groups with a view to securing
universal access to social benefits and services.
202. The meeting also
stressed the importance of compliance with the principles of the Convention on
the Rights of the Child.
203. As the output of this workshop the working
group formulated a series of recommendations based on international cooperation.
These
recommendations relate to:
- Tackling poverty and
inequality;
- Policies for guarantee of the rights of the
child
- Management of policies for guarantee of the rights of the
child.
204. Argentina's Legislature is in the process of approving the
Inter-American Convention on International Traffic in Minors adopted
by the
fifth Inter-American Specialized Conference on International Private Law;
article one of this Convention states:
"With a view to the protection of the fundamental rights and the best
interests of minors, the purpose of this Convention is to
prevent and punish the
international traffic in minors and to regulate the civil and criminal aspects
thereof".
Article 12. Right to be heard
205. Argentina's
civil legislation establishes a schedule of legal disabilities for the sole
purpose of providing greater protection
for children. As may be seen from the
provisions cited below, the Civil Code establishes a tiered system of legal
disabilities tailored
to children's gradual development as they grow older and
maturer:
"Article 54. The following persons are legally incompetent in all
respects: ... (2) Children below the age of puberty".
"Article 55. Adult minors have legal capacity only in respect of the
acts which the law authorizes them to perform".
"Article 56. However, legally disabled persons may acquire rights
and contract obligations through the legal representatives stipulated by
law".
"Article 57. The following persons may act as representatives of the
legally incompetent: ... (2) The parents or guardians of unemancipated
minors".
"Article 58. This Code protects the legally incompetent, but only
for the purpose of removing the impediments of their incapacity by furnishing
them with the representation stipulated in the Code and without according them
the benefit of restitution or any other benefit or
privilege".
"Article 59. In addition to any other necessary representatives, it
is mandatory for the legally incompetent to be represented by the Office
of the
Procurator for Minors, which shall play a legitimate and essential part in any
judicial or extra-judicial proceedings in any
contentious or non-contentious
jurisdiction in which a legally incompetent person is the plaintiff or
respondent or which relates
to the person or property of a legally incompetent
person, subject to the nullification of any act or any judgement effected
without
the Office's participation".
"Article 128. A minor's legal incapacity ceases when he achieves his
majority at the age of 21 or if he becomes emancipated before that age.
From the age of 18 a minor may conclude labour contracts in respect of
honest work without the consent or authorization of his representative,
subject
to compliance with the labour laws. A minor who has obtained a qualification to
exercise a profession or occupation may
exercise it on his own account without
the need for prior authorization.
In the two cases referred to above a minor may freely administer and
dispose of the property acquired with the proceeds of his labour
and may
initiate civil or criminal proceedings in connection with such
property".
"Article 131. A minor obtains emancipation on marriage and acquires
civil capacity subject to the restrictions mentioned in article 134.
A minor who marries without permission is subject until age 21 to his
parents' administration and disposition of any property which
he has obtained or
may obtain free of charge, and the legal regime applicable to minors continues
in respect of such property, subject
to any subsequent empowerment.
On reaching the age of 18 a minor may be declared emancipated by age with his consent and by the decision of the persons having parental authority over him. If such minor is subject to tutorship or guardianship he may be declared emancipated at his own request or at the request of his tutor or guardian, subject to a prior report on his aptitude for emancipation. Emancipation by
the parents is granted in the form of a public instrument which must be
entered in the Register of Civil Status and Capacity.
In the case of emancipation by a court it is sufficient for the decision to
be entered in the Register.
Emancipation may be revoked by a court at the request of the parents, of
the persons exercising tutorship or guardianship at the
time of the
emancipation, or of the Guardianship Office if the minor's conduct demonstrates
his inaptitude.
The Government Procurator for Minors
"Article 493. The Government Procurator for Minors must be involved
in any proceedings or litigation concerning tutorship or curatorship or the
performance of the duties of tutors or curators. He must also be involved in
the establishment of the inventories of the property
of minors or legally
incompetent persons, as well as in any sales or contracts which have to be made.
He may take over the functions
of tutors or curators who are not performing
them. He may request the dismissal of tutors or curators for poor
administration and
execute any acts of guardianship entrusted to tutors and
curators by law, and he may supervise the administration by tutors and curators
of the persons and property of minors and legally incompetent persons".
"Article 494. All legal documents or contracts concerning the
persons or property of minors or legally incompetent persons shall be void
unless
the Government Procurator for Minors was involved in their
conclusion".
206. In this connection the National Civil Court, Chamber F,
declared in a decision dated 20 June 1997:
"The representation of minors before the courts is complicated, consisting
as it does both of his necessary representative and of
the governmental official
providing him with mandatory assistance. These two representatives provide an
adequate defence of the
minor's interests under a system of representation which
addresses the particular circumstances of minors who may not bring applications
on their own behalf".
207. For details of the legal regime of tutorship,
see the discussion in relation to article 9 of the
Convention.
Province of Chaco
208. The process of
transforming the children's centres (nurseries) into "Casas de Sol" (child
development centres) involved a review
of the mechanisms of communication among
adults, among children, and between children and adults.
209. The process
of change included experiments, such as how to promote a dialogue between adults
and children and create spaces for
listening, and suggestions boxes were
introduced to enable children to express their opinions about the institution
and its operation
and about what they liked and disliked. One of the casas (No.
1 - "Resistencia") carried out a project called "Child advocates",
under which
the teaching staff worked with the children to inform them about two rights and
how to exercise them: the right to a
name and the right to express one's
opinions.
210. In the "Candelaria" programme the children and their families practised
the right to be heard at workshops for discussion and
analysis of every one of
the rights. Children also play an active part in the campaigns to publicize the
rights of the child which
involve advocacy by children. In addition, they are
consulted formally and informally about the tasks to be carried
out.
211. Children affected by situations of ill-treatment or behavioural
problems are given an opportunity to say what they think and
explain their
situation in individual interviews designed to ensure that their needs are
attended to. In this connection the "Volver
a Casa" subprogramme encourages
children to become actively involved in dealing with matters affecting
them:
(i) In administrative proceedings concerning children, if the children are
old enough and sufficiently mature they are guaranteed
the right to state their
views, and their participation and views are recorded (two cases of complaints
by children which gave rise
to summary hearings);
(ii) Where the police are concerned, children have come forward of their own
accord to report irregular situations affecting their
living conditions in
institutions; this testifies to the level of awareness which children are
acquiring with respect to their rights
(two cases);
(iii) Effective participation by children suffering abuse, both in matters
handled by the police and in the courts. In these cases,
what the children had
to say was taken as evidence and formed the basis for prosecutions resulting in
the detention of the accused;
(iv) The subprogrammes "Porvenir" and "Casas de Estudio y Trabajo" (Study
and Work Homes) encouraged the creation of spaces for discussions
with teenagers
(workshops, talks and debates): rules were agreed with the teenagers
(participation, drafting, implementation, organization
of the internal
inter-relationships, and evaluation), and a participatory organizational council
was formed, in which the young people
have an opportunity freely to express
their ideas, suggestions, opinions, etc. at meetings and
assemblies.
Province of Chubut
212. The legislation on the
comprehensive protection of children and the family stipulates that it is the
duty of the State to safeguard
children's right to be heard in any judicial or
administrative proceedings affecting them.
Article 13. Freedom of
expression
213. Without prejudice to what was stated in the preceding
report to the Committee, it is appropriate to add the
following:
214. Article 14 of the Constitution reads:
"All inhabitants of the Nation enjoy the following rights in accordance
with the laws that regulate their exercise, namely: the
right ... to publish
their ideas in the press without prior censorship".
215. Furthermore, article 15 states:
"The Federal Congress shall not enact laws restricting freedom of the press
or establishing federal jurisdiction over it".
216. Article 1071
bis of the Civil Code stipulates as a general rule:
"The regular exercise of an individual right or the fulfilment of a legal
obligation cannot constitute an unlawful act. The law
does not protect the
abusive exercise of rights. Any act that runs counter to the purposes which the
law envisaged when recognizing
the said rights or exceeds the limits imposed by
good faith, morality and decency shall be deemed abusive".
In view of
this rule of civil law, the issue which has to be decided is whether the right
in question has been exercised within the
established limitations, i.e. in a
manner that is not abusive.
Article 14. Freedom of thought, conscience
and religion
217. In accordance with the information contained in the
core document submitted by the Republic of Argentina on 1 July 1996
(HRI/CORE/1/Add.74),
such documents forming an integral part of the reports of
States parties, and without prejudice to the recognition of the freedom
of
worship in the first Argentine Constitution, that of 1853, it can be said that
Argentina is basically a Catholic country owing to its historical and cultural
traditions. Article
2 of the current Constitution accordingly states that "the
National Government supports the Apostolic Roman Catholic faith", referring to
the financial support
given to the institutions of the Apostolic Roman Catholic
Church.
218. Following the 1994 reform, adherence to the Apostolic Roman
Catholic faith is not a requirement for holding the presidency of
the country,
as it was under the 1853/1860 Constitution. It is also the case that members of
some of Argentina's religious communities are given the day off with pay on
religious holidays;
one example is the members of the Jewish community, who
pursuant to Act No. 24.571 (see annex) enjoy paid time off on the principal
Jewish holy days: New Year (Rosh Hashana), Day of Atonement (Yom Kippur) and
Passover (Pesach); this is also the case for the Islamic
community pursuant to
Act No. 24.757 (see annex), which declares non-working days for all the
country's inhabitants who profess the
Islamic faith: New Year (Hegira); the day
following the end of Ramadan (Id Al-Fitr) and the Feast of the Sacrifice (Id
Al-Adha).
219. As stated in the information given in connection with
article 18 of the Convention, in Argentina parental authority is shared
by the
two parents, and the exercise of this authority involves a series of rights and
duties for the guidance and comprehensive
development of their children which
parents must fulfil.
Article 15. Freedom of association and peaceful
assembly
220. With regard to the freedom of association and peaceful
assembly in labour matters, article 14 bis of the Constitution states:
"Labour in its various forms shall enjoy the protection of the law, which
shall guarantee workers ... free and democratic trade
union organization subject
to no other formality than registration in a special register".
Argentina's legislation reaffirms this constitutional principle and the
relevant international provisions and regulates the establishment,
operation and
activities of workers' trade unions: Act No. 23.551, promulgated by the
Executive on 14 April 1988 and published in
the Boletín Oficial on
22 April 1988, and its enabling Decree No. 467/88 of 14 April
1988.
221. It is important to stress here that this Act requires members
to be aged at least 14, in accordance with the regulations on the
prohibition of
work by minors discussed under article 32 of the Convention (see
below).
Article 16. Right to privacy
222. Article 18 of the
Constitution states:
"A person's home, correspondence and private papers are inviolable, and the
law shall determine in which cases and on which grounds
the search or seizure
thereof may be effected".
Article 19 continues:
"The private actions of human beings which in no way offend public order or
morality or injure a third party are a matter for God
alone and lie outside the
competence of the Judiciary".
223. As regards the jurisprudence on this
subject, it is important to note the views expressed by the Supreme Court in
what constituted
a "leading case" relating to respect for honour and
privacy:
Indalía Balbín v. Editorial Atlántida
S.A. (damages)
"... article 19 affords legal protection of an area
of individual autonomy that comprises feelings, habits and customs, family
relations,
economic status, religious beliefs, mental and physical health and,
more generally, the activities, acts or information which, having
regard for the
way of life accepted by the community, are confined to the individual, so that
knowledge or disclosure of them by
other persons would represent a real or
potential danger to privacy. Indeed, the right to privacy covers not only the
domestic sphere,
the family circle and friendship, but also other aspects of the
physical and spiritual identity of the individual, including the
inviolability
of his body and image; hence no one may interfere in a person's private life or
violate aspects of his activity not
intended to be made public without the
consent of that individual or of relatives empowered to give such consent, and
intervention
may be justified only by law where there exists a higher interest
to safeguard the freedom of others, to protect society and decency,
or to
prosecute crime ...".
224. Following this reasoning, in the judgement of
6 April 1983 in the Marcelo Bahamondez (precautionary measure)
case, two members of the Supreme Court stated:
"With regard to the constitutional framework of the rights of the
individual, it may be said that the jurisprudence and doctrine
see this as
including privacy, conscience, the right to one's own separate existence and the
right to make fitting use of one's own
body. In point of fact, when article 19
of the Constitution says that "[t]he private actions of human beings which in no
way offend public order or morality or injure a third party are a matter
for God
alone and lie outside the competence of the Judiciary", it grants all persons a
prerogative to take decisions on their activities,
their work, their own bodies,
their own lives, on whatever is theirs. It has ordered human life in society on
the basis of attributing
to the individual a domain subject to his own will, and
this capacity to work free from impediment entails the capacity to react
to or
oppose any proposal, opportunity or attempt to narrow the limits of that
prerogative. The present case is concerned with dominion
over one's own body
and hence with a good recognized as belonging to each individual and guaranteed
by article 19 of the Constitution. That constitutional provision is given
substance by man, who leads his life by means of actions which are the
expression of his
work at liberty. Thus, life and liberty form the
infrastructure upon which the constitutional prerogative enshrined in article 19
of the Constitution is based".
225. The national courts have applied the
regulations on children's right to privacy as follows:
"The question of the precedence of the right to privacy over freedom of the
press should not be decided as a question of prior censorship,
for there are
rules of equal constitutional rank which prevent the dissemination of
information concerning children. The freedom
to seek, receive and disseminate
ideas of all kinds (American Convention on Human Rights, art. 13) cannot be
extrapolated in such
a way as to damage, under the protection of an apparent
violation of one constitutional guarantee, real guarantees of the same kind,
such as those deriving from articles 3 and 16 of the Convention on the Rights of
the Child and from the right to privacy protected
by article 1071 of the Civil
Code". (Civil Court, Chamber C, 3 October 1996.)
"The right of all children to be protected by their family against unlawful
or arbitrary interference renders unlawful the conduct
of any person who
publishes photographs of a naked child taken by his or her mother who is alive
and has tried to modify certain
behaviour by another person in order to secure
proper respect for her family". (CNCiv, Chamber C, July 1996, A.C. v. Editorial
Perfil.)
226. Furthermore, with regard to action concerning personal data
kept in public or private records, the Constitution states in article 43,
paragraph 3:
"These proceedings may be initiated by any person in order to obtain
information about the content and purpose of data relating
to himself contained
in public or private records or data banks intended for use in reports and, if
the information is false or discriminatory,
to demand that it be destroyed,
corrected, made confidential or updated. The confidentiality of journalists'
sources of information
shall not be affected".
227. See the additional
comments on the right to information under article 17.
Province of
Chubut
228. The Act on the comprehensive protection of children and
the family states that no public or private mass communication medium
may
publish or disseminate information which identifies or may lead to the
identification of child victims or child violators of
the criminal law or the
law of misdemeanours. The Act also specifies fines for failure to comply with
its provisions. The proceeds
of these fines are paid into a special fund for
the comprehensive protection of children and the family.
Article 17.
Access to information
229. The 1994 reform of the Constitution
included among the new rights and guarantees the possibility of initiating
amparo proceedings in respect of personal information contained in public
or private records. Accordingly, by invoking the right to freedom
of
information any person may argue before the courts that he should have access to
data on himself held in such records and demand
that such information should be
destroyed, corrected, made confidential or updated (art. 43, para.
3).
230. Although this right is enshrined in the Constitution, it has not
been the subject of enabling legislation in the National Congress. But this
consideration has not prevented the Supreme
Court from addressing the issue.
For there are many legal precedents to the effect that "the absence of legal
regulations does not
impair the validity of certain rights which, by their
nature, may be invoked, exercised and protected without the backing of any
legislative provision". (Proceedings: 315:1492.)
231. Again in
connection with this right, the Supreme Court stated:
"When hearing a case concerning a guarantee not the subject of regulation
the Court is considering not a law but a Constitution, which is intended by its
nature to fix the Legislature's framework of action, laying the general legal
foundations that will govern
the lives of future generations. Accordingly, a
judge's approach in this matter cannot follow the strict line of the
hermeneutical
rules of someone who is examining a code, who is seeking to
provide for all possible contingencies - within human limits; instead
he must be
concerned only with those rules which are compatible with the text and allow
respect for its spirit and purposes". (Urteaga,
Facundo Raúl v. National
State/Joint Chiefs of Staff/Amparo Act No. 16.986. Judgement of
15 October 1998.)
232. The National Congress is currently
considering draft enabling legislation on this right. This regulatory framework
is planned
to include inter alia the obligation of bodies keeping
databases to give prior written notice, without cost to the persons to whom the
data refer, of the
entry in a database of information or reports on the
financial or commercial background of physical or juridical persons; it will
create a criminal offence which will enable persons on whom data is kept to
bring criminal actions when necessary.
233. Similarly, article 16 of the
Constitution of Buenos Aires City states:
"Every person shall have, by means of an amparo action, free access
to information kept in any register, record or data bank by a public or private
body which is intended for use
in reports, in order that he may learn about any
entry concerning his person or origins and about the use or purpose of such
entries.
He may also require the information in question to be updated,
corrected, made confidential or destroyed when it may impair or restrict
some
right".
Article 18. Parental authority. Guardianship. Representation
of children
234. With regard to the special rules on the exercise of
parental authority, Act No. 23.264 of 1985 amended the parental authority
and
filiation regime contained in the Civil Code. As a result of this amendment the
exercise of parental authority is now shared
by the two parents, even though
they may not have the same legal status; the new Act replaces all the provisions
of the previous
legislation, which maintained privileges based on the husband's
status as head of the family.
Joint parental
authority
235. Parental authority comprises the various duties and
rights that parents have in respect of their children and their property
with a
view to their protection and comprehensive upbringing from conception onwards
and for as long as they remain minors, unless
they become
emancipated.
236. It is exercised:
(1) In the case of children of the marriage, by the father and mother
jointly provided that they are not separated or divorced and
their marriage has
not been annulled. Action taken by either is presumed to have been taken with
the consent of the other, except
in the cases referred to in article 264
quater or when the other objects at the time;
(2) By the parent awarded legal custody in the event of de facto separation,
legal separation, divorce or annulment of the marriage,
without prejudice to the
other's right to have adequate contact with the child and to supervise its
upbringing;
(3) By the other parent in the event of the death, disappearance presumed
dead, or withdrawal or suspension of the parental authority
of either
parent;
(4) In the case of a child not of the marriage who is recognized by just one
parent, by the parent recognizing the child;
(5) In the case of a child not of the marriage who is recognized by both
parents, by both parents if they are living together; otherwise
by the parent to
whom custody has been awarded by agreement or judicial decision or whose custody
has been recognized in summary
proceedings;
(6) By the person legally adjudged the father or mother of the child, if the
child has not been voluntarily recognized.
237. Parents exercising
parental authority have the right to raise, support and educate their children
in keeping with their status
and means, using not only the children's assets but
also their own.
238. The obligation of support means meeting the child's
needs in respect of upkeep, education and recreation, clothing, housing,
assistance and illness-related costs. The obligation does not lapse even when
the child's needs arise out of his/her own misconduct.
239. If the father
or mother fails to fulfil the obligation of support, he or she may be sued for
support by the child, assisted,
if an adult minor, by a special tutor, by any
member of the family, or by the Government Procurator for Minors.
240. In
accordance with article 306 of the Civil Code, parental authority lapses on the
death of the parents or children, if the parents
(or the children with the
parents' permission) enter a monastic institution, when the children reach the
age of majority, if the
children become legally emancipated (without prejudice
to the continuation of the right to administer property acquired free of
charge),
if the marriage took place without authorization, or if the children
are adopted, without prejudice to the possibility of reinstatement
of parental
authority if the adoption is set aside or annulled.
241. In addition to
the grounds mentioned in the preceding paragraph, attention is drawn to what was
stated above under article 9
in relation to the legal grounds for depriving
parents of parental authority (if they are convicted as principals,
co-principals,
instigators or accomplices in a culpable offence against the
person or property of any of their children, or as co-principals, instigators
or
accomplices in an offence committed by the child; if they desert any of their
children, in respect of the child so deserted, even
if he or she remains in the
custody of, or is recognized by, the other parent or a third party; or if they
endanger the child's safety
or mental or physical health by ill-treatment, bad
example, flagrant misconduct or delinquency), and in relation to the
implications
of judicial suspension of parental authority,
etc.
242. Following the reform of the Civil Code by Act No. 23.515 no
distinction is made in the treatment of children born within and
out of
wedlock.
243. It is important to remember that the National Council for
Children and the Family, which operates under the Ministry of Health
and Social
Welfare, is still working on the tasks which led to its establishment by Decree
No. 1606/90, as described in Argentina's
second periodic report under the
Covenant on Civil and Political Rights (CCPR/C/75/Add.1, para.
73).
244. Pursuant to the new provisions contained in article 75,
paragraph 23, of the Constitution, the National Congress will have to enact a
special integrated social system for the protection of children in a situation
of desamparo from conception to the end of their elementary education,
and for the protection of mothers during pregnancy and breastfeeding.
Article 19. Measures to combat physical and mental abuse, neglect, negligent treatment, exploitation
and sexual abuse
245. The
National Council for Children and the Family is a decentralized body having
responsibility for the functions of the State
with regard to the comprehensive
protection and promotion of children and the family. One of its main functions
is to prevent and
deal with the consequences of the abandonment of children,
paying special attention to the coordination of the machinery for addressing
the
problems of children at risk, street children, children whose labour is
exploited, and children suffering any other impairment
of their
dignity.
246. When it comes to the protection of children who have been
abandoned or are in moral or material danger, the problem of competing
national
and provincial jurisdictions over cases involving children at risk points to the
need to agree on common and coordinated
care measures.
247. In the
context of the Federal Agreement on the Protection of Children and the Family,
and through the Federal Council for Children
and the Family or through bilateral
agreements, the National Council provides technical support to ensure that the
commitments undertaken
by Argentina are fulfilled throughout the country, thus
investing the real rights of all children living in Argentina with the
advantages
of homogeneity and coherence.
248. The Street Children
Programme operates under the auspices of the National Council (it was in fact in
operation even before the
National Council's creation); its aim is to provide
individual care for children living in the streets.
249. A network of
programmes and services designed to tackle this problem was established by Order
No. 270/90; this network is gradually
being improved and is drawn upon as
needed by the programmes to combat the exploitation of children.
250. In
November 1993 a plenary meeting of the National Council decided to devote a
specific programme to the care of children exploited
by adults as beggars,
workers or prostitutes or in criminal activities, in the face of evidence that
the great majority of the children
roaming the city streets were being managed
or supervised or had been forced into this life by adults living off the
earnings of
the children's marginal activities.
