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LATINAMERICAN AND THE CARIBBEAN COMMITTEE FOR THE DEFENSE OF WOMEN RIGHTS

CLADEM EL SALVADOR

SHADOW REPORT

ON THE CONVENTION OF CHILDREN’S RIGHTS

REDACTION TEAM:

  Alma Benítez Molina  and  Aída Ruth Macall

1-Introduction

a) Country context

 On January 16^th 1992, the Peace Agreements that ended the armed conflict between the Salvadoran Government and the Frente Farabundo Martí para la Liberación Nacional (FMLN) were signed. That act tie together some political, social, economic and cultural expectations between the Salvadoran population. Nevertheless, the economic causes and the social exclusion were not exceed since the governmental political and institutional practice annulled numerous essential aspects of the Agreements content. In some cases, the economic and political reforms that were waited for, not only were not produced but in short time get worse.

The surrounding of children in El Salvador, cannot be subtracted from the situation of their parents or relatives nor from the material social being in which they carry out or make their productive and social life. The Salvadoran family has been fragmented, and the rural family that ordinarily is more numerous had suffer the impact because of the lack of work in the agriculture.

Adults as young and children emigrate to try to find a job in the capital. Others look for a job in the United States, that had been confirmed by the General Director of the Salvadoran Chancellery, who had indicate that "daily 500 people leave El Salvador on the way to the United States of North America" who travel through organized networks that charge excessive amounts of money to them, using irregular routes and cruel transportation.

When the parents gain to arrive to the  North Country, other relatives take care of the children and from that moment there are big  desires of the family meeting, situation that is frustrated by the rigorous requirements that must legally fulfil. In many cases, children and adolescents have been detained by the Mexican and North American migratory authorities. Many children have disappeared, others have died and others are left by their guides, those who their parents have paid so that they transport them to the United States.

It is enough to point the case of Erika Cruz an 11 years old girl that used to live in the Port of Acajutla, El Salvador, when her father went to the United States trying to get a job, her mother disappears and she must take care of her younger brothers. She decides to look for his father and she crossed the Río Grande held up of a floater. Now, her school partners, teachers and the Senator Edward, in North Carolina are supporting her to avoid the deportation. Other children fall in the prostitution networks in Guatemala and Mexico; those who have better luck are repatriated by the Salvadoran Institute for the Protection of Minors (ISPM) and the intervention of the Salvadoran Ministry of Foreign Relations. Examples as the mentioned above are daily.

The economy is maintained by family remittances that the Salvadoran that are working in the United States send, and which official amount ascends to 2,200 million dollars annual that help to 337,000 families, through them they cover the basic needs with the family group that stayed in the country.

In the social context, the exclusion of the poorest sectors, the spacing of the public policies from the benefit of the vulnerable groups causes strong tensions between the population and the government because of the demand of diverse basic services, among them, the lack of water, work and the deficient access to the health and the educational services.

In relation to the political-legal context, the Salvadoran State has acquired some commitments appointed to guarantee the rights of the child after subscribing and ratifying the Convention on the Rights of Children on April 27^th 1990. Also, from the Peace Agreements that created the Office of the General Judge Advocate for the Defence of the Human Rights (PDDH), this Office through the Judge Advocate General  for the Children, develops the promotion, guarantee and supervision of the rights of children, in order to assure humanitarian conditions of life and a better development of their personality.

b) Antecedents and monitoring of the reports presented to the Committee

The Second Report of the Government of El Salvador (GOES) before the Committee on the Rights of Children, has suffer an inexcusable delay. It happened the same with the reports of the CEDAW and the Committee on Human Rights during year 2003. This Report, consists to a large extent of a sequential exhibition on the laws and institutions that have been created before and after the CRC was ratified by the GOES and after the Peace Agreements. This created  enthusiasm among the NGOs that work for the rights of children and opposition political parties. The international community contributed with resources to enable the minors judges, the police, the office of the judge general          advocate and the office of the public prosecutor in order that the internal legislation was modified according to the warranty line of the CRC.

The Second Report of the GOES before the Committee on the Rights of Children, will be examined according to four principles, which are:

1. The Principle of non Discrimination, 2. Principle of Superior Interest of Children, 3. Principle of the Right to Life and, 4. Principle of Participation:

1 - The Principle of non Discrimination

That supposes that all the boys and girls must have the same opportunity to enjoy their human rights as it is established in article 2 of the CRC. In the reality, the poor children are discriminated, lack everything and leave school to help in the support of the family. This situation is still more well-known in the children that live in countryside.

The Constitution and Secondary Laws regulate the minimum age of incorporation to the labour market, as well as the prohibition for minors to accomplish dangerous and unhealthy work. In spite of this, the firework industry uses about  2000 boys and girls in very dangerous places where every year fires take place and cause very young victims. On the other hand, 5,000 children work in the sugar-marking season where many or them result with hurts in their hands and 25,000 children work in related activities.

In the fishing activity, more than 10,085 boys (86%) and 14% girls work in unhealthy and risky conditions. The long working hours and the nocturnal work demonstrate that 42% of the interviewed people do not attend the school alleging that they are so far from the schools.1/

The Human Rights Watch organization (2004) made a study about boys and girls that work in the domestic service and indicates that "young girls aged 9 years work in the domestic service in El Salvador, with a schedule that can surpass the 12 daily hours, up to six days a week and wages between 40 and 100 dollars monthly". The Code of Work excludes domestic workers to enjoy rights, therefore they are vulnerable to all upsetting. They are discriminated and there is no will to change this situation from the governmental sector in the Legislative Assembly.

Even though El Salvador was one of the first countries in ratifying the 182 OIT Convention and showing specifically its commitment to initiate actions for the eradication of the worse forms of child labour, the Ministry of Work does not fulfil its responsibilities, it has a little budget, and it is an inoperative institution, because of the indifference or because it doesn’t have the appropriate mechanisms to perform its duties.

2 -  Principle of Superior Interest of Children (article 3)

The Salvadoran normative as much as in the constitutional dispositions and the obligations that emanate from the CRC, has adopted many and varied legislative and from another nature measures in order to incorporate the Principle of Superior Interest of Children in the Salvadoran legal system like a governing principle of protection of the childhood. Nevertheless, this principle is only applied when it is to decide before a minors court to whom corresponds the minor guardianship, or when there is a conflict with the law for the resolution of judicial measures.

The Director of the UCA Institute on Human