251. The programme's
objectives:
(i) To identify cases of child exploitation, distinguishing them from
survival strategies or other risk situations requiring specific
attention (work,
mental health, cultural factors, urban development, etc.);
(ii) To restrict and prevent, by all legal means, the exploitation of
children by adults;
(iii) To provide exploited children and their families with the greatest
possible support through specific and general social measures
and programmes at
the national, provincial and municipal levels;
(iv) To guarantee, in particular, access to education, physical and mental
health services, vocational training, leisure and cultural
activities for all
children victims of exploitation;
(v) To create grass-roots awareness of the problem.
252. Without
prejudice to the ad hoc measures required for the purposes of a flexible
strategic response to this kind of exploitation,
the programme's measures will
fall within the following general categories:
(i) Interinstitutional coordination (public and non-governmental
organizations with expertise in this field);
(ii) Inventory of cases: field study of the prevailing types of child
exploitation, the adults involved and the child victims. The
costs will be
borne by the programme;
(iii) Grass-roots awareness campaigns using mass publicity, seminars,
courses, etc.;
(iv) Social intervention (technical and professional diagnosis and
treatment, both for the children and for the families which enrol
voluntarily in
the programme;
(v) Involvement of the Government Procurator's Office and the competent
courts. When legal action is required for dealing with cases
of exploitation,
for the arrest and prosecution the exploiters or for the removal of children
from their families, such action will
be taken by duly authorized
officials;
(vi) Safeguarding of exploited children. In cases where children's work
continues to be exploited despite the social action taken,
the National Council
will take the necessary measures of protection to prevent the situation from
continuing further, either by court
order or by exercising its own powers to
protect children at risk.
253. The programme's resources:
(i) Community resources: permanent staff and volunteers under community
supervision. Donations in kind will be accepted for direct
transfer to children
and their families. If such donations cannot be distributed to the programme's
beneficiaries, the procedure
outlined in the current legislation on donations to
the State will be followed;
(ii) Interinstitutional resources: a list of the existing human resources in
other national, provincial and municipal institutions
available to help children
and their families will be compiled - and updated , expanded and improved
through field research;
(iii) Specific resources of the programme: local care personnel, 24-hour
telephone lines, vehicles, emergency allocations for food,
clothing, footwear,
medicines, materials and equipment, transport, and anything else needed by
exploited children or their families
when such needs cannot be met immediately
by the ordinary programmes, as well as transit centres (public or
non-governmental) which
accept children immediately for short stays and meet the
daily costs, etc.
254. Furthermore, the Procurator-General, to whom all
the country's procurators report, created an office to provide legal, social
and
psychological assistance for women and children victims of domestic abuse or
violence.
255. The intention is to reverse a policy on crime which over
the past 10 years was aimed exclusively at providing every kind of guarantee
and
safeguard for offenders.
256. The establishment of the Office for
Comprehensive Assistance for Victims of Crime (OFAVI) was based on the
conviction that an
exclusive preoccupation with the offenders had led
institutions to disregard and neglect the victims and thus to victimize them
twice
over. That is why measures must be introduced to help the
victims.
257. This double victimization is inflicted on people who,
having fallen victim to a crime and having reported it, then become victims
of
all the measures taken by the State to investigate the case and bring the
perpetrators to trial. This situation manifests itself
in fear, lack of
protection, ignorance, ill-treatment, wasted time, etc.
258. OFAVI is
considering how to help victims at two levels:
- Provision of social, psychological and medical assistance to protect and
support them. It will try to support victims in any legal
proceedings in which
they become involved;
- Provision of legal assistance throughout the case: explaining to victims
their rights and informing them in language which they
can understand about
matters connected with the production of expert reports (ensuring that their
dignity is respected) and questioning.
259. The ultimate aim is that the
victims should be able to overcome the harm suffered by themselves and their
families.
260. The OFAVI team consists of two doctors, two psychologists,
a psychiatrist, a social worker, four lawyers, and a procurator to
receive
complaints.
261. OFAVI will work through a network of professionals from
governmental agencies already providing fragmented services. These include
a
number of hospital services providing assistance to victims of domestic violence
or child abuse, care centres for children, and
hostels for single mothers.
Although to begin with the Office will give priority to women and children
victims of sexual crimes
or child abuse, it is hoped that its scope will be
extended to all crimes over the next six months.
262. The Office's
objectives and functions are based on the Declaration of Basic Principles of
Justice for Victims of Crime and Abuse
of Power, adopted by the United Nations
General Assembly in November 1985. The following are the Declaration's main
points:
- "Victims" means persons who have suffered harm (including physical or
mental injury, emotional suffering, economic loss or impairment
of their
fundamental rights) through acts or omissions that are in violation of criminal
laws (national or international) or human
rights law;
- Victims must be treated with compassion and respect for their dignity.
They are entitled to access to justice and to prompt redress
for the harm
suffered.
263. One of the first cases that the Office took up concerned a
young woman from Salta province who came to the Federal Capital for
a job; on
her first day in the city she was raped in the house where was employed. After
reporting the rape she returned to her
home town.
264. The case came up
for oral hearing this year. The prosecutor handling the case requested help
from the Office. The OFAVI team
contacted the woman, persuaded her not to be
afraid of flying, and provided her with a ticket to Buenos Aires. A social
worker went
to meet her at the airport and brought her back to the lodgings
taken for her. The social worker also accompanied her to the court
hearings,
and a lawyer explained to her what each step of the proceedings meant. The
victim was also interviewed by psychologists
to prepare her for the moment when
she would have to confront her attacker again.
265. The national
legislation on the wardship of minors (Act No. 10.903 amending the parental
authority regime) provides a guarantee
of a minor's right not to be subjected to
abuse or exploitation. This Act had to be reviewed: some of its provisions
needed to be
amended, for a considerable time has passed since its entry into
force, and its intended beneficiaries were facing new problems.
As a result, at
the end of 1998 an amended version of the Act, which is more fully in line with
the principles of the Convention,
was adopted by the Chamber of Deputies of the
National Congress.
266. In this same connection, on 7 December 1994 the
National Congress adopted Act No. 24.417 on protection against domestic
violence.
This Act states:
"Article 1. Any person who suffers harm or physical or mental injury
by any member of his or her family may report the facts orally or in writing
to
the court having competence in family matters and may request the relevant
precautionary measures. For the purposes of this Act
"family" means a group of
persons having its origins either in a legal marriage or in a de facto
marriage".
"Article 2. When the person suffering the harm is a minor or other
legally incompetent person or an elderly or disabled person, the facts shall
be
reported by their legal representatives and/or the Government Procurator.
Public or private social welfare and education services,
health professionals
and all public officials also have an obligation to report any such cases
discovered in the course of their
work. Minors and other legally incompetent
persons may report the facts directly to the Government Procurator".
"Article 4. Having considered the facts giving rise to the report,
the court may order the following precautionary measures:
(a) Exclude
the perpetrator from the family home;
(b) Prohibit the perpetrator from entering the home or the places of work
or study of the injured party;
(c) Order the return home of a person who has left for reasons of personal
safety, except for the perpetrator;
(d) Make a provisional order on maintenance, custody and communication with
the children.
The court shall fix the duration of such measures in the light of the
circumstances of the case".
The full text of the Act is annexed to the
present report.
267. Attention is drawn by way of example to the measures
taken by the provinces to ensure that parents and other legally responsible
persons perform their duties:
Province of Chaco
268. The
"Candelaria" subprogramme offers an alternative to placement of children in an
institution. The aim is to reunite the family
and ensure that its members
exercise their rights and fulfil their obligations by establishing specific
objectives, targets and activities.
The point is that the programme is not a
substitute for the family but a means of helping to secure its
unity.
269. The "Casas de Estudio y Trabajo" subprogramme establishes
permanent contact with the parents in order to keep them informed about
the
situation of the young people in matters connected with assistance, school
performance, behaviour and health. The families are
also kept informed about
questions of general interest (workshops, social events, discussion groups,
interviews and home visits);
the parents' permission is sought for their
children to take part in activities and they are consulted about the timing of
the children's
return; help is provided for family reunions during school
holidays and with the travel costs of persons living in other locations
or in
remote rural areas; families are encouraged to take part in social events with
their children in the work and study homes.
270. The "Casas del Sol" base
their work on knowledge of the persons being protected and cared for, and they
facilitate the development
of the skills and aptitudes of a family's children.
One of this subprogramme's priorities is to build links with the families in
order to teach them the principles of child-raising and to support the persons
most in need. Sex education workshops were held for
families in 1997 in the
five casas participating in the UNICEF pilot project. In the other casas the
parents are encouraged to take
part in entertainments and commemorative events
and to attend exhibitions of the children's work. The teachers interview the
mothers
in order to obtain fuller details of the children's home backgrounds and
habits.
271. The "Porvenir" subprogramme seeks to provide families with
immediate assistance and with counselling and training to help them
to increase
their incomes, as well as assisting children who have been abandoned, whose
families have broken up, whose parents are
in an unstable relationship, or who
have been excluded from the family home by a step-parent.
272. With
regard to the problem of child abuse, the "Volver a Casa" subprogramme provided
legal advice in one case of abuse involving
three children. It collaborated
with an NGO in the police and judicial procedures. The investigation resulted
in the confirmation
of the allegations and the arrest of the accused. The
children were given psychological help.
273. The "Solidarity Network"
programme deals with the problems of families broken up by domestic violence.
It has been in operation
for only a few months. Assistance is provided at the
request of the victims and/or by referral and it is limited to psychological
support and legal advice on how to proceed with the case.
Province of
Mendoza
274. The family programmes operated locally by the provincial
authorities are designed to strengthen a family's links in order to
facilitate
its members' development and growth and protect their rights.
275. The
general aim of the family promotion and protection programme is to help families
whose most vulnerable members are at risk
of expulsion or exclusion by
strengthening the family bonds and the local support networks. The specific
aims are:
- To provide technical backup and supervision of the management of the
components decentralized to the province's various departments;
- To furnish care and attention to children in their homes when their
parents are temporarily absent for work or health reasons or
are temporarily
unable to care for their children themselves. The persons providing this
service will be chosen by the parents and
will preferably be from the local
community;
- Technical backup, advice and supervision in the formulation and execution
of decentralized domestic violence projects carried out
by municipalities or
NGOs;
- Support for municipalities and grass-roots organizations carrying out
training, leisure and sports activities as supplementary
components of
programmes to enhance the development and growth of children and young people in
a strengthened family space;
276. Another move was to introduce the child
and family development centres, with the general aim of providing integrated
services
for children, especially children whose mothers go out to work. The
specific aims of these centres are:
- To attend to the care, hygiene and diet of children aged between 45 days
and 12 years belonging to needy families living in the
centre's
vicinity;
- To introduce a programme of psychological stimulation and school support
to foster such children's harmonious development and growth;
- To provide meeting spaces for grass-roots activities for the families
having a connection with the centre and for other families
in the community with
a view to consolidating their family bonds.
277. Where assistance,
prevention, etc., are concerned, the province is running a Street Children
Programme for children with problems
of physical or mental abuse, neglect,
negligent treatment, exploitation or sexual abuse; the general aim is to
encourage such children
to return to their families by means of the
street-survival projects operated by the microcentres and to help them to
reintegrate
themselves in their home communities by strengthening the local
support networks. The specific aims are:
- To identify and make contact with families with children aged under 12 in
order to involve them in the street-survival projects;
- To collaborate with the local grass-roots network in support
measures;
- To provide training and work in the family and the community for girls
aged under 12 who are at risk of sexual exploitation;
- To provide economic support to enable children referred by the programmes
operated by the Children's Office to return to their
families;
- To identify local families able to assume temporarily a parental role for
children who cannot continue to live with their own families;
- To introduce specific training modules for dysfunctional families in which
the children have taken over the parents' role as breadwinners,
families whose
bonds are not strong enough to foster the children's development and in which
the children's rights are violated,
families which have expelled their children,
and families with weak links to grass-roots networks.
Province of
Tierra del Fuego, the Antarctic and the South Atlantic
Islands
278. Programme on prevention of abandonment. Family and
social measures for mothers (minors and adults) at social risk. Individual
support is provided, using all the resources of the community, by a group of
social workers trained under an agreement between the
National Council for
Children and the Family and the provincial government. The programme covers the
whole province; at present
there are nine social workers engaged on 72 cases
under the supervision of social services professionals.
279. The
following information is offered, by way of example, about the measures taken to
enable children of working parents to take
advantage of day-care
services:
- Early childhood division. This includes the mother and child day centres,
which look after some 400 children while their parents
are at work,
consolidating the children's social and emotional development, providing a
balanced diet, helping the family to stay
together, and making it easier for
parents to go out to work when their social and economic circumstance so
require. The programme
is restricted to the population at risk, and care
centres are now being set up on the outskirts of the cities.
- Accommodation for school children. Accommodation is provided from Monday
to Thursday for primary pupils whose parents live in
the rural parts of the
province. Out-of-school activities are arranged for the children, who practise
the religion of their parents'
choice, receive a balanced diet, and live in a
family setting with all their basic needs satisfied. There are currently 19
children
in this programme.
Province of Entre
Ríos
280. The need to focus its care policies on the family
prompted the provincial authorities to introduce the following programmes:
"little families"; subsidized foster families; subsidized families; and foster
families. These programmes cater for 600 children
from all over the
province.
Province of Buenos Aires
281. Several programmes
have been devised to promote physical and mental rehabilitation and social
reintegration.
- The "little citizens" programme: the aim is to provide support, advice,
guidance and referral services in situations of domestic
violence and/or severe
crisis reported by telephone, with a view to the early protection of the mental
and physical integrity of
children and their nuclear families.
- The social assistance service for families: this service provides
non-institutional support for families or unmarried couples with
children who
are exhibiting behavioural problems or are affected by problems which have led
to judicial intervention. Its case load
has increased because it is regarded as
a valuable referral resource by the juvenile courts and by community
institutions in general:
it offers a specific approach to family conflicts,
whose number is increasing every day.
- The programme on temporary economic support to avoid placement: the aim is
to avoid the placement of children, young people and
under-age mothers in the
event of economic difficulties with child-raising or support in the home. This
one-year programme is part
of an agreement with the Procurator-General of the
provincial Parliament. Its design includes an evaluation matrix for the
continuous
assessment of children at risk throughout the
province.
Province of Chubut
282. The Act on the
comprehensive protection of children and the family urges anyone who becomes
aware of a situation detrimental
to a child's physical, mental or social
integrity to report it to the competent agencies.
283. Such reports are
confidential in respect of the identity of the informants and the contents of
the report.
Article 20. Children temporarily or permanently deprived of their family environment
Province of Buenos
Aires
284. The province has introduced a number of programmes for the
protection of children temporarily or permanently deprived of their
family
environment.
Public assistance institutions
These bodies provide protection and other services for juveniles in
situations of social/family conflict. The province has 28 institutions
with 888
places. The number of places provided did not change during the period
1993-1997.
Residential homes
These homes provide juveniles referred by the courts by reason of social
problems with a home in which they receive an adequate
diet, clothing, education
and work training. The services are provided by NGOs under agreements with the
province's Council for
Children and the Family, which supervises them in
accordance with the programme's objectives. This programme has 238
establishments
and 4,611 places. The increase in the number of places during
the period 1993-1997 and the greater use made of subsidized private
institutions
instead of public ones point to a policy of providing funding for grass-roots
organizations working with children at
risk.
"Little
homes"
These homes attend to the upbringing of children and young people who lack
the protection of a family for reasons reversible in
the medium- or long-term or
who find themselves in situations which cannot be reversed directly, with a
guaranteed stay for as long
as necessary in a family-style context. The
province has 61 establishments with 545 places in this
programme.
Transitional homes
This programme is designed to prevent the break-up of families and provide
continuing assistance in an effort to solve the problem
in question; it houses
juveniles on a temporary basis for a maximum of six months. The programme and
its nine establishments with
51 places was absorbed in 1996 by the residential
homes programme.
Family homes for street children
This programme has 29 establishments with 649 places and provides care for
street children in the family homes of reliable adults
Penal
institutions
These institutions care for juveniles in conflict with the law, providing
appropriate treatment in each specific case. The juveniles
may be housed in
various care institutions, depending on the seriousness of their offence and
their psychological make-up. At present
the province has 12 establishments with
323 places.
Support centres
These institutions cater under an open regime for juveniles aged 12 to 18
who are at serious social risk or have committed minor
offences: the inmates
live together and receive individual attention. The province has five of these
establishments with 46 places.
Integrated metropolitan
system
This system offers an alternative means of training and graduating
juveniles placed in institutions for social welfare reasons;
given the right
personal and social attitudes they can take either instruction in vocational
subjects for the award of a higher academic
qualification or short vocational
training courses to enable them to obtain jobs. Every young person in the
programme receives a
study grant and technical supervision by professional
psychologists. The programme is implemented under an agreement with the
Procurator-General
of the Court of Justice of Buenos Aires province which
requires each party to contribute funds. Economic support is also received
from
private institutions and members of the Legislature.
Province of
Chaco
285. See the table in the annex, which sets out the various
provincial programmes.
Province of Mendoza
286. Mendoza
has introduced a family-carers programme with the general aim of helping
children and groups of siblings aged up to 20
who do not have serious
behavioural problems but have been temporarily or permanently deprived of their
own families and are technically
in a situation of risk and/or neglect by
furnishing a supportive family environment, which provides access to education
and training,
gives the children an identity, and fosters the comprehensive
development of their personalities and their integration in the
community.
287. There is also the "Shelter" programme, which has the
general aim of protecting children's rights by providing comprehensive attention
to their social and personal development and psychological integrity, housing
them in residential homes for as long as necessary
and then promoting their
reintegration in their families and communities.
Province of Tierra
del Fuego, the Antarctic and the South Atlantic Islands
288. A foster
families programme was operating successfully in 1997. It provides training for
the public at large with a view to
securing an alternative solution for children
and young people who for various social and family reasons have to be removed
temporarily
from their natural families until the circumstances causing the
intervention have been corrected. Direct individual care is furnished
to
children and young people from seriously dysfunctional families in which the
parental roles are not clearly established and the
atmosphere is one of
violence, etc.
289. The year 1997 was significant in that it marked a
turning-point in the interest taken by the public in this kind of alternative
system. The programme covers the whole province and has 14 families registered
in the town of Ushuaia and 12 in Río Grande.
The main difficulty is to
persuade juveniles to accept this care alternative; methods are being devised to
overcome this problem.
290. The annex contains statistics on the
programme for 1994-1995.
Article 21. Adoption
291. Where
subparagraph (a) of this article is concerned, as stated in the information on
the action taken to prevent trafficking
in minors the Government adopted Act No.
24.779 of 28 February 1997 amending the regulations on adoption contained in the
Civil Code.
292. The new legislation is based on full respect for the
best interests of the child and establishes clear rules designed solely
to
ensure that all adoptions are granted by the competent judicial authorities in
full compliance with all the requirements of the
legislation:
General
provisions
"Article 311. The adoption of unemancipated minors shall be granted
by judicial order at the request of the adoptive parent. Persons of the age
of
majority and emancipated minors may be adopted with their consent
when:
1. The person is the child of the adoptive
parent;
2. The person has the status of child, duly verified by the
judicial authority".
"Article 312. No one may be adopted by more than one person at the
same time, except when the adoptive parents are married to each other. However,
in the event of the death of the adoptive parent or of both the adoptive
spouses, the same minor may be adopted for a second time.
An adoptive parent must be at least 18 years older than the person to be
adopted, except when a surviving spouse adopts the adopted
child of a
predeceased spouse".
"Article 313. Several minors of either sex may be adopted
simultaneously or in succession.
In the event of such a multiple adoption, all the adoptions must be of the
same type. The adoption of a child of one's spouse shall
always be regarded as
simple adoption".
"Article 314. The fact that an adoptive parent has descendants shall
not prevent an adoption, but such descendants may be heard by the court,
with
the attendance of a juvenile procurator if necessary".
"Article 315. Any person who satisfies the requirements of this Code may be an adoptive parent regardless of his or her civil status, provided that he or she can prove reliably and without
any doubt permanent residence in the country for a minimum period of five
years prior to the application for custody.
Adoption is prohibited in
the following cases:
(a) Persons under the age of 30 may not adopt unless they are spouses who
have been married to each other for more than three years.
Spouses who have not
been married to each other for three years may adopt, provided that they can
prove that they are unable to
have children;
(b) Ascendant relatives
may not adopt descendant relatives;
(c) Brothers and sisters may not
adopt their half-brothers of half-sisters".
"Article 316. An adoptive parent must have had the child to be
adopted in his custody for a period of not less than six months but not more
than
one year fixed by the court.
Adoption proceedings may not begin until six months have passed from the
start of the custody.
Such custody must be granted by a court having jurisdiction in the child's
place of residence, where the child's abandonment has
been verified by a
court.
These conditions do not apply to the adoption of the child or children of a
spouse".
"Article 317. The following conditions apply to the
award of custody:
(a) The child's parents must be named, so that they can give their consent
to the award of custody with a view to adoption.
Such consent is not needed when the child is living in a care establishment
and the parents have taken no interest in him for a
whole year or when the
child's moral or material neglect is obvious and continuing and one of these
situations has been verified
by the judicial authority. Nor is it needed when
the parents have been deprived of parental authority or when they have stated in
legal form their express wish to give the child up for adoption;
(b) The court must interview the child to be adopted in person;
(c) The court must know the personal circumstances, age and aptitudes of
the child or children to be adopted and take into account
their needs and
interests, having benefited from an actual contribution by the Government
Procurator and heard the opinion of the
technical team consulted for this
purpose;
(d) The conditions stated in the preceding subparagraph shall likewise
apply with respect to the biological family.
If the court fails to comply with the conditions stated in subparagraphs
(a), (b) and (c) the award of custody shall be void".
"Article 318. The award of custody of a child by a written
instrument or administrative act is expressly prohibited".
"Article 320. A married couple may adopt only if they act jointly,
except in the following cases:
(a) When a legal separation order is in force;
(b) When one of the spouses has been declared insane; in such cases the
court must hear the curator and the Government Procurator
for Minors;
(c) When a court has declared the simple absence, the absence presumed
dead, or the forced disappearance of the other spouse".
"Article
321. The following rules must be observed in the adoption hearing:
(a) The proceedings must take place before a court at the place of
residence of the adoptive parent or at the place where custody
was
awarded;
(b) The parties in the proceedings are the adoptive parent and the
Government Procurator for Minors;
(c) If it deems fit in the light of the child's age and personal
circumstances, the court may allow the child to be present during
the
proceedings, in accordance with the law, together with any other person which
the court deems appropriate with a view to protecting
the child's
interests;
(d) The court shall assess whether the adoption is appropriate for the
child on the basis of the means of subsistence and the moral
and personal
qualities of the adoptive parent or parents; it shall also take into account the
age difference between the child and
the adoptive parent;
(e) The court may order and the Government Procurator for Minors may
require any evidence or other information which they deem fit;
(f) The hearings shall take place in private and the record shall be
classified as confidential. It may be examined only by the
parties, their
counsel and authorized representatives, and the experts taking part in the
proceedings;
(g) The court may not deliver up or remit the documents of the case and may
issue only statements of its findings in response to
a justified request by
another court, which shall be obliged to respect the principle of
confidentiality in order to protect the
child's interests;
(h) The court's order must state that the adoptive parent has undertaken to
inform the child about his biological origins;
(i) The court must in all cases take the best interests of the child into
account".
"Article 322. The adoption order shall have effect retroactively to
the date of the award of custody.
In the case of a child of a spouse the retroactive effect shall run from
the date of the initiation of the proceedings".
293. The current
legislation establishes two categories of adoption.
294. Full
adoption, which is irrevocable. It confers on the adopted child a filiation
which takes the place of the original filiation. The child ceases
to belong to
his biological family and kinship with the members of that family is
extinguished together with all its legal effects,
with the sole exception that
the impediments to marriage persist. The child has in his adoptive family the
same rights and duties
as a biological child (art. 323).
295. Full
adoption may be granted only with respect to children:
(a) Who are
orphaned of both their parents;
(b) Who have no accredited
filiation;
(c) Who are living in a care establishment and their parents
have taken no interest in them for a whole year or when their moral
or material
neglect is obvious and continuing and one of these situations has been verified
by a judicial authority;
(d) Whose parents have been deprived of
parental authority;
(e) Whose parents have stated in legal form their
express wish to give them up for adoption.
296. The requirements of
articles 316 and 317 must be satisfied in all cases (art. 325).
"Article 327. Once full adoption has been granted, the adopted child
may not be recognized by the biological parents, nor may the child institute
filiation proceedings in respect of the biological parents, with the sole
exception of cases when the purpose of such proceedings
is to prove an
impediment to marriage in accordance with article 323".
297. Simple
adoption, which confers on the adopted child the status of biological son or
daughter, but without creating kinship between the child and
the biological
family of the adoptive parent except for the purposes specified expressly in the
Code. When it is more appropriate
for the child or at the request of one of the
parties on justified grounds, the court may grant simple adoption (art. 330).
The
adopted children of the same adoptive parent are regarded as
siblings.
"Article 331. The rights and duties deriving from the adopted
child's biological link are not extinguished by the adoption, except for
parental
authority including the administration and usufruct of the child's
property transferred to the adoptive parent, except in the case
of the adoption
of a child of a spouse".
"Article 333. An adoptive parent is heir to an intestate adopted
child and is compulsory heir on the same terms as a biological parent; but an
adoptive parent does not inherit property acquired by an adopted child free of
charge from the biological family or property which
an adopted child has
received free of charge from the adoptive family. Adoptive parents exclude
biological parents with respect
to other property".
"Article 334. An adopted child and his descendants are heirs by
proxy of the ascendant relatives of the adoptive parents but not compulsory
heirs.
The descendants of an adopted child are heirs by proxy of an adoptive
parent and also compulsory heirs".
298. Simple adoption may be revoked on
the following grounds:
(a) Disqualification of the adopted child or adoptive parent in the cases
established in this Code which prevent succession;
(b) Denial of
maintenance without justified cause;
(c) Justified petition by an
adopted child who is of age;
(d) By legally certified agreement of the
parties, when the adopted child is of age.
From the moment it is declared
by a court such revocation extinguishes all the future effects of the adoption
(art. 335).
299. Following simple adoption the adopted child may be
recognized by the biological parents and may institute filiation proceedings.
Neither of these situations alters the effects of the adoption established in
article 331 (art. 336).
300. Nullification and registration of adoptions:
according to article 337,
"(1) An adoption shall be subject to absolute nullity if obtained in
violation of the rules on: (a) the age of the adopted child;
(b) the age
difference between the adopted child and the adoptive parent; (c) adoptions
involving a necessary prior unlawful act,
including the presumed or apparent
abandonment of the child deriving from the commission of an offence of which the
child and/or
his parents were the victims; (d) simultaneous adoption by more
than one person except when the adoptive parents are married to each
other; (e)
the adoption of descendant relatives; or (f) adoption of a half-brother or
half-sister by a sibling;
(2) An adoption shall be subject to relative nullity if obtained in
violation of the rules on: (a) the minimum age of the adoptive
parent; or (b)
defects connected with consent.
301. The effects of adoptions granted
abroad:
"Article 339. If the adoption was granted abroad, the legal
situation between an adopted child and an adoptive parent and their rights and
duties
shall be governed by the law of the child's domicile at the time of the
adoption".
"Article 340. An adoption granted abroad in accordance with the law
of the child's domicile may acquire the status of full adoption provided that
the requirements of this Code are satisfied and both the child and the adoptive
parent authorize and consent to such status. If
the child is under-age, the
Government Procurator for Minors must act in the proceedings".
302. In
accordance with the reservation entered to article 11 of the Convention,
subparagraphs (b), (c), (d) and (e) of that article
do not apply in areas within
the jurisdiction of the Republic of Argentina because before they can be applied
a strict mechanism
must exist for the legal protection of children in matters of
intercountry adoption, in order to prevent trafficking in and the sale
of
children.
Province of Tierra del Fuego, the Antarctic and the South
Atlantic Islands
303. The province is operating an adoptions
programme. In accordance with a decision of its Supreme Court, the register of
prospective
adoptive families and the expert assessment of persons wishing to be
included in the register are the responsibility of the technical/administrative
agency - the province's Office for Children and the Family. Each department
maintains a register of its own, and a register covering
the whole province is
currently under preparation. The province has a demand for children for
adoption. Support mechanisms for
health, employment and housing, etc., are in
place to avoid the rupture of the mother/child bond. The province has a total
of 63
families registered; they are attended to in the order of their
application.
Intercountry adoption
304. The first step is
to determine when an adoption should be regarded as "intercountry"; this report
will use definitions taken
from the international instruments on intercountry
adoption, even if Argentina is not a party to them: The Hague Convention on
Protection
of Children and Cooperation in Respect of Intercountry Adoption of
1993 and the Inter-American Convention on Conflict of Laws concerning
the
Adoption of Minors of 1984.
305. These two instruments contain similar
definitions of adoption. Although the Hague Convention deals mainly with
procedural questions
and the Inter-American Convention mainly with aspects of
substantive law, it is apparent from both of them that intercountry adoption
requires that the adoptive parent or parents should have their habitual domicile
or residence in one State party and the child to
be adopted should have its
habitual residence in another State party.
Possibility of
intercountry adoption under current legislation
306. On the basis of
this definition of intercountry adoption it can be concluded that Argentina's
current adoptions legislation (Act
No. 24.779), which requires an adoptive
parent to have resided permanently in the country for five years before
submitting the application
for custody, totally excludes the intercountry
adoption of children domiciled in Argentina, for Argentine legislation (art. 321
(a))
would apply in such cases, and the adoptive parents would have to prove
permanent residence in Argentina.
307. It must be pointed out that
Argentina's legislation does not pronounce against intercountry adoptions
granted under the law of
another country.
308. Chapter V of the Adoptions
Act addresses the effects of adoptions granted abroad and provides that they
shall be governed by
the law of the child's domicile.
309. This makes it
clear that Argentina's legal system respects other national systems, which are
often based on social situations
completely different from Argentina's and may
regulate adoptions differently from Argentina; Argentine law establishes the
procedure
for recognizing the effects of such adoptions in
Argentina.
310. Furthermore, the provision contained in article 321 (a),
which stipulates that adoption proceedings must take place before a
court at the
child's place of domicile or the place where custody was granted, gives rise to
the hypothetical case of the intercountry
adoption of a child domiciled abroad
adopted by an adoptive parent domiciled in Argentina.
Reasons for Argentina's reservation in respect of subparagraphs (b), (c),
(d) and (e) of the Convention
311. At the time of the adoption of Act
No. 23.849 the National Congress stated that these subparagraphs would not apply
in Argentina
because before they can be applied a strict mechanism must exist
for the legal protection of children in matters of intercountry
adoption, in
order to prevent trafficking in and the sale of children.
312. These reasons why Argentina still maintains this reservation must be
explained more fully. There are two basic reasons:
1. To prevent
trafficking in children
313. There is no doubt that many cases of
unlawful adoption have occurred under the guise of intercountry adoption in
violation of
the rights of the child and constituting criminal acts of
trafficking in children.
314. Of interest here is a study entitled "Sale
of and trafficking in children in Argentina" produced in 1989 by Defence for
Children
International and the Secretariat for Human Development and the Family
of the Ministry of Health and Social Welfare, in which the
283 interviews led to
a number of conclusions; attention is drawn to the following ones:
- It is possible speak of a "national market" in Argentina because children
are bought and sold. The 134 known cases which emerged
from the 283 interviews
held in various sectors indicate knowledge, in most cases direct knowledge, of
49 cases of the sale of children,
together with 15 explicit offers made to
professionals, married couples wishing to adopt, and poor mothers to exchange a
child for
money, or in the case of adoptive parents of to exchange money for a
child.
- The following points emerged about the international market: (a) "How
hypocritical are Argentinians, who refuse to regularize the
emigration of
children but tolerate the clandestine transfer of thousands of Argentine
children to Europe" (comment made by an Italian
judge to Dr. Atilio Alvarez,
consultant in civil juvenile justice (12th Congress of Juvenile Magistrates of
the Inter-American Association
of Juvenile Magistrates, Rio de Janeiro, August
1986); (b) A book entitled "How to Adopt from Latin America" (Dillon Press,
Minnesota,
USA, 1981) recommends anyone wishing to adopt a white child "to go to
Chile, Costa Rica or Argentina"; (c) "In Argentina, where 90%
of the population
is descended from Europeans, there is an especially strong demand for blue-eyed
blond-haired children, whose price
can be as high as 20,000 dollars"
(Newsweek, 6 June 1987).
- Although Argentina, unlike the rest of Latin America, has many families on
the waiting list to adopt, traffickers transfer children
whom they cannot place
in Argentina to other countries, where the profits are higher.
- The study verified 15 specific allegations of the sale of or trafficking
in children to foreign countries; in 10 cases there was
evidence of payments for
babies ranging between 500 and 2,000 dollars.
- It was concluded from the interviews with persons at risk of giving up
their children that surrender or sale were due less to the
existence of a supply
from such persons than to the pressure of the demand.
315. The judicial
authorities are investigating a number of reports of clandestine intercountry
adoptions, alteration of children's
identities, and mothers who have sold their
children; these cases have not yet been cleared up (sometimes owing to the lack
of effective
international judicial cooperation on the part of some
countries).
316. Also under investigation are cases in which newborn
Argentine babies were registered in the Civil Register as children of foreign
parents, at the instigation of an organization seeking mothers willing to sell
their children, and in which foreign families were
willing to register the
babies as their own.
317. There have been cases in which a foreign woman
would enter Argentina for a week and give birth in that very same week, then
return
home with a supposedly newborn baby.
318. It is clear from the
foregoing that trafficking in children is a fact in Argentina and that this
trafficking would be increased
by legalization of the intercountry adoption of
children domiciled or resident in Argentina, for such a move would add to the
national
demand the demand from abroad which brings very strong economic
pressure to bear on the various sectors involved in adoption
proceedings.
2. Argentina's social reality
319. Surveys
reveal more prospective adoptive parents than children available for adoption.
For example, in the Federal Capital in
1998 300 families were approved by the
National Council for Children and the Family as prospective adoptive parents,
and 80 children
were given in adoption. The ratio is not the same in the
provinces, but on average there are far more prospective adoptive families
than
children available for adoption.
320. Given this actual situation, it
would be unwise to seek in intercountry adoption a means of protecting children
habitually domiciled
or resident in Argentina.
Legal safeguards of the interests of children introduced by Argentina to
ensure adoption in accordance with the principles of the
Convention
321. There follows an account of the commitments in
respect of adoption undertaken by Argentina when it approved the Convention,
including
the manner in which Argentina has fulfilled these commitments.
1. In all actions concerning children, whether undertaken by public or
private social welfare institutions, courts of law, administrative
authorities
or legislative bodies, the best interests of the child shall be a primary
consideration (art 3, para. 1)
322. Argentina's legislation,
jurisprudence and doctrine are consistent in emphasizing the best interests of
the child as a guiding
principle of all actions concerning children which takes
precedence in any adoption procedure.
2. States Parties undertake to respect the right of the child to preserve
his or her identity, including nationality, name and family
relations as
recognized by law without unlawful interference (art. 8, para.
1)
323. Article 321 (h) of the Adoptions Act establishes the obligation
of adoptive parents to inform the adopted child about his biological
origins.
Where nationality is concerned, it should be made clear that the legislation
does not entail a change of the child's nationality,
for Argentine nationality
is acquired by jus soli, except in the cases envisaged in the Citizenship
Act (No. 346; Decree No. 231/95), which allows the children born abroad to
Argentine
nationals to take their parents' nationality (this possibility is not
automatic but optional).
324. The right to an identity includes the
child's culture and language, and Argentina tries to ensure that abandoned
children are
adopted by parents living in the same region as the child, in order
not to alter its cultural environment. Since prospective adoptive
parents
outnumber children available for adoption, the
delivery of children domiciled or resident in Argentina for adoption by a
family living abroad would impair the right to an identity;
Argentina is
justified on this ground in maintaining its reservation to the
Convention.
325. That same objective is achieved by means of the
requirement included in the new Adoptions Act (No. 24.779) that all adoptive
parents must reside for five years in Argentina before they may apply for
custody of a child, for the adoptive parents will necessarily
have had to reside
in the same country as the child to be adopted.
326. It should be pointed
out that the situations which arose under the former legislation, when a
potential adoptive couple would
enter Argentina for a couple of weeks and then
leave with an Argentine child in their custody, could not occur under the new
Act
(in force since 9 April 1997) because of the five years' residence
requirement.
3. Where a child is legally deprived of some or all of the elements of
his or her identity, States Parties shall provide appropriate
assistance and
protection, with a view to speedily re-establishing his or her identity
(art. 8, para. 2)
327. The justice system has dealt with a number of
reports of clandestine intercountry adoption, alteration of children's identity,
and mothers who have sold their children; it is investigating other such
reports.
4. [States Parties shall] ensure that the adoption of a child is
authorized only by competent authorities who determine, in accordance
with
applicable law and procedures and on the basis of all pertinent and reliable
information, that the adoption is permissible in
view of the child's status
concerning parents, relatives and legal guardians and that, if required, the
persons concerned have given
their informed consent to the adoption on the basis
of such counselling as may be necessary (art. 21, para.
(a))
328. With regard to this article's reference to competent
authorities, it has been established that only the courts are competent
to grant
adoptions, the procedure being supported by all the guarantees of due process.
The wording of the new Act means that the
adoption of children domiciled in
Argentina is decided by local courts applying Argentine law (adoptive parents
and children candidates
for adoption must have the same residence); this
arrangement has obvious advantages: (1) the advantage of a local court, for the
domestic courts will be in a better position to decide where the child's best
interests lie: thanks to the requirement that prospective
adoptive parents must
be resident in Argentina a local court is able to make direct contact with both
the parties and familiarize
itself with their social backgrounds, which makes it
easier to obtain and weigh any evidence needed; (2) the advantage of the
application
of Argentine law by Argentine courts.
329. The new Act
provides for the creation of a national register of prospective adoptive parents
as a means of ensuring that the
judicial machinery will be able to satisfy the
wishes of such parents more quickly. It may thus be argued that if legal
adoption
becomes a flexible path for adoptive parents to take in the future, it
will be helping to achieve the purpose of the Act, for adoptive
parents will
choose such a lawful path; in other words, the Act will also have an instructive
function.
5. States Parties shall take all appropriate national, bilateral and
multilateral measures to prevent the abduction of, the sale of or
traffic in
children for any purpose or in any form (art. 35)
330. The measures
taken against the intercountry adoption of children resident in Argentina will
help to prevent trafficking in children
under the cloak of intercountry adoption
by removing the pressure of the overseas demand for
children.
331. Attention is drawn to the Inter-American Convention on
International Traffic in Minors, which is not yet in force in Argentina
although
the Executive has completed the procedures for its ratification and it has been
submitted to the National Congress for approval.
332. At present, the
maintenance of the reservation to the Convention on the Rights of the Child and
the non-ratification of international
instruments on adoption are positions
taken by Argentina in order to comply effectively with the principles of the
Convention and
protect children's best interests and their right to an identity,
which is the most important right after the intrinsic rights to
life and
physical integrity.
333. This opposition to the transfer of children
abroad is not the result of an arbitrary decision but of one taken out of
respect
for children's cultural and social dimensions, for they have a right to
their own culture even if they have lost their family.
334. Nevertheless,
Argentina believes that the protection of children by the international
institutions having responsibility for
children must be strengthened; to this
end it must be understood that the structure of these institutions needs to be
reorganized
and that they should be run by specialists in children's
affairs.
335. Intercountry adoption should be a possibility only when the
country of origin has no persons wishing to adopt.
Article 22. Refugee
children
336. Argentina's legislation makes no age distinction with
respect to asylum-seekers. This is basically because the 1951 Convention
and
the 1967 Protocol do not envisage any special treatment for
children.
337. In principle, all minors, whether accompanied or not, are
entitled to request asylum. In fact, since the creation of the Committee
on
Eligibility for Refugee Status in 1985, there have been at least four
applications by unaccompanied minors, three of which were
approved and one
rejected on the basis of an examination of the grounds. None of this is
prejudicial to the application, where necessary,
of special rules on
minors.
338. The authorities rejected this one application by an
unaccompanied minor because it had been lodged by a minor who declared that
he
had been recognized as a refugee by the Government of Brazil. Once the
necessary consultations had taken place, the decision
to reject was confirmed
even though the child remains in Argentina because expulsion is not considered
appropriate in the light of
the principle of the protection of the
child.
339. The right to petition for refugee status includes all the
usual procedural stages: application, right to make and to amplify
a statement,
right to appeal in the event of rejection in the first instance, and recourse to
judicial proceedings. Special account
is taken of the child's age in all
proceedings, in order to prevent them having a traumatic or other undesirable
effect.
340. The right also includes all the gender-based procedures;
applicants are interviewed by persons of the same sex, and in the case
of
refugee girls special inquiries are made into the situation of women in the
country of origin.
341. Again in the case of girls, more than usual
weight is attached to the objective analysis of the situation in their country
of
origin and the situation of their direct family members and/or closest
relatives.
342. Children who apply to the Committee on Eligibility for
Refugee Status are considered individually and in person in the light
of the
degree of fear shown when they appear, in company of their parents, tutors or
other persons legally responsible for them,
and particular account is taken of
their vulnerability.
343. If a child's application is based on its
relationship to an adult applicant, the granting of asylum depends on the
outcome of
the adult's application and it is considered from the standpoint of
family reunification in the light of the principle of family
unity; if the
adult's application is accepted, the child is awarded the same refugee
status.
344. It should also be pointed out that all foreigners recognized
as refugees acquire the same rights and obligations in Argentine
territory,
without distinction as to sex, age or the grounds for their recognition, and
that the age limitations contained in general
legislation apply to
them.
345. The State, acting through the competent authorities, assumes
the duty of protecting the interests of unaccompanied minors, and
appoints an
adult to take responsibility for such minors when appropriate.
Article
23. Children with different capacities
346. Notwithstanding any
special measures adopted for the disabled, it may be noted that, as far as
minors with physical or mental
disabilities are concerned, Argentina has brought
its legislation into line with the Declaration on the Rights of Mentally
Retarded
Persons and the Declaration on the Rights of Disabled Persons, which
were proclaimed by the United Nations in 1971 and 1975 respectively.
The
relevant legislation in this regard is Act No. 22.431 on comprehensive
protection for persons with disabilities, which reads
in part:
"Article 1. This Act institutes a system of comprehensive protection
for persons with disabilities, aimed at providing them with medical care,
education and social security, granting them the exemptions and incentives that
will enable them, insofar as possible, to overcome
the handicap caused by their
disability and giving them the opportunity, by their own efforts, to play a role
in the community equivalent
to that of ordinary individuals".
"Article 2. For the purposes of this Act, a disabled person is any
person suffering from a long-term physical or mental functional impairment
which, having regard to his age and social environment, gives rise to
considerable problems as far as integration into the family,
society, education
and work is concerned".
"Article 4. Through its agencies, the State shall provided the following services to disabled persons to the extent that they themselves, the persons on whom they are dependent and the welfare bodies to which they belong are unable to do so: (1) comprehensive rehabilitation, understood as the development of the abilities of disabled persons; (2) occupational or vocational training; (3) loans and grants to facilitate professional or intellectual activity; (4) special social security schemes; (5) education in ordinary establishments, with the necessary assistance provided
free of charge, or in special establishments when the degree of disability
makes attendance at an ordinary school impossible; (6)
individual, family and
social guidance and advancement".
"Article 14 bis. Allowances for primary, secondary and higher
education and maintenance grants shall be doubled if a worker has a dependent
child
of any age who is disabled and attends a public or private establishment
under the supervision of the competent authority in which
ordinary or special
education is provided.
For the purpose of this Act, regular attendance by a worker's dependent
disabled child at a public or private establishment under
the supervision of the
competent authority and providing exclusively rehabilitational services shall be
regarded as regular attendance
at an establishment providing primary
education".
347. Decree No. 762/97 created the system of basic allowances
for disabled persons.
348. Act No. 24.901 created the system of basic
allowances for the comprehensive treatment and rehabilitation of disabled
persons.
349. Telecommunications: Acts Nos. 24.204 (1993) and 24.421
(1995) stipulate that telephone companies must provide a public telephone
service for deaf persons and persons with speech impediments.
350. The
Federal Disability Council was established by Act No. 24.657
(1996).
351. Cinematography: Resolution No. 1168/97 provides that all
feature films produced in Argentina must be subtitled in the national
language
so that persons with hearing disabilities may watch them.
352. By
Resolution No. 1656/97 the Secretariat for Culture created the programme "Let's
integrate through culture", the aims of which
are to provide access for the
disabled to cultural activities and to capitalize on and disseminate their
experience, knowledge and
learning as makers of culture. In addition,
Resolution No. 1700/97 exempts disabled persons from payment of any admission
charges
to concerts, shows, exhibitions and all other events organized by the
Secretariat.
353. By Resolution No. 67/98 the Secretariat for the Civil
Service created the system for monitoring the application of article 8
of Act
No. 22.431 on compliance with the allocation of a percentage of posts to
disabled persons who satisfy the job description
(the State must recruit a
minimum of four per cent of its total workforce on these terms).
354. All
the information provided on this point is without prejudice to any enabling acts
adopted by the provinces and specific legislation
on disability,
including:
- Act No. 10.315 on grants for out-patient treatment in psychiatric
institutes;
- Act No. 10.205 on welfare benefits;
- Act No. 11.134 on priority for the purchase of protected workshops and
State cooperation;
- Act No. 10.836 on transport for disabled persons travelling with a
companion;
- Act No. 10.592 on the basic and comprehensive legal regime for the
disabled.
National Advisory Committee for the Integration of Disabled Persons
(Office of the President)
355. Act No. 24.657, which was adopted on 5
June 1996 and promulgated on 5 July 1996, established the Federal Disability
Council with
the status of a State Secretariat. It is headed by the Chairman of
the National Advisory Committee and is made up of permanent members:
the chief
officials responsible for disability at the national and provincial levels and
of Buenos Aires City, representatives of
non-governmental and disabled-persons
organizations, appointed in an advisory capacity, and invited members. It has
the following
functions under article 3 of the Act:
(a) To assess
problems common to disabled persons throughout Argentina and the specific
problems of each region and province;
(b) To identify the causes of such
problems and analyze the measures taken to deal with them in order to determine
whether the measures
should be approved or changed;
(c) To recommend
courses of action for the organization of sectoral policies of national
scope;
(d) To promote periodic national congresses on disability,
organized by the Council;
(e) To undertake activities and projects to
meet the objectives listed in article 2 of the Act;
(f) To coordinate
the discussion of topics of common interest with the Federal Health Council, the
National Council for Children
and the Family, the Federal Housing Council and
other similar bodies;
(g) To assess the results of the implementation of
the proposed policies and measures.
356. Decree No. 1027/94 establishes
inter alia the functions of the National Advisory Committee with regard
to vocational training and employment, publicity campaigns, rights,
publicizing
of rights, services, national disability data bank, legal services, culture,
universities and sports.
Autonomous City of Buenos
Aires
357. The City's Constitution states:
"Chapter 13:
persons with special needs.
Article 42. The City accords to persons with special needs the rights to
full integration, information and equality of opportunities.
It shall carry out policies for promotion and comprehensive protection
connected with prevention, rehabilitation, training, education
and integration
in society and employment.
It shall provide for the development of an environment free of natural,
cultural, linguistic, communication, social, educational,
architectural,
urban-layout and transport obstacles, and of obstacles of any other kind, as
well as for the removal of the existing
ones".
Article 24. Health, treatment and rehabilitation
358. The
following points may be made in addition to the information given in connection
with article 6 of the Convention.
Province of
Chubut
359. In the context of the restructuring of the areas falling
within the scope of the health and welfare card, attention is drawn
to the
creation by Act No. 4.160 on the Social Assistance Institute (Provincial
Lottery).
360. The province also adopted Act No. 4.249 on the provincial
health system, which provides for the restoration of the Executive's
authority
for the formulation of health policy, and for the creation of a Management Board
made up of representatives of the various
health agencies, which will be
responsible for implementing such policy.
361. In accordance with the
purposes and powers assigned to the Board, it must harmonize supply and demand
with regard to community
needs and the system's response capacity. The
representation of the health agencies on the Board ensures equity in the
distribution
of the resources and the rational implementation of health policy
and that the measures will satisfy the differing needs in the region
and deliver
equality of access for the whole population.
362. Act No. 4.262 created
the province's Executive Unit for Social Prevention, which provides scientific,
professional and technical
support for the other agencies of the Ministry of
Health and Social Welfare.
363. Lastly, work has been done in this
context on governmental action to affirm the family in its broadest sense as the
natural setting
for the protection of all children. This is the basis for the
formulation of responses for children with problems in terms of support,
care
and protection for the family in a community context.
364. The
implementation of these responses is no simple matter, especially when it comes
to enhancing grass-roots awareness of this
approach, which seeks to avoid the
old remedy of placing children in institutions.
365. Accordingly, the
provincial State has a dual responsibility in this regard, for in addition to
promoting measures targeted on
the various problems it must also envisage global
measures designed fundamentally to secure grass-roots awareness of and a
specific
commitment to children.
366. The provincial health system also
has a Maternity and Children's Department.
367. Since 1993 this
Department has been operating the mother and child care programme, which is
responsible for an array of measures
for the protection of the health of mothers
and children.
368. In this connection Chubut has introduced the perinatal
clinic form of the Perinatal Information System (CLAP-WHO/PAHO).
369. In
addition, under an agreement with the Ministry of Health and Social Welfare it
has initiated in the province the Nutrition
Programme for Mothers and Children
(PROMIN).
370. This programme is fully operational in the town of Puerto
Madryn, and preparations are under way for its introduction next year
in the
municipalities of the north-west area.
371. Facilities for the treatment
of adolescents have been established in the hospitals, for example the
Dr. Pozzi Integrated Adolescent
Health Centre in Andrés Isola
Hospital in Puerto Madryn itself. There are also adolescent health teams in the
Trelew, Esquel
and Comodoro Rivadavia Hospitals.
372. The CLAP Adolescent
Information System is also being introduced.
Province of Santa
Fe
373. The provincial maternal and child health programmes are part
of the overall system of Health Ministry activities and include
health
monitoring measures.
374. The coordinators of these programmes have
studied the strategies available at the local, national and international levels
for
dealing effectively with the population's health problems.
375. The
following are the province's priority health programmes:
- Perinatology: the principal objective is to reduce maternal and perinatal
mortality and morbidity associated with pregnancy, delivery
and puerperal
problems;
- Vaccination: the aim is the total prevention of deaths from diseases
preventable by vaccination and to reduce the morbidity associated
with these
diseases;
- Growth and nutrition: the aim is to reduce mortality caused by or
associated with malnutrition and to improve the quality of the
treatment of
nutritional problems;
- Acute respiratory infections: the 1990 mortality rate for pneumonia and
sepsis among under-fives was 47.75 per 100,000; this programme
is therefore
designed to reduce this rate to 43 per 100,000 by 2000;
- Diarrhoeal diseases: this programme's objective is to reduce mortality and
morbidity caused by diarrhoeal diseases and to correct
the improper use of
antibiotics and other medicines in the management of these diseases;
- Sexually transmitted diseases and AIDS: the aim is to improve the quality
of the treatment of STD and AIDS and to reduce the associated
mortality;
- Oral health: this programme seeks to reduce the number of children in the
second grade of primary education requiring extractions
or fillings and the
incidence of gum disease among children entering secondary school by 30% of the
1995 levels by 2000.
Article 25. Periodic review of
placement
Province of Buenos Aires
376. Programmes
have been introduced for the supervision and monitoring of the administration of
institutions, both the public ones
and those operated by accredited NGOs. These
programmes guarantee the quality of the services and the protection of the
children
living in the institutions.
377. The province's Council for
Children and the Family has established a minimum standard of quarterly checks.
The nature of these
checks depends on the characteristics of the programme in
question; they are carried out by the central supervisory units through
the
Council's departmental offices. The methods used are designed individually for
each programme.
Province of Chaco
378. In 1997 surveys
were carried out under the "Porvenir" and "Volver a Casa" subprogrammes to
determine the total number of children
being cared for in this mode and their
length of stay in the institutions, to evaluate the feasibility of returning
them to their
homes, and to approach the management boards with a view to such
action in deserving cases. Periodic checks are made on the institutions
in
order to monitor and assess the work done with the children.
379. The
"Volver a Casa" subprogramme constantly monitors family situations by means of
documentary sources, key informants, and home
visits. The findings of the
checks are communicated to the Government Procurator for updating of the records
and consideration of
the possibility of releasing the children. The parents are
interviewed in cases holding out the possibility of release.
380. The
subprogrammes also promote the children's social reintegration under the
auspices of the institutions by improving the social
and environmental
conditions and developing their abilities.
Province of
Formosa
381. The province's Social Institutions Office has four homes
providing permanent care for children deprived of their family environment.
The
children are separated by sex and into 5-12 and 13-18 age groups. They are
placed in the homes on a temporary basis pending
the correction of the causes of
the need for placement. The homes provide protection and support and meet the
children's basic needs;
there is a limit of 30 children per institution. The
children attend infant, primary and secondary schools. The homes also have
a
team of professionals made up of psychologists, educational psychologists,
social workers and a woman doctor, who collaborate in
the treatment and
monitoring of the children and their families. If necessary, these
professionals have recourse to the specialist
services of the Central Hospital
and/or De la Madre and El Niño Hospitals in the town of
Formosa.
Article 26. Social security
382. As stated in
Argentina's second periodic report under the International Covenant on Economic,
Social and Cultural Rights (E/1990/6/Add.16),
Argentina's Single Social Security
System provides for old age, disability, survivors', industrial accident and
unemployment benefits
and family allowances. The social insurance subsystem is
funded primarily by contributions and charges (11 and 16% respectively)
and by
tax revenues (see annexes 32 to 34).
Year
|
Contributions and
charges
(%) |
Funds
(%) |
Others
(%) |
1993
|
63.7
|
29.2
|
7.1
|
1994
|
63.1
|
33.9
|
3.0
|
1995
|
62.4
|
35.9
|
1.7
|
Source: Ministry of Labour and Social
Security.
Social insurance: average pension scheme
assets
383. The average assets of the social insurance system
increased by 8.4% between 1993 and 1995. The figures for social security
expenditure
as a percentage of gross domestic product are given below on the
basis of the information prepared by the Ministry of Labour and
Social
Security.
Year
|
Percentage
|
1993
|
7.0
|
1994
|
7.0
|
1995
|
6.7
|
384. According to the Ministry, the share of social security expenditure
in total expenditure in the public sector was as follows.
In 1985, 17.1% of
this expenditure was destined for social security. As can be seen, a rise
occurred, owing mainly to two factors:
an increase in the number of
beneficiaries from 2,743,000 in December 1985 to 3,261,000 in July 1995; and the
recognition by the
State of the debts built up during the years when the
guidelines for indexation of incomes laid down in the applicable legislation
were not respected, as adjustment mechanisms were used which tied the total
payments to available resources.
385. There are population groups for
which participation in the social insurance system is difficult: marginal groups
with low incomes,
poor levels of education and little integration with the rest
of society because they live in extremely poor urban areas (slums)
or in rural
areas (small farmers, smallholders, labourers without permanent jobs,
etc.).
386. In order to provide assistance and redistribute income, the
State instituted what are known as discretionary or non-contributory
benefits.
These are old age or disability allowances designed to help the worst off and
covering persons in a situation of relative
poverty who have not made the
contributions needed to give rise to an ordinary pension.
387. Since 1991
another vulnerable group has also benefited from protection - mothers with seven
or more children. It should be noted
that unmet demand for this type of
allowance is substantial and there is every reason to think that the number of
cases handled will
continue to rise in the future (see annex 35, Public
expenditure on social security as a percentage of GDP; annex 36, Share of social
security expenditure in total public expenditure; annex 37, Share of public
social expenditure in total public expenditure; and annex
38, Public social
expenditure as a percentage of GDP).
Non-contributory pensions and allowances: number
paid
(figures for December of each year)
Year
|
Old age and disability pensions
|
Allowances for mothers with seven or more
children
|
1993
1994
|
99,377
112,785
|
13,879
24,535
|
Source: National Social Security
Administration.
388. Women enjoy the same welfare treatment under the law
as men, although ordinary pensions are payable to women five years earlier,
at
age 60 instead of age 65.
Non-contributory pensions and allowances: total
annual
disbursements (pesos) and population totals
Total population
|
32,615,528
|
Men
|
15,937,980
|
Women
|
16,677,548
|
Total population aged over 60/65
|
5,410,807
|
Women aged over 60
|
4,198,148
|
Men aged over 65
|
1,212,659
|
Source: Data from the 1990 population census supplied by
INDEC.
389. The total of 3,261,000 persons covered by the national social
insurance system and the estimated 600,000 covered by the provincial
social
insurance systems produce a total number of beneficiaries of 3,861,000 - 71.4%
of the population of the entire country aged
over 60/65 covered by the
system.
390. Some of the work being done on issues within the competence
of the Ministry's Social Security Secretariat is concerned with the
drafting of
bills to ensure better coverage of the sectors involved,
including:
Special social insurance schemes
391. Article
157 of Act No. 24.241 on the Integrated Pensions System, which has been in force
since October 1993, authorizes the Executive
to propose a list of occupations
meriting special legislative treatment because they involve risks for workers or
premature exhaustion
of their capacity to work or because they constitute
special situations.
392. An analysis was made of the current special
schemes, and a list was prepared of occupations which should continue to enjoy
special
social insurance treatment in view of their nature and the circumstances
in which they are pursued. Particular importance is attached
to heavy labour,
work performed in special conditions of isolation from the workers' families or
society, and work involving specially
arduous, toxic, hazardous or unhealthy
conditions. Attention is drawn in particular to work in mining, slaughtering
and butchering
of animals, oil and gas exploration, steelmaking, foundry work
and forging, and waste collection in the Antarctic or the South Atlantic
Islands, etc.
Blind and disabled persons
393. These persons
also receive special treatment because of their special circumstances, in
acknowledgement of the fact that they
have to make a greater effort to perform
certain tasks than the able-bodied. Consequently, an effort is made to
compensate them
by modifying the age requirements and number of years of service
needed to receive social insurance benefits.
Domestic servants and
rural workers
394. In order to extend the protection afforded by the
social insurance system to a larger number of persons, an effort is being made
to analyze the specific characteristics of certain groups of workers who, though
referred to in the legislation, are for the most
part not in fact included in
the social insurance system as contributors. This applies to domestic workers
or domestic servants
- 98% of whom are women - and rural
workers.
395. They generally have low incomes and very little job
stability, so that it is no simple matter to devise appropriate machinery
to
encourage them to make regular contributions in order to enjoy the future
benefits of social security.
396. Act No. 24,463 was adopted in April
1996; in chapter I it introduced inter alia amendments to the social
security legislation. The following changes were made:
(i) National public social insurance schemes provide redistributive benefits
in accordance with the solidarity principle;
(ii) The State guarantees the award and payment of benefits up to the amount
of the budget appropriations expressly earmarked for
this purpose by the Budget
Act. The annual appropriations for funding the public welfare system may not be
lower than the appropriations
under the previous year's budget;
(iii) The Budget Act determines the minimum and maximum levels of benefits
payable under the public social insurance system, and
no beneficiary may receive
benefits in excess of the legally established maximum;
(iv) Benefits are indexed at a rate determined annually in the Budget Act in
the light of the calculation of the resources available.
They may be
distributed in a differentiated manner in order to raise the minimum levels of
benefit;
(v) Persons in receipt of benefits may resume paid work in either an
employed or a self-employed capacity.
397. Chapter II of the Act provides
for reform of the legal aspects of social security. This reform regulates legal
challenges to
action taken by the National Social Security
Administration:
(a) The Administration's decisions can be challenged in
the federal administrative courts in Buenos Aires and in the provincial courts.
The Administration is the defendant and the courts are authorized to hear such
cases without the need for an application to the
court in whose jurisdiction the
head office of the Administration is located;
(b) The Administration may
cite in its defence insufficiency of funds under the distribution arrangements
to cover the additional
expenditure which acceptance of the claim would
entail;
(c) The National Social Security Court of Appeal established by
Act No. 23.473 becomes the Federal Social Security Court. It hears
appeals
against judgements of the courts mentioned above, as well as dealing with other
matters;
(d) Final judgements of the Federal Court are subject to appeal
before the Supreme Court by ordinary administrative remedy, and the
decisions of
the Supreme Court are binding on the lower courts;
(e) Coercive
judgements against the Administration must be enforced within 90 days of their
notification, up to the point where the
budgetary resources allocated for that
purpose for the fiscal year in which that time limit expires are exhausted.
Once these resources
are exhausted, enforcement is suspended until the beginning
of the fiscal year for which fresh budgetary resources to fund enforcement
of
court decisions are approved.
398. See the tables in the annexes: (1)
Beneficiaries disaggregated by sex; (2) Beneficiaries disaggregated by
nationality; and (3)
Beneficiaries disaggregated by age group.
Article 27. Standard of living adequate for physical, mental, spiritual, moral and social development
The right to adequate
maintenance
399. The State has introduced a number of programmes to
improve the food supply and diet of the most disadvantaged population groups.
The following programmes are in operation:
1. Community social
policies (PROSOCO)
Lead agencies: Secretariat for Social Development
and provincial governments;
Executing agencies: provincial social
welfare ministries, municipalities and NGOs;
Aims: to improve the quality of life throughout Argentina for population
groups with unsatisfied basic needs;
Goods and/or services provided: food supplements in community canteens for
children. Other non-food social benefits;
Target population: poor
children aged two to five;
Location: the whole country;
Information in the provinces: Secretariats for Social Development and Human
Development, and provincial ministries of health and
welfare.
2. Food
and nutrition programme for children (PRANI)
Lead agency:
Secretariat for Social Development;
Executing agencies:
Under-Secretariat for Social Policies, PRANI executing unit;
Aims: to improve living conditions and access to suitable and sufficient
food for children from disadvantaged homes by providing
food supplements and
support for basic education. To analyze and reorganize the system of school and
children's canteens;
Goods and/or services provided: equipment, infrastructure, technical
assistance and training for school and children's canteen programmes.
PRANI
diet supplement (a monthly food parcel containing nine foods);
Target population: children aged two to 14 suffering from nutritional
deficiency;
Location: the whole country, with the exception of Buenos Aires province and
the Federal Capital;
Information in the provinces: Secretariats for Social Development and Human
Development, provincial ministries of health and welfare
and the provincial
coordination and liaison unit.
3. Vegetable garden programmes
(PROHUERTA)
Lead agencies: Secretariat for Social Development, Secretariat for
Agriculture, Fisheries and Food;
Executing agency: National Institute of
Agricultural Technology (INTA);
Aims: To encourage grass-roots participation in the production of food. To
improve the quality of the diet. To supplement the food
supply by means of
own-production. To increase overall expenditure on food. To encourage
small-scale production alternatives.
To develop appropriate technologies for
food production;
Goods and/or services provided: technical assistance, training and provision
of key inputs for community, school and family vegetable
gardens;
Target population: the rural and urban population with unsatisfied basic
needs;
Location: the whole country;
Information in the
provinces: INTA agencies.
4. Nutritional subprogramme for mothers and children
Lead agencies: Ministry of Health and Social Welfare. Office for Maternal
and Child Health;
Executing agencies: provincial ministries of
health;
Aims: to reduce infant mortality caused by undernourishment of mother and
child;
Goods and/or services provided: ordinary and fortified powdered milk;
promotion of breastfeeding; food education; monitoring of the
nutrition status
of women and children;
Target population: pregnant women, and children aged from birth to two years
who are socially or biologically at risk;
Location: the whole
country;
Information in the provinces: hospitals and health
centres.
5. Social nutritional programme (PROSONU)
Lead
agencies: Secretariat for Social Development. Provincial
governments;
Executing agencies: provincial ministries of social
welfare, municipalities and NGOs;
Aims: to improve the nutritional
status of the target population;
Goods and/or services provided: food
supplements;
Target population: children aged six to 14 with unsatisfied basic needs, in
school canteens. Children aged two to five with unsatisfied
basic needs, in
children's canteens;
Location: the whole country;
Information in the provinces: Secretariats for Social Welfare and Human
Development and provincial ministries of health and
welfare.
6. Nutrition programme for mothers and children
(PROMIN)
Lead agencies: PROMIN coordination unit at the national level and provincial
and municipal executing units;
Target population: women of childbearing age and children aged from birth to
five years suffering from structural poverty;
Goods and/or services provided: extension, rebuilding and equipment of
existing health centres, children's canteens and kindergartens;
modification of
health, early-learning and school-canteen models by means of comprehensive
technical assistance, training and mass
communication measures; provision of
medicines and foods; national nutrition and health survey; impact assessment
studies; social
auditing, etc.;
Location: the whole
country.
400. On 20 July 1992 the Executive introduced under Decree No.
1269/92 (see annex) a programme of substantive and promotional health
policies
and the National Plan of Action for Mothers and Children.
401. Since the
end of 1993 infrastructure and equipment works have been carried out in 255
health centres and nine hospital obstetrics
and neonatology units, which are
transforming the model of primary health care for the target population under a
programme covering
more than 100,000 pregnant women and under-fives; the
programme provides additional benefits such as food supplements for person
diagnosed as malnourished, a milk ration, iron supplements, family
food-supplement baskets, etc.
402. Infrastructure and equipment works
have also been carried out in 262 day nurseries, canteens and kindergartens
which, now transformed
into child development centres, are making a contribution
to an educational process designed to develop the child's personality,
aptitudes
and mental and physical abilities to the fullest possible
extent.
403. In-service training was given to 6,700 professionals,
technicians, administrators and auxiliaries working in the health and child
development facilities mentioned above.
404. Mass communication and
publicity campaigns were carried out to inform the community about health care
and improvement, nutrition
and child development.
Province of Chubut
Food and nutrition programme for
children (PRANI)
405. PRANI is a national programme which the
province is carrying out under a participation agreement (Provincial Act No.
4.195).
Priority is being given among the proposed activities to the analysis
and reformulation of the school and children's canteens programme,
with a view
to making optimum us of the earmarked funds allocated by the social nutrition
programme (PROSONU), under joint participation
arrangements, which the province
uses for the operation of the canteens.
406. In the context of
reformulation of this programme and of joint planning with the province, the
national programme is funding
investment projects on infrastructure, equipment,
training and improved diet.
407. The programme includes a "PRANI
supplement" subprogramme consisting of the supply of a food basket every month
for children in
the 2-5 age group attending the children's
canteens.
408. The province has 22,285 children with unsatisfied basic
needs in the 0-6 age group, according to the 1994 figures of the National
Office
for Mothers and Children.
409. PRANI has assigned this province a total
quota of 3,500 food supplements, in addition to 1,100 delivered in the vicinity
of Comodoro
Rivadavia in direct implementation of the national programme in that
town.
410. The localities in which the food supplement programme was to
be implemented were determined by the national programme, but the
failure to
increase its quota has made it difficult for the province to cover other
localities.
411. However, the PRANI RURAL programme submitted by the
province was accepted by the national programme; at present it has a total
coverage of 1,000 food supplements in all localities lacking children's canteens
(see annex).
Projects submitted and executed
1. UCEP
equipment project;
2. Training project for the personnel who carried out the survey for the
analysis and reorganization of the school and children's
canteens;
3. Diet supplement project: food supplements for high-risk families in the
vicinity of Puerto Madryn;
4. Infrastructure project for the construction of a child care centre for
100 children in the vicinity of Comodoro Rivadavia;
5. Equipment project
for 14 community canteens in the vicinity of Trelew.
Projects in
execution
1. Diet supplement project for 63 children attending the Tecka community
canteen;
2. Diet supplement project for 33 children attending the Bet-Ei de
Río Mayo canteen;
3. Grass-roots outreach project;
4. Training project on child development, nutrition and organization of
local executing units: indirect beneficiaries;
5. Diet supplement project for 130 children attending the school canteen of
school No. 68 (Gobernador Costa) during the holidays;
6. Equipment
project for school No. 51 in Río Pico.
Projects submitted in
the hope of budgetary support
1. Child care centre for 100 beneficiaries in Absalo district, Comodoro
Rivadavia;
2. Rawson child care centre for 100 beneficiaries. Christian and Missionary
Movement;
3. Diet supplement project for the canteen of school No. 129 (Dos Lagunas in
Epulef village). Seventy beneficiaries;
4. Diet supplement project for 100 children attending the Trevelín
community canteen;
5. Diet supplement project for 120 children attending the Rawson community
canteens.
PROSONU school and children's canteens
subprogramme
General aim
412. To improve the nutrition
of children of school age, mainly children from poor families, reaching the
families by means of promotional
measures for a better quality of
life.
Specific aims
Nutritional:
To supplement
children's home diet;
To encourage the acquisition of new eating
habits;
To contribute to children's normal mental and physical
development.
School and educational:
To improve performances
at school;
To reduce the drop-out, absenteeism and failure
rates;
To incorporate in curricula items connected with food and
nutrition.
Social:
To provide training and counselling for families for the acquisition of
appropriate eating habits as a means of preventing malnutrition;
To promote programmes on alternative sources of income and to achieve
multiplier effects from school to home.
Target population
The programme is aimed at all children in the 5-14 age group attending
school and belonging to families with unsatisfied basic
needs.
Selection criteria
The criteria vary from area to area according to the characteristics of the
population:
In rural areas, indigenous communities and frontier areas there is no
selection because almost all the children lack an adequate
diet; this situation
is aggravated by other factors such as geographical remoteness and the high cost
of food;
In urban and suburban areas the health authorities check the children's
nutrition, growth and development to determine the programme's
participants.
Planned coverage
1,646 full diet
supplements for children in boarding establishments;
11,400 daily
lunches for children in full-time attendance at school;
10,000 full
breakfasts;
3,473 simple breakfasts for children in part-time
attendance.
Mode of execution
The programme operates for
the 10 months of the school year.
Types of assistance:
All
meals in boarding establishments;
Full lunches: in full-time schools having had an earlier breakfast
supplement scheme;
Simple breakfast: in morning-only schools having had an earlier breakfast
or snack scheme.
Nutritional targets
Full supplement: To provide a total of approximately 2,320 calories and a
protein intake of 75 grams a day per ration;
Percentage
coverage:
Carbohydrates - 60%;
Proteins -
14.5%;
Fats - 25.5%.
Full lunch:
Each lunch to provide a total of about 740 calories and a protein intake
of 28 grams (62% of the recommended amount);
Percentage
coverage:
Carbohydrates - 59.5%;
Proteins -
15.2%;
Fats - 25.3%.
Full breakfast:
Each breakfast
to provide a total of approximately 375 calories;
Percentage
coverage:
Carbohydrates - 54.3%;
Proteins -
8.5%;
Fats - 37.2%.
Simple breakfast:
To provide a
total of about 348 calories per meal.
Right to decent
housing
413. A number of national programmes have been implemented
under the auspices of the Secretariat for Social Development and the
Under-Secretariat
for Housing, with a view to delivering the right to decent
housing for as many people as possible:
CRC/C/70/Add.10
page 82
Housing sector programmes
|
|||||||
Programme
|
Lead agency
|
Implementing agency
|
Aims
|
Goods and/or services provided
|
Target population
|
Geographical location
|
Sources of information in the provinces
|
National Housing Fund
|
Secretariat for Social Development; Housing Unit
|
Provincial housing agencies
|
To reduce the housing deficit; to improve housing conditions
|
House building, extension and repair; equipment and infrastructure
|
Families with insufficient resources to buy a home on the housing
market
|
Countrywide
|
Provincial housing agencies, provincial housing boards and committees
|
Land title programme
|
Secretariat for Social Development
|
Executing units of provincial housing agencies or ad hoc
organizations
|
Transfer of public Stateowned land occupied by settlements, and
purchase of land in order to relocate families
|
Identification of informal settlements and formalization of ownership by
transfer of title to physical persons
|
Groups in informal settlements
|
Buenos Aires, Chaco, San Juan, Santa Fé and
Tucumán
|
|
Housing Unit's housing programme
|
Secretariat for Social Development
|
Housing Unit
|
To help develop and improve living conditions, housing, basic social
infrastructure and land access of households with basic unmet
needs and
vulnerable groups in situations of emergency, risk or marginalization
|
Access to basic housing; supplementary housing; improvement of living
conditions for vulnerable groups; basic social infrastructure
|
Households with basic unmet needs and vulnerable groups
|
Provinces in the northwestern and north eastern regions
|
Municipalities, NGOs, dioceses, universities, provincial secretariats for
social development
|
Neighbourhood improvement
|
Secretariat for Social Development
|
International financing unit
|
To improve living conditions for the urban population with basic unmet
needs; to facilitate access to basic mains services with social
monitoring to
ensure the programme's sustainability and replicability
|
Strengthening of institutional structures: technical assistance and
training; mains connections, including sewerage, inside the home;
environmental
monitoring; legal monitoring; social assistance
|
Urban population with unmet basic needs in areas with 20,000 inhabitants or
more
|
Areas throughout the country with 20,000 inhabitants or more
|
|
Flood Victims' Programme/ house repair subprogramme
|
Ministry of the Interior
|
Provincial governments
|
Reconstruction of areas affected by the 1992 flooding
|
Building and repair of dwellings affected by flooding
|
Families with basic unmet needs affected by the 1992 flooding
|
Buenos Aires, Chaco, Corrientes, Formosa, Misiones and Santa
Fé
|
Provincial emergency coordination sections, housing agencies and
municipalities
|
414. As regards measures to facilitate home ownership, the State
has introduced through the National Mortgage Bank a programme to
provide
mortgage loans for house purchase or repair, with a maximum term of 12 years and
annual interest of 11%. In order to obtain
such loans, personal application
must be made to the National Mortgage Bank or one of the financial institutions
which make loans
of this kind under agreements with the Bank. This measure will
make it possible for people to buy a home for an amount similar to
the cost of
renting. The ample supply of mortgage loans is an indication that the
advantages of this method of home purchase are
stimulating
demand.
415. At the same time, the National Housing Fund (FONAVI)
continues to operate, as can be seen from the table. The Under-Secretariat
for
Social Development and the National Mortgage Bank have obtained US$ 1 billion in
financing from international credit organizations
for house-building under the
auspices of the Fund.
Province of Chubut
The
Provincial Housing and Urban Development Institute
416. As part of
the overall restructuring of the provincial State and the reorganization of its
relations with civil society, Chubut
initiated in 1992 a number of comprehensive
reforms driven by the idea of establishing a new management model for the
production
of social housing based on the principles of:
Regulatory
centralization and operational decentralization;
The provincial State as
promoter and coordinator of the social sectors;
A high degree of
participation by civil society;
Improvement of the returns on
investments.
417. The housing situation was so complicated and involved
so many different sectors that it was necessary to diversify the types
of
response (from the standpoints of construction, management and/or funding) and
thus to create a menu of solutions to housing problems.
The province's policy
was focused on expansion of the supply to include housing and infrastructure
developments and step-by-step
housing, and intermediary and lending agencies
were created for the purchase, extension and repair of houses. The following
were
the main results of this more flexible approach:
(i) Optimization
of the use of resources;
(ii) Expansion of the housing supply;
(iii) Transfer to intermediaries of some of the transactions needed for
housing construction.
The province's lending
programme
418. As part of this housing policy, over the past two
years the province's Housing and Urban Development Institute has been operating
a programme of individual loans to provide an innovative response for population
groups which had in the past been excluded from
the formal financial system as
borrowers, offering them the possibility of choosing from among a variety of
modes (purchase/sale/extension).
This innovation proved a big challenge for the
Housing Institute, for it had to adapt part of its operational structure while
at
the same time establishing a regulatory framework for implementation of the
new arrangement.
419. There are currently three loan
possibilities:
Individual or joint loans for the purchase, construction, completion,
extension or repair of individual housing units in the non-luxury
category.
This option does not cover financing for the purchase of FONAVI housing;
Loans for rural areas for small farmers for the building of new houses or
the construction of mains infrastructure within a property.
The infrastructure
works include roads for vehicular access, water and electricity supply, and
additional works for connection to
mains sewerage and gas supply.
Loans for poor families. This option is for poor families who own their own
land and wish to build, complete, extend or repair their
homes, or who do not
own land but have been selected by the township where they
live.
Province of Mendoza
(a) Programmes for vulnerable groups designed to increase the
opportunities, possibilities and potential of groups whose vulnerability
is due
to biological, psychological or social conditions: children, adolescents, young
people, the elderly, the disabled, and women;
(b) Programmes of social compensation and housing improvements designed to
meet the immediate needs of low-income families and to
promote a suitable
physical environment for the psychological and social development of individuals
and families. The programmes
include food aid, jobs under temporary and
emergency projects, and social housing;
(c) Capacity-building programmes designed to awaken and strengthen the
whole potential of individuals, groups and communities in
terms of their social,
organizational, sports, employment and production capacities.
420. In
1997 the Under-Secretariat for Social Development was allocated a total of
124,973,000 pesos (from provincial, national and
municipal sources), a
significantly higher sum than in previous years which provided an opportunity
and a boost for Mendoza's social
policies with respect to the need to guarantee
the rights of the child.
Article 28. Education
421. The
Constitution and legislation of the Argentine State guarantee the provision of
compulsory and free education throughout the education
system.
422. Article 5 of the Constitution states that the provinces are
responsible for "primary education", and article 14 establishes, among other
rights, the right to "teach
and learn". While there are other references to
education in the Constitution, the main one is found in article 15, paragraph
19, on the powers of the Congress, which include the power:
"To enact organizational and basic laws governing education which will
consolidate national unity while respecting provincial and
local
characteristics, fulfil the non-transferable responsibility of the State, ensure
participation by the family and society, promote
democratic values and equal
opportunities and possibilities without any discrimination whatsoever, and
foster the principles of free
and uniform public education and the independence
and self-government of the national universities".
423. Several article
of the Constitution state explicitly that, through its provincial jurisdictions
and the municipality of Buenos Aires, the national State must provide
free
compulsory education for all the country's inhabitants without any
discrimination whatsoever.
424. Where specific legislation is concerned,
Act No. 1.420 of 1884, the forerunner of the Federal Education Act (No. 24.195
of 1993),
made school attendance compulsory for all children from ages six to 14
and provided for free and progressive secular education at
the primary level
(seven grades).
425. Article 10 of the Federal Education Act extends the
period of compulsory school attendance to 10 years (one year in a
kindergarten/reception class at age five, plus nine
years of basic general
education), while article 39 stipulates that education shall be free:
"The national State, the provinces and the municipality of Buenos Aires
shall guarantee, by allocating funds to their respective
education budgets, the
principle of free education in publicly funded education services at all levels
and under all special systems".
Secondary
education
426. Secondary education, including technical and
vocational education, is available without any kind of discrimination or
limitation
to anyone who completes the basic cycle and wishes to continue his
studies, whether general or technical in nature.
427. In 1988 there were
1,937,324 pupils enrolled in secondary education, a figure which had risen
to 2,238,091 by 1994, i.e. a growth
rate of 15.5% over that period. In
1988 there were 6,125 educational establishments catering for the total
enrolment; by 1994 the
figure stood at 7,239, a growth rate of
18.2%.
428. The right to free education is clearly established in article
39, paragraph 1, of the Federal Education Act:
"The State, the provinces and the municipality of Buenos Aires shall
establish a system of grants for economically deprived pupils
of either sex
enrolled in courses at levels higher than compulsory basic general education;
these grants shall be awarded on the
basis of academic
achievement".
Access to higher education
429. Title II,
article 5, of the Higher Education Act (No. 24.521 dated this year and recently
adopted by the Congress) states:
"The higher education system comprises non-university higher education
establishments providing teacher training, training in the
humanities and the
social sciences and technical and vocational or artistic training, and of
institutions providing a university
education, including universities and
university institutes".
430. Title I, article 2, contains the following
provisions on access to higher education:
"The State may not delegate its responsibility to provide public higher education services and it shall recognize and guarantee the right to a higher education of all persons who wish to receive one and who have the required training and ability".
"The only requirements for registration as a student in a higher education
institution are completion of the secondary or the multi-modal
cycle of
education and satisfaction of the admission regulations of the institution in
question. Article 7 of the Act makes an exception
for persons aged over 25, who
are exempted from the requirement of completing the secondary or multi-modal
cycle if they can pass
tests demonstrating that they "have training and/or work
experience qualifying them for the courses which they wish to take as well
as
the ability and knowledge to pursue such studies
successfully".
431. Total enrolment in public and private non-university
higher education establishments was 230,686 in 1988 and 310,997 in 1994,
a
growth rate of 34.8% over the period. The total enrolment in the entire
university system was 652,997 and 727,362 respectively
in those two years, a
growth rate of 11.4%.
432. There was a considerable increase in the
number of university-level establishments, from 26 in 1988 to 79 in 1994, a
growth rate
of 204%.
433. Non-university higher education had 1,099
establishments in 1988 and 1,674 in 1994, a growth rate of 52.3%.
434. In
1995 the annual expenditure per university student was 1,789.46 pesos.
Budget per student per university. Estimated data for 1995 (pesos)
University, 1994/1995 census
|
No. of students
|
Budget
|
Expenditure per student
|
---|---|---|---|
Buenos Aires
|
173 345
|
271 122 642
|
1 564.06
|
Catamarca
|
3 251
|
18 601 865
|
5 721.89
|
Centro
|
4 860
|
22 588 597
|
4 647.86
|
Comahue
|
8 808
|
36 372 476
|
4 129.48
|
Córdoba
|
69 029
|
109 332 654
|
1 583.87
|
Cuyo
|
14 740
|
69 121 591
|
4 689.39
|
Entre Ríos
|
5 690
|
20 341 088
|
3 574.88
|
Formosa
|
1 429
|
6 822 051
|
4 774.00
|
General San Martín
|
2 979
|
3 501 474
|
1 175.39
|
General Sarmiento
|
No figures available
|
2 565 262
|
|
Jujuy
|
235
|
14 421 689
|
61 368.89
|
La Matanza
|
8 001
|
13 029 143
|
1 628.44
|
La Pampa
|
3 171
|
17 263 631
|
5 444.2
|
La Plata
|
47 845
|
85 754 277
|
1 792.34
|
La Patagonia
|
4 266
|
30 163 533
|
7 070.68
|
La Rioja
|
5 332
|
9 886 049
|
1 854.10
|
Litoral
|
13 829
|
38 476 437
|
2 782.30
|
Lomas de Zamora
|
18 508
|
18 725 047
|
1 011.73
|
Luján
|
6 601
|
16 593 327
|
2 513.76
|
Mar del Plata
|
17 612
|
35 233 364
|
2 000.53
|
Misiones
|
6 112
|
27 204 282
|
4 450.96
|
Nordeste
|
32 144
|
44 508 243
|
1 384.65
|
Quilmes
|
1 408
|
10 559 679
|
7 499.77
|
Río Cuarto
|
6 880
|
29 209 734
|
4 245.60
|
Rosario
|
41 990
|
77 585 234
|
1 847.71
|
Salta
|
8 457
|
26 797 233
|
3 168.65
|
San Juan
|
7 545
|
58 385 770
|
7 738.34
|
San Luis
|
5 926
|
33 678 401
|
5 683.16
|
Santiago del Estero
|
2 251
|
15 404 496
|
6 846.40
|
Sur
|
6 473
|
33 151 543
|
5 121.51
|
Tecnológica Nacional
|
55 748
|
86 418 250
|
1 550.16
|
Tucumán
|
31 331
|
90 243 978
|
2 880.34
|
Total
|
615 796
|
1 101 940 398
|
1 789.46
|
Source: Census of Students in National Universities and Secretariat for University Policy,
Ministry of Culture and Education.
Efforts to establish a
basic education system
435. Various measures have been taken in
recent years to provide an education for those who have not yet received primary
education
or have not completed the full cycle. They include the 1986-1989
National Literacy Plan and the 1990-1992 Federal Literacy and Basic
Education
Programme for Adults.
436. Since 1994, the nationwide project to enable
adults to complete the primary level of education by distance learning under the
Social Plan for Education has been operating in 14 of Argentina's
24 provincial jurisdictions. Participants use common course materials,
except for one region which has its own module. The project is intended for
persons aged over 18 who know to read and write. It
operates along
decentralized lines with nationwide coordination, follow-up and
assessment.
437. As can be seen from the table below [missing], the
percentage of persons who have never attended school is relatively low. There
is, nevertheless, a vital need to cater for the large number of people who did
not complete primary education. The education services
provide a broad coverage
extending to virtually the whole of the country, except for sparsely populated
rural areas. (Source: INDEC.)
438. The measures taken by the
education authorities to transform the system since the adoption of the Federal
Education Act are designed to deal with the main problems encountered in the
past in order to secure the full realization of the right to study
in conditions
of equality and with quality education. The following are the main problems
being tackled:
1. Problems internal to the education
system
(a) The system's segmentation, which is responsible for differences in the
quantity and quality of the services offered;
(b) The system's centralization and bureaucratic nature, despite efforts to
decentralize which have assigned management responsibility
to the country's
provincial jurisdictions;
(c) Curricula which are unsuited to the cultural realities of society and
whose scientific, epistemological and pedagogical basis
is insufficient to meet
the new challenges;
(d) The vertical structure of education establishments, which place greater
emphasis on order and discipline than on providing opportunities
for
participation in the formulation of learning projects;
(e) Teacher training and qualifications, which are of a low academic
standard, unrelated to classroom practice and totally deficient
as an
institutional project;
(f) Teaching methods, with their tendency towards rote learning and a
formalistic approach;
(g) The inadequate infrastructure of municipal school buildings and the
poor quality of equipment and teaching materials;
(h) Teachers' gradual loss of professional status;
(i) The historical insufficiency of the resources allocated to the
education budget.
2. Problems external to the education
system
(a) Argentina's vast area, with its sparsely populated regions and
inadequate communications infrastructure;
(b) The social and economic circumstances of families: structural
poverty;
(c) Insufficient family and community commitment to schools and to
children's education;
(d) The tendency for families to migrate in search of work, taking their
children with them, with the consequent absenteeism, repeated
years and
drop-outs;
(e) The need for children and young people to work.
439. In the
light of some of the problems described, the Federal Education Agreement signed
by all the provincial jurisdictions set
a number of policy goals for the period
1995-1999.
440. In addition, the various measures described below were
implemented in order to improve standards and ensure equality in
education.
A. New schools for the twenty-first century
441. This programme was begun in 905 schools at all levels on the basis
of the following criteria:
Quality of education services;
School
democracy;
School efficiency;
Active learning;
Individualized attention for pupils as a means of
ensuring equality;
Specialized professional staff;
Enhanced
institutional autonomy for schools.
442. It is hoped that the
implementation of these policies will bring about the following
changes:
In the classroom
A variety of proposals for organizing group work at various levels;
Reorganization of timetables and use of space;
Use of different sources of information;
Use of handbooks to allow pupils to work independently;
Assessment of each process and the results.
B. Federal network for in-service teacher training
443. The purpose of this programme is to provide a framework to
facilitate intra- and inter-provincial links for developing a federal
network
for in-service teacher training in respect of:
Training for the
diploma;
In-service teacher training;
Training of graduate
teachers for new professional tasks;
Training for graduates who are not
teachers.
444. This network consists of 24 provincial focal points
designated by each local government and a national focal point in the Ministry
of Culture and Education.
445. In this context the network provides
training for the education system's 650,000 teachers. The subjects of the
training relate
to the common core content and to other subjects relevant to the
system's new structure and management. The criteria of the network's
structure
are that quality services must be provided with easy accessibility and free of
charge.
446. The network conducted the following activities in
1994:
756 refresher courses for teachers nationwide;
In-school
training courses for 48,770 teachers;
Training for 286,770 teachers
through a multiplier effect in each province;
Training for 50,000
teachers by distance learning.
Production by the Ministry in fascicle form of 8,150,000 copies of texts on
biology, physics, chemistry, mathematics, history, language
and geography and
their distribution as a training support to 47,000 schools throughout the
country.
447. Another service available is the electronic teacher
training system, which links 1,050 teacher training institutes through an
electronic network providing information on training opportunities, materials
and documentation, as well as access to databases in
Latin America and
throughout the world on the Internet.
448. The Ministry has provided the
following basic equipment: AT 486 personal computers with Super VGA monitors and
built-in modem/fax;
laser-quality ink-jet printers; television sets; video
recorders; video cameras; two hundred general and specialized works on teacher
training.
449. This equipment has made it possible to link all the
teacher training institutes to each other through the electronic system and
to
expand their libraries, as the works provided are the basic reference materials
for primary and secondary teacher training.
450. The aim is to ensure
that the necessary teacher training is generally available, with a view to the
gradual introduction and
implementation of the provisions of the Federal
Education Act.
C. Quality assessment programme
451. The national system for assessment of the quality of education
(SINEC) was established under the Act as a key tool for enabling
the Ministry to
secure quality and equality in the dissemination of knowledge in all parts of
the country.
452. SINEC comprises an annual assessment of the scholastic
achievements of pupils at all levels of the system, monitoring of the
relevance
of curricula to the needs of society and the industrial and academic sectors,
and monitoring of the quality of teacher
training.
453. Two nationwide
assessments of the scholastic achievements of pupils completing primary and
secondary education were carried out,
in 1993 and 1994. A third assessment was
carried out in 1995.
454. These sample assessments provided information
on the situation of education throughout the country. They will serve as a
basis
for methodological recommendations to be put to all teachers with a view
to improving classroom practice, improving and providing
guidance for teacher
training, and helping the provinces with the greatest difficulties.
First national assessment, 1993
Questionnaires were sent to 9,832 families, 1,056 head teachers, 1,097
teachers and 19,438 pupils.
(a) Submission of national and provincial
results (drafting and publication of the parliamentary report in November 1994
in accordance
with the Federal Education Act);
(b) Production of
booklets containing methodological recommendations for teaching language and
mathematics at the primary and secondary
levels (for distribution to schools
country-wide);
(c) Training for supervisors, head teachers and teachers
in the use of the results of the assessment, in the provinces requesting
such
training.
Second national assessment, 1994
86,668
|
|
Sections assessed
|
4,583
|
Provinces with a broader sample
|
24
|
Tests given
|
346,672 (language, maths, natural and social sciences)
|
Questionnaires were sent to 4,583 head teachers, 9,166 teachers and
86,668 pupils.
(a) Submission of national and provincial results (on
completion of processing);
(b) Production of booklets containing
methodological recommendations for teaching language and mathematics at the
primary and secondary
levels;
(c) Preparation of modules for the
training of supervisors and administrative and teaching staff in the use of the
results of the
assessment.
Adult education
455. Argentina
has literacy and primary education services catering for an estimated total of
180,000 adults.
456. In-school courses attract mainly adolescents
and elderly persons, with relatively little participation by the economically
active
population. A distance-learning project was therefore formulated to
target that group, particularly in urban and suburban areas;
the project is
helping workers, parents of children at the pre-school and primary levels, the
prison population, and housewives.
457. Surveys are being carried out as
part of the project to obtain more precise details of the target groups, in
order to formulate
projects better-suited to their needs.
Percentage
of the budget earmarked for education
458. Articles 60 and 61 of the
Federal Education Act provide for the gradual doubling of public investment in
the national education system, in steps of at least 20% a year beginning
with
the 1993 budget.
Year
|
Percentage
|
1991
|
12.3
|
1992
|
12.6
|
1993
|
12.8
|
1994
|
14.6
|
The school system
459. Argentina's education system is
defined in title III, chapter 1, articles 10-12, of the Federal Education Act.
Article 10 states:
"The structure of the education system, which shall be established
gradually and progressively, shall consist of:
(a) Three years of pre-school education in kindergartens for children aged
three to five, the last year of which shall be compulsory.
The provinces and
the municipality of Buenos Aires shall, where appropriate, establish nursery
schools for children aged under three
and provide support to enable community
institutions to provide nursery school services and assistance for families in
need of such
services;
(b) Basic general education, which shall be compulsory and last for nine
years from age six; it shall constitute a single educational
unit organized in
cycles in accordance with the provisions of article 15;
(c) Multi-modal education, following completion of basic general education,
provided by specialized institutions and lasting a minimum
of three
years;
(d) Higher, vocational and degree-level education following completion of
the multi-modal level; its duration will be fixed by the
university and
non-university institutions, as appropriate;
(e) Post-graduate
education".
460. To summarize, the new structure of the education system
looks like this:
Academic structure
(a) Pre-school education from ages three to five: designed to build on the
process of learning in the family and initiate reading
and
writing;
(b) Basic general education lasting nine years and divided
into three cycles:
(i) The first cycle. The main aims are to teach children to read and
write, to introduce them to mathematical concepts, and to
teach basic concepts
of an understanding of the world;
(ii) The second cycle. The purpose is to consolidate language and
mathematics. The conceptual frameworks of various cultural fields,
such as the
social and natural sciences, technology, the plastic arts, music and physical
education, are introduced gradually. This
body of knowledge helps pupils to
become personally and social self-sufficient;
(iii) The third cycle. This cycle provides educational opportunities
suited to the needs of pre-adolescent and adolescent children.
It further
develops and expands their knowledge of language, mathematics and the
scientific, technological and artistic disciplines.
It also fosters the
development of more complex individual and social behaviour in accordance with
the pupils' own development and
society's expectations;
(c) Multi-modal education, offering an attractive variety of activities
linked to the world of work and based on a general core
curriculum. It includes
a number of workshops and activities forming an initial link with the scientific
and production worlds.
It prepares pupils for higher education and, when taken
in conjunction with a technical/vocational course, may lead to a technical
qualification.
(d) Technical/vocational education, which teaches the necessary skills for
jobs in specific industrial sectors.
(e) Higher education (non-university, university and
post-graduate).
Equal access to the different levels of education and
measures to promote literacy
461. See annex: enrolment by level and
by sex.
Access to the different levels of
education
462. Earlier paragraphs of this report make reference to
factors internal and external to the education system as variables which
historically have created a variety of opportunities in terms of the quantity
and quality of the services offered.
463. The successive efforts of the
education authorities delivered universal access to the system, so that in
respect of access it
may be said that the right to literacy for all is
guaranteed de jure and de facto.
464. It is for this reason that,
without neglecting the needs in terms of coverage, the current efforts of the
education authorities
to change the system in compliance with the Federal
Education Act are focused on the improvement of the quality of instruction, but
always in accordance with the principle of equality, which posits
similar
academic achievements despite differences in income.
465. Accordingly,
the Social Plan for Education is implementing under the programme "Better
education for all" a project No. 4 on
the promotion of alternative proposals,
which gives priority to specific areas:
Indigenous communities
(bilingual education);
Children at risk of dropping out from the last
primary cycle and children who work;
Children with special
needs;
Young people and adults who did not complete primary
school;
Sparsely populated rural districts where the needs can be met by distance
learning.
466. The efforts to correct the problems in these areas involve
a strong element of equity and justice, because the measures have
to be tailored
to each individual situation. This is why the Social Plan for Education, as
part of its work on these problems in
1994 and 1995, encouraged the submission
of projects to tackle them, provided that such projects had been approved by the
provincial
education authorities.
467. Depending on budgetary resources,
the Ministry's support for such proposals takes the form of:
Funds for
purchase of teaching materials and equipment by the individual
institutions;
Supply of books to stock libraries;
Agreements with specialist instructors who have their own workshops and can
hire out their services for practical training;
Recruitment of professionals specializing in the particular educational
problems in these areas to carry out field work;
Funds for special
further-training courses for teachers.
468. One example of this type of
activity is the support given by the Social Plan in the shape of an investment
of about 250,000 pesos
for the construction in Chaco province of an indigenous
research and training centre, which will train indigenous classroom assistants
and nursery and primary teachers to work in schools attended by children of
different ethnic groups. There will be other activities,
including further
training for teachers and research on cultural, linguistic and educational
topics to back up the bilingual programme.
469. These activities are
covered by chapter 4 of the Constitution, which calls upon the National
Congress: (i) to recognize the ethnic and cultural pre-existence of indigenous
peoples in Argentina;
and (ii) to ensure respect for their identity and their
right to a bilingual and cross-cultural education.
Measures taken to
establish or guarantee equal access to all levels of
education
470. As stated in earlier paragraphs, the Education
Ministry is taking action under the Social Plan for Education to help low-income
and rural population groups, indigenous communities, children with physical or
mental disabilities, and other specific groups, in
order to ensure that they can
enrol and that they remain in the education system and to upgrade the teaching
dispensed by the schools
by giving priority to strategies to improve in-service
training and help to eliminate inequalities in education. The following targets
were achieved in 1993-1994 and 1995:
Targets
|
Achievements
|
---|---|
Elimination of "makeshift" schools
|
1,875 new schools
|
Construction of kindergartens
|
1,750 constructed
|
Construction of classrooms
|
997 constructed
|
School repairs
|
2,246 repaired
|
Textbooks, encyclopaedias and other reference works, children's
literature
|
3 million books distributed
|
Exercise books
|
7.5 million distributed
|
Computer equipment
|
5,600 computers supplied
|
Grants for teaching materials and equipment
|
4,800 schools
|
Further training for teachers of children with learning problems
|
50,000 teachers
|
Grants for innovative projects (incentives)
|
1,000 projects financed
|
These targets were achieved by means of the following
investments.
1993
1994
|
$Arg 62,450,000
$Arg 126,000,000
|
For 1995
Targets
|
Achievements
|
---|---|
School construction (classrooms, kindergartens, new buildings
|
1.2 million square metres
|
School repairs
|
1,000 schools repaired
|
Textbooks, encyclopaedias and other reference works, children's
literature
|
2.35 million books distributed
|
School supplies
|
for 1.5 million pupils
|
Teaching materials and equipment
|
for 8,000 schools
|
Further training
|
for 50,000 teachers
|
Grants for innovative projects
|
1,400 projects
|
Furniture for primary schools
|
9,000 items
|
These targets were achieved by means of the following investment:
1995
|
$Arg 99,396,519
|
Conditions for teaching staff at all
levels
471. Before the transfer of education departments to the
country's various provincial jurisdictions (Act No. 24.049 of 1992)
the material
conditions of teaching staff were governed by Act No. 14.473
of 1958, which had established the Teaching Staff Statute for the sector
when it was still under national jurisdiction. Provincial legislation was
supposed to be brought into line with the regime established
by that
Act.
472. The Statute covered the primary, secondary and non-university
levels, including the elements referred to in the recommendation
of 5 October
1966 of the Ad Hoc Intergovernmental Conference on the Situation of Teaching
Staff, organized by UNESCO.
473. University teachers were governed by the
statutes of their university, which were in keeping with specific legislation on
that
level.
474. Matters not addressed in the statutes were regulated
by a supplementary legal framework provided by national legislation on the
civil
service.
475. The statutory requirements are currently being amended as a
result of the adoption of a new Higher Education Act (No. 24.521
of
1995).
476. Following the transfer of education departments to the
provinces and the municipality of Buenos Aires, teachers are now covered
by
provincial legislation.
477. This legislation has the same general
structure as Act No. 14.473 and maintains most of the job benefits enjoyed by
teachers.
478. Articles 46 and 47 of the Federal Education Act (No.
24.195 of 1993) establish the basic schedule of teachers' rights and duties,
to
which the provinces have to adapt their own legislation. These articles
read:
"Article 46. Without prejudice to the labour rights recognized in
the general legislation in force and those contained in specific legislation,
all persons employed in State or private education shall be entitled:
(a) To exercise their profession on the basis of freedom of instruction in
accordance with the rules governing curricula and instruction
adopted by the
education authorities;
(b) To enter the system by a competitive examination which ensures their
suitability for the profession and their respect for teachers'
professional
obligations, and to advance in the profession on the basis of merit and job
performance;
(c) To receive fair remuneration for their work and
qualifications;
(d) To health care and prevention of health-related
illnesses;
(e) To exercise their profession in buildings where the health and safety
conditions meet the requirements of a proper quality of
life and to have the
necessary teaching materials and resources provided at their place of
work;
(f) To recognition of the services they provide and access to special
benefits when they work in schools in underprivileged or isolated
areas;
(g) To a social insurance scheme which allows them to move between
provinces in the exercise of their profession and recognizes
the contributions
paid and seniority earned in any of the provinces;
(h) To the right to
strike;
(i) To training and to in-service refresher courses and further training in
order to adapt them to any curriculum changes which
may be necessary;
Persons employed to teach in private schools must have qualifications
recognized by the local education authorities for the exercise
of their
profession; they shall then be entitled to the conditions of employment provided
for in the present article, except subparagraphs
(a) and (b)".
"Article 47. Persons employed in education have the following
duties:
(a) To obey the institutional rules of the educational community to which
they belong;
(b) To take part in a supportive manner in the activities of the
educational community;
(c) To respect the freedom and dignity of pupils as
persons;
(d) To take further training and refresher
courses.
Proportion of schools at all levels not established and
administered by the Government
479. In the light of the national
census of teachers and education establishments conducted in 1994 by the
Education Ministry, it
must be pointed out that a school may be operating one or
more levels of instruction at the same time. Each establishment will thus
have
as many education units as levels of instruction.
480. Accordingly, the
information given below covers total numbers of establishments by type of
education and total numbers of education
units by level. In both cases the
information is broken down by into State and private sectors.
Total number of establishments by type and sector
Total
|
Ordinary only
|
Ordinary and other
|
Other types*
|
No information
|
|
Whole country
State
Private
No information
|
38,330
30,235
7,767
328
|
32,698
25,301
7,214
183
|
1,139
937
145
7
|
4,249
3,828
370
51
|
244
119
38
87
|
* Establishments providing adult, artistic and/or special education
either exclusively or in combination (but not in combination
with ordinary
education).
Total education units by education level and sector
Total
|
Pre-school
|
Primary
|
Secondary
|
Higher (non-university)*
|
Others
|
No information
|
|
Whole country
State Private No info. |
48,538
36,977 11,174 387 |
12,720
8,826 3,801 93 |
25,448
21,661 3,612 175 |
7,239
4,386 2,802 51 |
1,674
956 708 10 |
1,382
1,120 247 15 |
75
28 4 43 |
* Courses with no equivalent at the primary or secondary levels offered
in special and adult education.
Education units by education level (1988 and 1994)
Level
|
1988
|
1994
|
Pre-school
Primary
Secondary
Higher (non-university)
University
Other
No information
Total
|
9,137
21,207
6,125
1,099
26
0
0
37,619
|
12,720
25,448
7,239
1,674
79
1,382
75
48,617
|
Source: National census of teachers and education establishments
1994 (provisional results), Office of the Federal Education Information
Network,
Secretariat for Education Programming and Evaluation, Ministry of Culture and
Education.
Difficulties for persons wishing to establish schools or
obtain access to them
481. The possibility of setting up a school not
administered by the Government is established in article 14 of the
Constitution: "All inhabitants of the Nation enjoy the following rights in
accordance with the laws governing their exercise: (...) to teach and
to
learn".
482. Furthermore, title V of the Federal Education Act, "On
privately administered schools, reads in part:
"Article 36. Privately administered education services shall be
subject to prior recognition and monitoring by the public education
authorities.
The following agents are entitled to provide such services: the Catholic
Church and other religious denominations registered in
the National Register of
Religions; societies, associations, foundations and enterprises having legal
personality; and private individuals.
Being part of the national education system and subject to its rules and
regulations, such agents shall have the following rights
and
obligations:
(a) Rights: to establish, organize and maintain schools; to appoint and
promote managerial, teaching, administrative and auxiliary
staff; to decide on
the use of school buildings; to draft syllabuses and curricula; to award
recognized certificates and diplomas;
and to take part in education
planning;
(b) Obligations: to comply with national and provincial education policies;
to offer education services which meet the community's
needs, as well as
offering any other type of service (recreational, cultural, assistance) on a
cooperative basis; and to provide
any necessary information for the Government's
monitoring of matters connected with teaching, accounting and
employment.
Article 37. The State's contribution to teachers' salaries in privately administered education establishments shall be based on objective criteria in accordance with the principle of redistributive justice in the context of social justice and shall take into account inter alia an
establishment's social function in its area of influence, the type of
establishment, and the fees charged.
Article 38. Teachers in recognized privately administered education
establishments shall be entitled to a minimum salary equal to that of teachers
in State-administered institutions; they must hold qualifications recognized by
the legislation in force in each province".
483. Lastly, it should be
pointed out that there is no obstacle to access to privately administered
schools. It is recalled that
article 37, cited above, provides for a
contribution by the State to the salaries of teachers in such schools; from the
financial
standpoint this facilitates enrolment.
484. See annex 66 for
statistics on the situation of education in
Argentina.
Discipline
485. The Federal Education Act sets
out principles compatible with the Convention.
486. Since the entry into
force of the Act and the Convention, it has been mandatory to amend any rules
relating to children which
are incompatible with these
instruments.
487. The Interior Ministry's Under-Secretariat for Human and
Social Rights produced a proposal to facilitate the adoption by education
establishments of certain basic standards which may make a useful contribution
to the discussion of the disciplinary arrangements
in each
establishment.
488. There have been several formal attempts to correct
situations in which rights were being infringed but such attempts proved
unsuccessful,
in most cases because the practices in question had become so
firmly rooted since the adoption in 1943 of the General Regulations
for
Secondary, Teacher Training and Special Education, which were based on a
philosophy of discipline in tune with the historical
and political context of
that time.
489. The necessary conclusion is that it is not enough to
change the regulations (which is often done) but that it is also necessary
to
build a new legitimacy based on objectives which help to consolidate democratic
life: full citizenship, effective exercise of
the fundamental rights, and
learning based on knowledge but also on the experience gained in the education
community by all its members.
In short, what is needed is to replace the
proposition of "keeping order" with the concept of "creating the conditions for
mutually
respectful co-existence".
490. Current disciplinary systems
regard school life and the individuals taking part in it from a restrictive and
punitive standpoint
and pursue "order" as an end in itself.
491. In
contrast, the systems which are being developed for introduction seek to
establish an ideal of life lived in common by accord
of the persons involved, in
an attempt to become the everyday and sincere expression of school life as a
dialogue among its members,
replacing mere deference to rules by processes of
situation analysis, listening to reasons and learning to give them, disagreeing
on the basis of rational arguments, and avoiding arguments based on
authority.
International assistance
492. The proposed
Education Reform and Investment Programme, with financing from the
Inter-American Development Bank, is designed
to help provincial governments
improve the quality of pre-school and basic general education and teacher
training. The Programme
covers the following areas: institutions, financing,
human resources, curriculum design and implementation, and infrastructure and
equipment. The cost is 550.2 million pesos over the period 1995-1999 for all
the provinces requesting assistance.
493. The Secondary Education
Decentralization Programme, with financing from the World Bank, is designed to
support secondary decentralization
by means of investments in
institution-building in provincial ministries and schools.
494. This
project's general objective is to help to improve the efficiency and quality of
secondary education services through a five-year
investment programme for
institution-building, improvement of the quality of education and upgrading of
municipal infrastructure.
Changes in national policies, laws and practices which adversely affect
the right established in this article
495. On the basis of the
explanations contained in the present report, it may be stated that there have
been no changes which adversely
affect the right established in this
article.
496. On the contrary, the provisions of the Constitution and the
Federal Education Act, which is the product of participation by organizations
and sectors representing the entire national community, and the strategic
guidelines set out in the Act are designed to encourage, on the basis of equity,
broader education coverage and improved quality
at all levels and for all
sectors of the population, especially the most
disadvantaged.
Province of Chubut
497. Chubut initiated
its own structural reform within the framework of the national reform of
education by introducing a third cycle
and coordinating it with the existing
system. The first step was the implementation of a pilot phase in the town of
Rawson in the
1997 school year so that any difficulties could be identified,
solutions tested in practice, and adjustments made to the initial
project.
498. For implementation purposes the province adopted Act No.
4.242, which empowered the provincial executive authorities to enact
the
necessary regulations for the start-up in Rawson, in a seventh grade, of the
experiment with a third cycle of basic general education.
The pilot project was
to end in 1999 on the completion of the whole cycle, consisting of the seventh,
eighth and ninth grades.
499. Since the introduction of the seventh grade
in the current school year, as an experiment leading to universal application,
is
moving ahead satisfactorily, now is the right time to extend it to the whole
province.
500. Under an agreement between the national Education Ministry
and the province of Chubut and pursuant to article 21 of Act No. 23.737,
a
remedial education unit for drugs control was established for Rawson and
Trelew.
501. The Act on the comprehensive protection of children and the
family devotes a separate chapter to education. It establishes the
right to
education as a means of securing children's comprehensive development, preparing
them for citizenship, and training them
for work. In this connection the
provincial State has an obligation to ensure:
- Free admission to a public school close to the child's usual place of
residence;
- Equality of conditions of admission, advancement and graduation;
- The right to be respected by the members of the education
community;
- The right to be informed about procedures and to take part in the
formulation of the rules governing school life;
- The right to be heard before decisions are taken on any measure or
punishment, which may be taken only in accordance with clear
and fair
procedures;
- The right to have one's performance and achievements assessed in
accordance with previously agreed rules and to be informed about
and to be
allowed to object to such assessments, with recourse to higher school
authorities if necessary;
- The right of recourse to higher educational or non-educational authorities
in connection with any measures or punishments that
are ordered;
- The right to form and participate in student organizations;
- Awareness of the rights in question.
502. The Act also stipulates
that parents and other legally responsible persons have a right and a duty to
familiarize themselves
with the education process and that they are empowered to
take part in decisions affecting education.
503. It further stipulates
that the provincial State must provide, in the education of children in formal
and informal systems, for
the consolidation of values based on respect for human
rights, cultural plurality, the diversity implied by disability or disadvantage,
the environment and natural resources, and social assets, with a view to
training children to live responsible lives.
504. The Act also provides
that respect shall be accorded in the education process to the cultural, ethnic,
artistic and historical
values of the social context of the children in
question, that they shall be guaranteed the freedom to create and the right of
access
to sources of culture with a view to the maximum possible development of
individual potential, and that curriculum policy shall be
adapted to the
children's cultural needs in order to facilitate the greatest possible social
integration within a framework of tolerance
of diversity.
Article 29.
Education to develop respect for human rights
505. The topic of human
rights was incorporated in 1995 in the common core curriculum of the ethics and
citizenship courses taught
in basic general and multi-modal education and in
teacher training for all levels. This core curriculum was adopted at the
federal
level, and the topic of human rights is part of the curriculum in all
the provinces.
506. Since 1992 Argentina has been pursuing a policy of
publishing legal texts and international declarations on the rights of the
child.
507. Many of the provinces also joined in the National Campaign
for the Rights of the Child, consisting of a week-long series of intensive
activities in schools.
508. A story book entitled "I'm counting on you",
offering specific instruction in the rights of the child, was published in 1998
and distributed free of charge.
509. An international seminar on
"Education and quality of life" was held in 1997 under the programme on
cross-cutting curriculum
content, followed in 1998 by a consultation meeting for
social workers involved in quality-of-life projects. Personnel from the
education system and NGOs exchanged experience on the difficulties involved in
educating indigenous peoples, marginalized groups,
persons with health problems,
etc. The conclusions reached will be used in the drafting of updated curricula
taking quality of life
as their design criterion.
Constitution of the
Autonomous City of Buenos Aires
"Article 24. The City shall assume responsibility, which may not be
delegated, for the funding of secular and free public education at all levels
and in all modes from the forty-fifth day of life up to the higher level; such
education shall be compulsory for 10 years from the
pre-school level, or for any
longer period that the law may prescribe.
It shall establish an education system administered and controlled by the
Executive which, in accordance with the City's legislation
on education, shall
ensure grass-roots participation and democracy in decision-making.
It shall create and recognize, within its jurisdiction, education
establishments empowered to award academic qualifications and
degrees at all
levels.
It shall be responsible for the training and further training of teachers
and shall ensure their suitability and establish for them
a career structure and
levels of remuneration consistent with their social function.
It shall guarantee the right of persons with special needs to receive
education and to work as teachers, promoting their integration
at all the
system's levels and in all its modes.
It shall encourage links between education and the production system and
provide training for integration and reintegration in the
labour market. It
shall inculcate critical attitudes and the capacity to respond to developments
in science and technology and production
processes.
It shall take the gender perspective into consideration.
It shall introduce human rights and sex education
courses.
Article 30. Minorities
510. On the basis of the
information contained in Argentina's third periodic report submitted under
article 40 of the International
Covenant on Civil and Political Rights
concerning article 27 of the Covenant, in its eleventh, twelfth, thirteenth and
fourteenth
reports under the International Convention on the Elimination of All
Forms of Racial Discrimination, and in the preceding paragraphs
of the present
report, attention may drawn to the following points:
Religious
minorities
511. As stated in the section of the present report
dealing with article 14, freedom of religion is fully guaranteed for all the
inhabitants
of Argentina.
512. Furthermore, the information given in
respect of article 18 makes clear the rights and duties of parents and other
persons legally
responsible for children concerning the free exercise of
religion and religious beliefs.
Linguistic
minorities
513. Argentina's linguistic minorities are the indigenous
communities living within its territory. All the measures described in
the
present report, both legislative and practical, constitute guarantees of their
rights.
514. Nevertheless, attention is drawn by way of example to the
following measures taken at the provincial level:
Province of
Chaco
515. The "Casas del Sol" in the department of Güemes
(Mision Nueva Pompeya, Comandancia, Frías, Castelli, Zauzal, Zauzalito)
and in General San Martín and Charata cater for 90% of the indigenous
children of the Toba, Mocobíes and Wichi ethnic
groups.
516. They
work alongside the mothers in caring for the children.
517. Efforts are
being made to rescue the cultural heritage, and elements of white culture are
being introduced in order to enhance
the knowledge and improve the performance
of children living astride the two cultures.
518. The Casas provide
services for a total of 1,335 members of indigenous groups.
Article
31. Culture, leisure and free time
Cultural and artistic
activities
519. The national Secretariat for Culture, which reports
to the Office of the President, has the vital function of keeping the people's
creative capacities alive and productive by affirming the people's lead role as
advocates of culture, stimulating and supporting
the persons who express the
Argentine culture, especially its new values, and encouraging the development of
their vocations and
aptitudes. One of the Secretariat's objectives in this
connection is the promotion of cultural activities for children and young
people
and extending them to the whole country.
Reading
520. As
in most other parts of the world, the reading habit is on the decline in
Argentina. There may be many reasons for this, including
the very rapid advance
of television and video films and a change in the way people use their leisure
time, a change especially visible
in the habits of urban
life.
521. Programmes to encourage reading have been introduced
throughout the country in an attempt to reverse this trend.
522. The
Secretariat for Culture in particular has implemented a nationwide federal
programme to persuade more people to take up reading,
with emphasis on the most
vulnerable population groups: children, young people, women, hospital patients,
prison inmates, etc.
523. The National Commission for People's Libraries
(CONABIP) has been creating "special reading corners".
524. The first
Leopoldo Marescal National Reading Games were held in 1997, attracting a
participation of 36,000 children aged five
to 14 from all over the country. The
final stage took place in the Federal Capital, with an extremely high level of
participation,
in the premises of the National Library, ATC Cultura (a
television channel) and CONABIP, and even at the Olivos Presidential Estate,
where 125 children selected from all provinces of the country were guests at a
special reception hosted by the President, Dr. Carlos
Saúl
Menem.
525. The International Standard Book Number statistics indicate a
recent recovery by reading, encouraged by the media impact of a
number of big
literary prizes awarded by several publishing houses and perhaps even more by
the Buenos Aires Books Fair and the Children's
Books Fair, international events
which have been held with increasing success.
526. The Children's Books
Fair attracts more than 300,000 visitors every year to its workshops, play
areas, shows and other events
for children, young people and teachers. This
year the Secretariat for Culture held a number of events in halls at the Fair
and
at its stand (No. 61), which won first prize.
527. In addition,
CONABIP has established children's rooms in the People's
Libraries.
Music
528. The Secretariat for Culture counts
the National Children's Choir among the organizations for which it is
responsible. This Choir,
together with the other choirs operating under the
Secretariat's auspices (National Polyphonic Choir, and the Blind Singers'
Polyphonic
Choir) perform to audiences totalling more than 25,000 over the
year.
529. In 1997 the National Symphony Orchestra recorded its first CD
together with the two choirs, performing works by Argentine
composers.
530. Educational concerts are presented by the orchestral,
choral and dance groups of the Department of Music and Dance, directed
by
Maestro Pedro Ignacio Calderón, in public and private primary schools in
Buenos Aires City and Greater Buenos Aires.
531. The series "Let's go to
the opera" and "Children and music" were intended to bring opera and the tango
to children aged 11-13,
who were given an opportunity to attend the Cervantes
National Theatre for performances of such operas as "La Cenerentola" and
"L'Elisir
d'Amore" in versions for children and performances by the Juan de Dios
Filiberto National Orchestra for Argentine Music, directed
by Maestro Osvaldo
Piro. A total of 15 events were put on at the National Theatre between March
and December 1997, in addition to
the Tuesday concerts by the Juan de Dios
Filiberto Orchestra, attracting a total audience of over 150,000
schoolchildren.
532. There were resounding successes such as the Beijing
Opera and the children's play "Gulliver", and the auditorium was packed and
sold
out for almost all the events. "Gulliver" was presented throughout the year and
was also given at performances reserved for
schools: it was seen by
36,000 children from 58 schools.
533. The National Children's
Orchestras Programme and the National Children's Choir offer children from
different social sectors an
opportunity to learn to play an instrument and to
sing. With the definitive launch of this Programme the Secretariat has opened
up a new space for creativity, social training through music, and the
development and stimulation of Argentina's children and young
people. This
experiment in integrated training through music education is a project designed
to offer vulnerable children and young
people a valid alternative to
marginalization and the perils of the street, for it focuses on their everyday
lives and social activities.
534. The National Youth Choir, directed by
Maestro Néstor Zadoff, is managed by the Department for Music and Dance;
its members
are aged 16 to 25, and it has a repertoire which includes Argentine
and other Latin American composers; it has proved itself deserving
of major
national and international prizes.
Theatre
535. The
Cervantes Theatre carried out in 1997 in conjunction with the Libertablas group
its "Theatre in the classroom" programme,
staging theatrical events in school
classrooms. There were 124 of these events, with a total audience of about
25,000 children.
Special programmes
536. "Let's get
together for culture" programme: the aim is to make local cultural events
available to persons (children, young people
or adults) suffering from some kind
of disability, giving them access to cultural activities by installing suitable
facilities.
The following are some of the programme's activities:
- Electronic subtitling of theatre works and videos for the benefit of deaf
people;
- Theatre programmes printed in Braille;
- Access ramps for wheelchairs on entrance steps and stairways and
adaptation of toilet facilities;
- Free admission for disabled persons and reductions for their companions
and special seat quotas in theatres for institutions and
organizations working
with the disabled;
- Signing for the deaf on guided visits in museums;
- Installation of "reading corners" in hospitals and homes for the
elderly;
- Equipment of workshops and conduct of handicrafts courses for institutions
working with children at risk, such as the Padre Grassi
Foundation;
- On 22 December 1997 the Secretariat and the Ministry of Justice signed an
agreement to extend the cultural and training activities
to the inmates of
prisons throughout the country; this project has already begun.
537. The
Cervantes National Theatre is taking part in the "Let's get together for
culture" programme. It was for this reason that
it installed a ramp at its main
entrance for wheelchair access to help theatre-goers recovering from accidents
or suffering from
a locomotor disability. The Cervantes has undertaken to hold
a special monthly function for disabled persons. For these performances
an
electronic subtitling panel will be installed above the stage.
538. There
will also be programmes printed in Braille. These functions are scheduled for
the last Friday in each month, and the Cervantes
will make a total of 50 free
seats available for disabled persons and a further 50 for their companions, in
addition to complying
with the arrangement of charging only 50% of the seat
price for companions at all performances. This service was inaugurated in
October for one of the performances of "The Old Lady's
Visit".
Autonomous City of Buenos Aires
539. In accordance
with its Constitution, the Autonomous City of Buenos Aires promotes sports and
other physical activities on the basis of equality of
opportunities.
540. It maintains free sporting facilities and supports
the participation of its sportsmen and sportswomen, both normal persons and
those with special needs, in national and international
competitions.
541. Its Constitution states on the subject of
participation in cultural and artistic life:
"The City shall give special attention to and promote all creative
activities. It shall ensure cultural democracy and free artistic
expression and
prohibit all censorship; it shall facilitate access to cultural assets and
encourage the development of the country's
cultural undertakings; it shall
promote cultural exchanges; it shall actively defend the national language; it
shall create and preserve
spaces; it shall facilitate the removal of barriers to
communication; it shall support training in the arts and in handicrafts; it
shall support professional training in the cultural sphere; it shall ensure the
quality and the due advancement of artistic productions
and encourage the work
of the Nation's artists; it shall protect and development the expression of
popular culture; it shall make
provision for creative workers and their
organizations to take part in the design and appraisal of policy; it shall
protect and foster
the City's pluralist multi-racial identity and its
traditions.
This Constitution guarantees the preservation, restoration and development
of the cultural heritage, regardless of its juridical status and ownership,
and
the memory and history of the City and its local quarters".
Province
of Chubut
542. The organizational structure of the province's
Ministry of Health and Social Welfare includes two offices concerned with the
free-time activities of children (recreation, leisure and sports). The
Under-Secretariat for Social Welfare has two specific offices:
- The Office of Recreation and Social Tourism, which has the following
programmes:
An educational camps programme: "Chubut, a place to learn about";
A social tourism programme: "Getting to know my province";
A programme entitled "Ambassadors for sports, recreation and
culture";
- The Office for Sports, which has the following
programmes:
Chubut sporting games;
Sports schools for
beginners;
Riding the Chubut River;
ANTU
HUENU
Ambassadors for sports, recreation and
culture;
Municipal sports and recreation
councils;
Provincial mini-volleyball
tournaments;
Brotherhood games;
Olympics for
administrators;
Sun and space;
Inter-school sports
competitions;
Araucanía games;
Standardization in
sports;
Argentine games;
Social
tourism;
Improvement of sports performance.
Article 32.
Child labour
543. According to the 1991 national population census,
30.5% of 14-year-olds were economically active in rural areas and 11.7% in
urban
areas.
Minimum age for admission to paid
employment
544. The Employment Contracts Act (No. 20.744) contains
the current legislation on the prohibition of the performance of paid work
by
minors:
"Article 187. Minors of either sex aged over 14 and under 18 may
enter into any contact of employment subject to the conditions laid down in
articles
32 et seq. of this Act. All regulations, collective employment
agreements and wage scales shall guarantee minors equal pay when they work the
same number of hours a day or perform tasks usually performed by adults. The
apprenticeship and vocational training of minors aged
over 14 and under 18 shall
be governed by the relevant legislation in force or by legislation adopted for
this purpose".
"Article 189. Employers are prohibited from
employing minors aged under 14 in any kind of activity, whether for profit or
not. This prohibition
does not extend to minors employed, with the permission
of the school attendance office, in enterprises employing only family members,
provided that the work is not harmful or dangerous. Minors of school age but
older than the age indicated above may not work unless
they have completed their
compulsory schooling, except with the express permission of the school
attendance office and when their
employment is regarded as essential to their
own subsistence or that of their direct relatives, and provided that they
complete,
in a satisfactory manner, the minimum period of compulsory
schooling".
545. The Act also provides specific protection for minors
aged 14 to 18 who work:
"Article 188. When recruiting workers of either sex aged under 18
employers must require them or their legal representatives to supply a medical
certificate of their fitness for work and must ensure that they undergo the
periodic medical examinations required by the relevant
regulations".
546. The presentation of this certificate does not preclude
compliance with the requirements of other legislation concerning recruitment
or
admission to and continuation in employment. Article 35 of Decree Law No.
14.538/44, which applies to all minors aged under 18
who apply for permission to
work, stipulates that, for the purposes of pre-recruitment examinations and the
required periodic examinations,
the physical condition of the minor must be
assessed in the light of the nature, conditions and characteristics of the work
which
he is to do or is already doing and their influence on his physical,
mental and moral well-being. The fitness examination must also
take account of
the hygiene and safety conditions at the minor's workplace (on a case-by-case
basis) and of the tools he is to use.
All these measures go far beyond the
scope of a mere contractual relationship: the Act limits itself to determining
the basis for
the conclusion and continuation of the contract (fitness for
work), while the other provisions contained in the regulations referred
to in
the last part of article 188 have to do with health policy and the protection
and improvement of human resources, which are
matters for labour, public health
and social security law.
547. The current legislation stipulates that
minors may not work more than six hours a day or 36 hours a week. The
working day may
be extended to eight hours and the week to 48 hours for minors
aged over 16, subject to the prior authorization of the administrative
authorities.
548. The same legislation also prohibits minors from
performing night work, which is defined as work between 8 p.m. and 6 a.m.; in
the case of industrial establishments operating three shifts round the clock,
the period during which the employment of minors is
absolutely prohibited is
governed by the same rules.
549. At the level of international
legislation, Argentina has ratified the ILO Minimum Age Convention (No. 138 of
1973), thus undertaking
a firm commitment to take action to abolish or restrict
child labour.
Province of Santa Fe
550. The Employment
Unit, in accordance with the policies of the province's Office for Children,
Women and the Family, promotes measures
for the training of adolescents, young
people, women and families at social risk.
551. The Office is addressing
the situation of the members of these categories who are obliged to assume
responsibility for finding
productive jobs in society.
552. They are not
properly prepared to do so, for most of them have not completed their schooling
and have received little on-the-job
training. Furthermore, the labour market
demands a high level of comprehensive training and the ability to adapt to the
various
tasks which a given job may require; a broad section of the population
is thus excluded from the system.
553. In these circumstances,
adolescents and young people have a heightened feeling of insecurity and
vulnerability, which generates
further uncertainties as they seek to carry out
an independent life project.
554. What is needed in this situation is the
provision of a space for comprehensive training, where adolescents and young
people will
be able to discover and develop their abilities.
Province
of Chubut
555. The Act on the comprehensive protection of children
and the family establishes children's right to comprehensive training to
enable
them to find jobs.
556. The Act also stipulates that children must be
protected against all kinds of economic exploitation and the performance of work
which may be dangerous or harm their health or integrated development and is
prohibited on the ground of their age.
557. The provincial State is
required to take appropriate measures to prevent and suppress the exploitation
of children and infringements
of the current labour legislation.
558. It
must also introduce programmes to help and support the families of children
suffering exploitation.
559. Children who work in violation of the labour
legislation in order to help maintain their families must be incorporated in
family
support programmes which will put an end to this
situation.
Article 33. Protection against the illicit use of narcotic
drugs and prevention of the use of children in
their
production and trafficking
560. Within the Secretariat for the
Prevention of Drug Abuse and the Fight against Drugs Trafficking, which reports
to the Office
of the President, the Under-Secretariat for Prevention and
Technical Assistance works in collaboration with other agencies concerned
with
these matters, in particular the National Council for Children and the Family of
the Secretariat for Social Development, which
also reports to the Office of the
President.
561. In addition, this Under-Secretariat carries out
prevention activities of an educational nature and supports and coordinates the
work of governmental and non-governmental agencies concerned with training,
technical assistance and awareness-raising in connection
with problems of drug
abuse.
562. Since prevention is one of the tools for protecting children
against drug abuse, the Under-Secretariat's Prevention and Assistance
Office
schedules conferences, days, seminars, courses, discussion groups, etc., where
special emphasis is given to strengthening
the means of protection - through the
family and the community - in order to help to reduce risk patterns of behaviour
among children
likely to place them at risk.
563. This work is supported
by the distribution of informational and educational materials.
Article 34. Protection against sexual exploitation and sexual abuse
564. Argentina is taking an active part in the
open-ended inter-sessional working group on a draft optional protocol to the
Convention
on the Rights of the Child on the sale of children, child
prostitution and child pornography.
565. In its comments on the report of
the working group on its fourth session (E/CN.4/1998/103) Argentina stated its
position to the
effect that a clear distinction must be made between the
protection provided by article 34 and the protection provided by article
35 of
the Convention. It maintained that for the purposes of drafting a protocol
consistent with those two complementary provisions
"it is evident that a
distinction is made between the case of protection against the sexual
exploitation of children (art. 34) and
the case of the sale of or traffic in
children for any purpose or in any form (art. 35). If the purpose of
that international instrument had been to deal with the two questions by
linking them closely as being related in nature and kind,
it would be impossible
to explain the express use of the terms "for any purpose or in any form" at the
end of article 35. To maintain
that article 35 refers to sale for the purpose
of sexual exploitation or abuse entails a serious difficulty of a logical nature
which
would be hard to resolve".
566. Attention is also drawn in this
connection to the information given under article 19 of the
Convention.
Article 35. Measures to prevent the abduction, the
sale of or traffic in children
567. There is no doubt that
intercountry adoption has led to many cases of unlawful adoption in violation of
the rights of the child
involving culpable acts of child abduction. Of interest
here is the study on "Sale of and traffic in children in Argentina" produced
in
1989 by Defence for Children International and the Secretariat for Human
Development and the Family of the Ministry of Health
and Social Welfare, which
was referred to under article 11.
568. In its comments on the report of
the working group, mentioned in connection with article 34, Argentina set out
the criteria which,
in its view, should carry most weight in the drafting of
definitions of "sale of children" and "child prostitution" for the purposes
of
the optional protocol. It argued the need to have a definition of "sale of
children" which covered the different forms that that
criminal phenomenon could
take, in other words to treat the "sale" as an act to be condemned in itself,
regardless of its purpose
or any remuneration agreed upon. In the case of the
second definition Argentina argued that, for the purposes of characterizing
as
unlawful - without giving rise to differing interpretations - any activity
relating to sexual "services" or "activities" of a
child, the word "unlawful"
should be deleted from the draft text.
569. Without prejudice to any of
the information given earlier in respect of the measures taken to prevent the
abduction, sale of
or traffic in children, it must be added that Argentina is
currently engaged in the legislative procedures for approval of the
Inter-American
Convention on International Traffic in Minors, adopted at the
fifth Inter-American Specialized Conference on Private International
Law,
article 1 of which states:
"The purpose of the present Convention, with a view to protection of the
fundamental rights of minors and their best interests,
is the prevention and
punishment of the international traffic in minors as well as the regulation of
its civil and penal aspects".
570. The rules contained in this
Convention, which Argentina intends to approve, are compatible with the other
international instruments
to which it is a party, although the reservation
entered by Argentina at the time of its ratification of the Convention on the
Rights
of the Child should be kept in mind.
571. The approval of the
Inter-American Convention by Argentina's Legislature would provide, by reason of
its penal, civil and procedural
effects, an effective tool for waging the
hemisphere's battle against the crime of trafficking in minors.
Article 36. Protection against all other forms of exploitation
572. Attention is drawn to the information
given under article 19 of the Convention.
Article 37. Torture,
prohibition of capital punishment, and personal
liberty
573. Argentina does not apply the death penalty. Article 18
of the 1853/1860 Constitution states that all forms of torture or beating are
abolished for ever and throughout the Republic.
574. As a result of the
1994 reform, article 75 (22) of the Constitution accords constitutional rank to
a number of international human rights instruments, including the Convention
against Torture and Other
Cruel, Inhuman or Degrading Treatment or
Punishment.
575. In the inter-American sphere, Argentina contributed to
and strongly promoted the text of the Inter-American Convention on Forced
Disappearance of Persons, which was adopted in Belem do Para on 9 June 1994 and
entered into force on 28 March 1996. States parties
to this instrument
undertake not practise, permit or tolerate the forced disappearance of persons,
even under a state of emergency.
A state of emergency may not be used to
justify the forced disappearance of persons; indeed, all judicial guarantees
must remain
in force at such times.
576. In addition to its main
objective of eradicating the practice of torture in any place and at any time,
the Convention also aims
to ensure that public officials who commit such acts do
not enjoy immunity, especially when their action amounts to an abuse of
authority.
577. Attention is drawn by way of example to the following
measures taken by the provinces with regard to juveniles in conflict with
the
law.
Province of San Juan
578. San Juan has introduced a
programme of comprehensive care for juveniles in conflict with the criminal law
with the principal
objective of introducing measures for the care of such
juveniles in the 14-19 age range. The programme's specific aim is to provide
preventive treatment and assistance for juveniles deprived of their liberty who
are first offenders and have been referred by the
juvenile courts. The programme
has two projects:
Juveniles confined in the Chimbas
Institute;
Juvenile first offenders brought before the juvenile
courts.
Province of Tierra del Fuego, the Antarctic and the South
Atlantic Islands
579. This province is operating a probation
programme consisting of non-institutional measures carried out in the social
environment
and the family of juveniles in conflict with the criminal law as an
alternative to deprivation of liberty. Basically, the programme
operates an
individual system of monitoring which emphasizes the positive characteristics
and the potential of the juvenile and his
family and community on the basis of
strategies designed to work in harmony with each other at all stages rather than
representing
just the final stage of an uncoordinated system. The programme
encourages the community to take an active part in correcting the
antisocial
behaviour of marginalized juvenile offenders and in facilitating their
reintegration in the life of society. It aims
to consolidate the positive
elements of what is a natural system for the correction of juveniles in conflict
with the law. It advocates
community life and the exercise of liberty as a
better setting for development than confinement in an
institution.
580. This programme of provincial scope dealt with some 80
cases in 1997. It operates mainly in Ushuaia, coordinating referrals with
the
Judiciary; in Río Grande not all of the juvenile offenders have
been referred, although most of the cases are taken over by the programme by
simple administrative recourse.
581. One point to bear in mind is that
80% of the offences committed by juveniles do not reveal any profound commitment
to crime (either
the case involves a misdemeanour - usually an offence against
property: theft, robbery, criminal damage, etc., or it involves a one-off
offence without evidence of ingrained criminal habits). The province still does
not have any secure institutions for housing juveniles.
Nor does it have any
cases of juveniles arrested for serious crimes (murder, for
example).
582. It should also be pointed out that, in order to safeguard
the rights of the juveniles arrested for various reasons by the provincial
police (after committing crimes or minor offences or for preventive purposes)
and taken to a police station, the competent administrative
authority - the
province's Office for Children and the Family - has them attended to by social
workers under passive custody from
the time they enter the police station until
they are handed over to their parents, guardians or other legal representatives.
The
family and juvenile court of the judicial district in question is
immediately informed by telephone. This communication does not
imply that the
case is being brought before a court. This arrangement has proved extremely
effective in ensuring children's comprehensive
protection.
Province
of Entre Ríos
583. At the request of the provincial Judiciary,
the province's Children's Council has attended to 2,800 juveniles under its
periodic
monitoring and probation programmes. Under these programmes the
children remain with their families and an effort is made to strengthen
the
bonds of affection with their parents and avoid removal from the
family.
584. Consideration is currently being given to a programme
designed to tackle from all angles the problems of juveniles in conflict
with
the law and suffering severe behavioural disturbances. A project is being
formulated for the establishment of an "intensive
support home", which will
comply with all the requirements of the national and international legislation
and provide appropriate
high-impact treatment to facilitate the juveniles'
recovery.
585. The province has also established, following a pilot
project, a system of community care, in which community workers provide
and
monitor individual treatment for juvenile offenders. The system is catering for
50 children.
586. The Children's Council also created a private agencies
unit to coordinate the private homes providing full and part-time institutional
care and supports undertakings of the "day-centre" type. Its programmes cover
6,100 of the province's children (130 institutions).
587. See the annex
for further statistical information.
Province of
Misiones
588. Juveniles arrested by the provincial police are kept at
police stations in the capital and the interior. Depending on their
age and the
alleged offence, they may be collected by their parents or a family member, or
in exceptional cases they may be referred
to an alternative programme run by the
Office for Children, the Family and Disabled Persons or to an NGO residential
institution;
in more serious cases a court may order boys to be transferred to
the juvenile prison in Posadas and girls to the women's prison.
589. The rehabilitation of juveniles deprived of their liberty is a
responsibility of the Judiciary which it discharges through the
Office of the
Government Procurator, the courts and the Ombudsman's Office; the Executive
discharges its responsibilities in this
area through the Office for Children,
the Family and Disabled Persons. This Office performs the functions of the
technical/administrative
agency referred to in Act No. 10.903 on the wardship
minors.
590. Responsibility for security rests with the provincial police
and the Directorate-General for Penal Institutions.
591. An attempt is
being made to overcome this evident fragmentation of responsibility among so
many institutions by suitable arrangements
for coordination of their
work.
592. However, the key point in respect of compliance with the
Convention is the lack of any provincial legislation on children. The
real
concern about this problem is manifested in a project submitted to the Governor
by the three authorities involved and in the
recent establishment (on 27
November 1997) of two family courts, which will have jurisdiction over the cases
stipulated in the Civil
Code.
593. The principal aim of the two
residential facilities opened in early 1998 for juveniles in conflict with the
law is to offer such
juveniles a home whose internal arrangements resemble those
of a family, with adults responsible for instruction and discipline but
with an
organizational system different from the one usually found in care institutions.
These two establishments provide the kind
of residential care which enables the
children to experience a process of affective socialization different from what
they had experienced
before admission and which fosters their healthy personal
development and a self-image which will ease their reintegration in
society.
594. The project on residential care of juveniles in conflict
with the law is being implemented jointly by the Ministry of Social
Welfare,
Women and Youth and the National Council for Children and the Family. Many
members of local communities have committed
themselves to the project in the
search for valid solutions to the juvenile problem.
595. There has been
an increase in recent years in the number of children exhibiting serious
behavioural problems and a tendency to
be socially disruptive and
self-destructive, resulting in intervention by the police followed by judicial
proceedings and protective
confinement.
596. The targets of the project
designed for tackling this problem are male juveniles aged under 18 in conflict
with the law exhibiting
bad behaviour and a lifestyle injurious to themselves or
other persons (problems of alcoholism, drug use, antisocial behaviour, criminal
activity, etc.) but not any psychiatric pathology, mental disability, drug
addiction or serious neurological disturbance.
597. The juveniles are
referred by the judicial authorities or a protection agency following an
evaluation report by the technical
team, on the basis of which a decision is
taken on the appropriateness of this kind of treatment.
598. The
technical team from the residential institution makes this evaluation in the
place where the juvenile is being held and works
with him to inform him about
the proposal and persuade him to accept it.
599. Since the residential
institution is there to provide treatment, this prior work with prospective
inmates is essential, for the
treatment begins at this stage with the juvenile's
informed acceptance of the proposal.
600. Juveniles remain in the institution until they have conquered their
personal problems or until the institution's goal of social
reintegration has
been attained.
Province of Santa Fe
601. The province's
approach to the specific problems of juveniles in conflict with the criminal law
entails the comprehensive performance
by the Office for Children, Women and the
Family of one of the most direct functions entrusted by the provincial State to
the Office
as the administrative agency, and therefore part of the Executive,
for safeguarding the exercise of the rights of the child.
602. When
dealing with juveniles who have broken the law the police do not disregard the
considerations of prevention, promotion and
integrated care which motivate other
organizations, but rather they give additional effect to those considerations by
proceeding
in the manner best suited to each case, recognizing the fact that
juvenile offences are the result of prior situations of need, marginalization
and deprivation exacerbated by the characteristics of the juveniles' adolescent
stage of development.
603. This programme has three
subprogrammes:
1. Evaluation and
counselling
604. Professionals work with juveniles while they are
being held in police stations in order to produce a report for the juvenile
court dealing with the matter containing a psycho-social evaluation of the
juvenile and his family and guidance on how best to proceed
with the case. This
work was done from the initiation of the subprogramme and during 1995 and
1996.
605. In 1996 approaches were made to the Government Procurator for
permission to do more work with and offer greater assistance to
detained
juveniles; it was suggested that they should be held in three police stations
(Nos. 2, 5 and 6) in Rosario whose buildings
and security arrangements seemed to
be the most suitable. Older detainees were transferred to other
stations.
606. This subprogramme's aim is to provide a weekly list of
detainees who have not been visited by their families and to encourage
the
families to reestablish the family link. It also provides supervision of the
juvenile from the time of his release until he
is taken over by the programme to
which he has been referred. Discussion workshops are held with groups of 15
juvenile detainees
to give them an opportunity to talk about their feelings, to
resolve group difficulties, and to improve their life in detention by
encouraging a willingness to discuss such problems and trying to overcome
individual resistance.
2. Probation
607. Probation is one
of the measures available under the integrated system of professional care for
juveniles aged 13 to 18 who are
in conflict with the criminal law.
Non-institutional treatment is provided as an alternative to confinement and in
some cases as
a means of treatment and monitoring after release.
608. The
professional team consists of psychological workers who address the social and
psychological aspects of the child's current
and past problems. The treatment
measures are carried out in the child's family home, in his own home, or in one
of the places he
frequents.
3. The Granja (Farmhouse) Centre
609. This subprogramme is
designed as a treatment unit for the care, development and psycho-social
rehabilitation of the inmates.
The measures to which the inmates are subjected,
the activities in which they take part and the professional care which they
receive
form part of a programme of individual treatment designed specifically
for them. One of the aims is that the juveniles should maintain
active contacts
with the community. The subprogramme caters for about 60 male adolescents. The
reasons for their confinement include
theft, aggravated theft, homicide,
robbery, rape, threatening behaviour, robbery with homicide, and attempted
robbery.
Article 38. Children in armed
conflicts
610. Argentina entered a reservation to article 38 at the
time of ratifying the Convention, declaring: "... [Argentina] would have
liked
the Convention categorically to prohibit the use of children in armed conflicts;
such a prohibition exists in its domestic
law which, by virtue of article 41 of
the Convention, it shall continue to apply in this regard".
611. It is
important to point out that by Decree No. 1537 of 29 August 1994 the President
of the Republic made military service voluntary.
Voluntary military service was
then regulated by the National Congress in Act No. 24.429, adopted on 14
December 1994 and promulgated
on 5 January 1995. The regulations contained in
this Act were confirmed by Decree No. 978 of 6 July 1995. Under article 19 of
the
Act, which provides that in the exceptional event that the established
quotas are not filled by volunteer recruits the Executive
may, on substantiated
grounds and with the statutory authorization of the Congress, conscript citizens
who have reached 18 years
of age in the year in question for a period of service
not exceeding one year.
Article 39. Measures to promote physical and
psychological recovery and social reintegration of the child
612. As
indicated in the Committee's general guidelines (CRC/C/5, para. 23 (a) (ii)),
the information given on this point should address
the recovery of children
victims of armed conflicts. It is clear from the information given above in
respect of article 38 that
in no cases do children participate directly in
hostilities.
613. The allowances paid to parents who participated or
might have participated in hostilities - in the armed conflict in the South
Atlantic in 1992, for example - cover all the members of the
family.
Article 40. Due process
614. Article 8 of the
Criminal Code stipulates that minors and women shall serve their sentences in
special establishments.
615. Act No. 22.278 of 25 August 1980, as amended
by Act No. 22.803, established the prisons regime applicable to minors. It
reads
in part:
"Article 1. No punishment may be imposed on any person under the age
of 16 years. Nor may any punishment be imposed on a person under the age
of 18
years for a privately actionable offence, an offence carrying a custodial
sentence of not more than two years, or an offence
punishable by a fine or
disqualification.
If any charge is brought against such persons, the judicial authority shall
make an interim order, verify the offence, arrange an
interview with the
juvenile concerned and with his parents or guardian, and order the relevant
reports and expert assessments of
his personality, his family and his social
situation.
If necessary, it shall order the juvenile to be transferred to an
appropriate place for the purposes of closer study for as long
as may be
necessary.
If it is apparent from these assessments that the juvenile has been
abandoned, is in need of assistance, is in material or moral
danger or has
behavioural problems, the court shall issue, in the form of an order supported
by due grounds, a final ruling concerning
the action to be taken, after having
heard the parents or guardian.
Article 2. Punishment may be imposed on a person between the ages of
16 and 18 years who has committed an offence other than the ones specified
in
article 1.
Article 3. The court's ruling shall specify:
(a) The court's mandatory custody of the juvenile with a view to ensuring
that he receives suitable training as part of his comprehensive
protection. To
this end, the court may order any measures which it deems appropriate for the
juvenile but which shall always be
subject to amendment in his interest;
(b) The consequent restriction of the exercise of parental authority by the
parents or guardian to the areas fixed by the judicial
authority and in
accordance with its instructions, without prejudice to their duty to fulfil the
inherent obligations of parents
and guardians;
(c) The award of custody when necessary.
The enforcement of a final ruling may be terminated at any time by a
substantiated judicial order and shall cease for all legal effects
when the
juvenile reaches the age of majority.
Article 6. Custodial
sentences imposed on minors by the courts shall be served in specialized
institutions".
The full text of the Act will be found in the
annex.
616. Juvenile court proceedings within the jurisdiction of the
Federal Judiciary and the ordinary courts of the Federal Capital and
the
National Territories are governed by the Code of Criminal Procedure (Act No.
23.984 of 1991).
617. The statement of grounds accompanying the text of
the reform noted that the general procedural rules will be subject to exceptions
in proceedings against juveniles aged under 18 depending on the modalities and
necessities of individual cases: special detention
regime, detention separate
from adults, guardianship measures, involvement of a juvenile procurator,
minimum and only essential attendance
by juveniles in proceedings before
examining magistrates and in court, in camera proceedings, attendance by
parents or guardians, possibility of amending the measures adopted for reasons
of security or education,
etc.
618. The relevant procedural rules
contained in the Code are cited below.
General rule
"Article 410. Proceedings against juveniles aged under 18 shall be
conducted in accordance with the common provisions of this Code, except in
the
cases specified in this chapter".
Detention
"Article 411. A juvenile shall be held in detention only when there
are grounds for believing that he will not comply with the summons, attempt
to
destroy the evidence of the offence, make agreements with his accomplices, or
induce persons to make false statements.
In such cases the juvenile shall be housed in a special unit separate from
adults, where he shall be treated in the light of the
nature and mode of
execution of the offence which he is alleged to have committed, his age, his
degree of physical development, and
his other characteristics and potential
relations with other detainees.
No order shall be made in respect of a juvenile before the juvenile
procurator has submitted his report".
Precautionary measures
"Article 412. The presence of juveniles during proceedings before
examining magistrates shall be avoided as far as possible. The court may make
an interim order in respect of any juvenile whose case it is considering and
entrust him, for the purposes of his care and education,
to his parents or any
other person or institution which, by virtue of their background and
circumstances, offer guarantees of the
juvenile's moral welfare; such orders may
not be made before examination proceedings have been conducted, the parties have
been heard,
and the juvenile procurator has submitted his report.
In such cases the court may appoint a representative to ensure the
juvenile's direct protection and supervision and to submit periodic
reports to
the court concerning the juvenile's conduct and living
conditions".
Legal incapacity
"Article 76 (3). If the accused is aged under 18 years his rights as
a party may also be exercised by his parents or guardian".
"Article 413. In addition to the common rules, the following rules
shall also be observed during hearings:
(1) Hearings shall be held in camera and may be attended only by the
procurator and the other parties, their legal counsel, parents or guardians, and
other persons having
a legitimate interest in being present;
(2) The accused shall be present during the hearing only when this is
essential and he shall leave the courtroom when the purpose
of his presence has
been achieved;
(3) Attendance by a juvenile procurator is obligatory, non-attendance
rendering the hearing invalid, and he shall have the powers
accorded to defence
counsel even when the defendant has his own counsel.
(4) The court may hear the juvenile's parents or guardian, teachers, any
employers or superiors which he has or may have had, and
the care authorities
who are able to give information relevant to the assessment of his personality.
Declarations of this kind may
be supplemented by written reports.
The provisions of article 78 shall also be observed".
Mandatory
mental examination
"Article 78. The defendant shall undergo a mental examination,
provided that the offence with which he is charged carries a sentence of not
less
than 10 years' imprisonment or if he is a deaf-mute or aged under 18 years
or over 70 years, or if a protective measure is likely
to be
ordered".
Reconsideration
"Article 414. The court may, of its own motion or on the application
of a party, reconsider the measures of protection or education ordered in
respect of a juvenile. To this end it may conduct any appropriate examination
proceedings and must hear the interested parties before
giving its
ruling".
New general regulations on the treatment of convicted
persons
619. Decree No. 303/96 approved new regulations on the
treatment of convicted persons and revoked the regulations previously in
force.
620. Title 1 sets out the general principles, according to which
juveniles aged under 18 must not be held in prisons or other detention
facilities operated by the Federal Prisons Service, and stipulates that the
purpose of the prisons system, in addition to providing
secure custody for
convicted persons, must be to ensure that such persons maintain or acquire
socially acceptable standards of behaviour
and consideration for
others.
621. The following tables concerning inmates of the Federal
Prisons Service will be found in the annex: (1) Age structure of the prison
population; (2) Changes in the composition of the female prison population; (3)
Changes in the composition of the male prison population
aged under
21.
Bill on the criminal responsibility of
juveniles
622. Without prejudice to the information given in
preceding paragraphs, attention is drawn to a bill on the criminal
responsibility
of juveniles; this bill is the fruit of a consensus among all the
sectors, institutions and scientific disciplines concerned with
the juvenile
problem, including the Ministries of Justice and Education, numerous members of
the Judiciary, the Office of the Ombudsman,
the Office of the
Procurator-General, parliamentary advisers, health professionals,
representatives of UNICEF Argentina, etc.
623. The first agreement,
reached with evident unanimity, was on the need to change the prevailing
paradigm of the legislation in
force and adapt it to the new concept of the
"comprehensive protection of the child" framed by the
Convention.
624. The immediate consequence was agreement on the need to
remove juveniles from the adult penal system and create a specific regime
of
juvenile responsibility. The basic idea was to give effect to article 3 of the
Convention and in so doing reconcile society's
concern to see offenders
prosecuted with the requirements of the integrated training of young people on
their journey to adulthood.
625. The bill's structure departs from the
regime governing adult offenders, for under that regime it is impossible, as
experience
has shown, to hold juveniles criminally responsible and at the same
time respect their rights and safeguards.
626. In contrast, the new
criminal responsibility regime contributes to the comprehensive protection of
children by making it possible
to get to grips with conduct which, being
criminal conduct, is at odds with the most elementary community values and works
against
children's social integration; the new regime makes it easier to work
with children in order to modify such conduct.
627. From this standpoint,
the first need was to replace the penalties provided in he Criminal Code by
other measures which take full
account of the "best interests of the child" both
in their personal and in their social aspects.
628. Everyone involved in
the drafting of the bill agreed that the age of criminal responsibility fixed in
the existing criminal legislation
should not be lowered, and that such a move
could be considered only in the context of the proposed new sanctions of an
educational
nature. There was also agreement on the need for juvenile offenders
to accept that their conduct is antisocial and for them to be
able to set foot
on a path of inclusion in rather than exclusion from their
society.
629. The other focus of the proposed reform is to avoid the
severe hidden penalty currently implied by the discretionary powers of
the
judicial authorities to order the imposition of measures on juveniles without
first establishing some degree of criminal responsibility.
The bill therefore
proposes the abolition of these discretionary powers and the removal from the
scope of criminal responsibility
of all those situations involving juveniles
which require public or private proceedings to be instituted for the protection
of their
rights.
Content of the bill
630. The legislation
will apply to persons aged under 21. Persons aged under 21 but over 14 may bear
responsibility but they will
be subject to a special regime determined by the
Schedule of Criminal Responsibility.
631. The first chapter defines the
material and personal scope and states expressly that the safeguards provided by
the bill shall
apply to all children regardless of whether they are subject to
the system which it establishes. Accordingly, the rules contained
in the
procedural codes of the provinces, being specific and detailed systems of
safeguards of due process, will supplement the safeguards
contained in the new
Schedule of Criminal Responsibility.
632. The second chapter, on general
and specific safeguards, includes safeguards connected with jurisdiction,
defence and freedom
of movement. It is important to stress the inclusion of the
requirement of a special judicial organ having competence, exclusive
competence
as far as possible, in matters concerning juveniles; this requirement is also
stipulated in the chapter on the Government
Procurator's Office. This point is
made twice, because a special judicial organ will be better able to understand
children and their
problems and therefore order suitable care on the basis of
their personal and social background.
633. The third chapter contains the
punitive/educational measures. A schedule of criminal responsibility implies a
set of such measures
which can be used to provide different responses in the
light of the offence. The bill includes measures ranging from guidance and
support in the form of warnings, the obligation to make good the damage caused,
and the performance of community service to measures
which restrict freedom of
movement, such as probation, weekend detention, and confinement under a
semi-open or a closed regime, depending
on the type of crime or
offence.
634. In order to graduate the severity of the socio-educational
measures the bill contains a scale which divides the age range into
three
groups: 14-16, 16-18 and 18-21.
635. The seventh chapter regulates the
principal functions of the Government Procurator's Office, separating out the
specific functions
of prosecution, defence and expert testimony. The basic idea
underlying the intervention of members of this Office is that both
the defence
counsel and the technical experts should remain the same throughout the
proceedings, thus protecting the privacy of the
juvenile in question and
avoiding situations in which he is subjected repeatedly to the same expert
examinations, which do nothing
for his integrity.
636. The full text of
the bill will be found in the annex.
Province of
Misiones
637. The three powers submitted a joint bill to the Governor
in order to make good the lack of any provincial legislation on the protection
of children.
638. Two family courts were created in November 1997; they
will be competent to hear the cases specified in the Civil
Code.
Province of Chubut
639. By means of Act No. 37
(Organizational Act), as amended by Act No. 3.193, the Judiciary created the
offices of ombudsman for
children and ombudsman for disabled persons under the
Government Procurator for Guardianship, which will be responsible for the
mandatory
intervention stipulated in article 59 of the Civil
Code.
640. Accordingly, under Chubut's procedural legislation
intervention by these ombudsmen is mandatory (otherwise the proceedings are
invalid) in all cases involving minors.
641. The province is divided into
five jurisdictions, each having ombudsmen for children and for disabled
persons.
642. In criminal cases the technical defence of minors is
officially conducted by the general defence lawyers in each of the five
jurisdictions.
643. The reform of the Constitution led to a procedural
innovation: article 50, mentioned above, guarantees the application of the
safeguards of criminal procedure,
as a minimum, in guardianship
proceedings.
644. In addition, the latest reform of the Code of Criminal
Procedure introduced the requirement of the participation of victims in
the
proceedings and provided guarantees of their safety. To this end, the Judiciary
created the service for assistance to victims
of crime, which is being
introduced in the town of Trelew as a pilot project.
645. The Legislature
is currently considering a bill on the comprehensive protection of children and
the family, the second part of
which provides for the creation of juvenile
criminal courts and family courts.
646. Article 19 of this bill
stipulates that the provincial State shall provide the following rights and
judicial safeguards:
- The right be presumed innocent until proved guilty;
- The right to due process, to which end defendants may produce in their
defence any evidence which they deem fit;
- The right to the technical assistance of a lawyer of one's choice or one
provided free of charge by the State;
- The right to be heard in person by the competent authority;
- The right to request the attendance of one's parents or other legally
responsible persons from the time of arrest and at any stage
of the
proceedings;
- The right to have parents, guardians or any other person to whom the
juvenile has an emotional attachment to be informed immediately
of his arrest,
the place where he is being held, the alleged offence, and the court and police
unit dealing with the case;
- The right to remain silent;
- The right to strict confidentially in respect of any matters connected
with the arrest and/or detention of a juvenile or with the
alleged
offence.
647. In the event of deprivation of liberty, a juvenile has the
right to communicate by telephone or by any other means with members
of his
family or with any other person to whom he has an emotional
attachment.
Autonomous City of Buenos Aires
648. In
December 1998 the City's Legislature adopted its Act on the comprehensive
protection of the rights of the child. This Act
creates a decentralized system
of children's ombudsmen covering the whole City and reporting to a future
Council on the Rights of
the Child, which will be self-governing and have
financial independence.
649. The Act sets out the principles and
safeguards of the rights of the child in accordance with the Convention and
revokes for the
jurisdiction of the Federal Capital the custodial approach of
Act No. 10.903 (adopted in 1919) taken by the juvenile justice
system.
650. The new Act regards children as subjects of law and places
the emphasis on the prevention and early detection of problems and
on
integration in the family and the community.
651. It contains safeguards
for children accused of crimes or misdemeanours and for their parents and other
legally responsible persons.
If a child is arrested, he may call an adult of
his choice within the hour. Safeguards are also provided for exercise of his
right
to education. For example, he may receive public education and be awarded
the corresponding qualifications without producing a national
identity card if
he does not have one. The future Council will include representatives of
NGOs working in this area, of the ombudsmen's offices, and
of the Youth Council,
also to be created.
652. The Council on the Rights of the Child will also
be responsible for formulating public policy on children and for monitoring
public agencies and NGOs working with children. In addition, bodies running
shelter programmes will be able to admit children in
emergency cases without
authorization by a court, but they must report the facts to a court within 12
hours.
653. Many of these policies will be implemented on a decentralized
basis by the local ombudsman's office. The functions of these
offices include
counselling and assistance in situations of violation or threat of violation of
children's rights and the provision
of the services of a lawyer free of charge.
They may also appear as legitimate parties in judicial
proceedings.
654. When a nursing mother is detained, the City government
guarantees the right of breastfeeding for at least the first year of her
baby's
life and the right not to be separated from the baby.
-------------------
&#[1] 1 [The 23 provinces and the Autonomous City of Buenos Aires.]
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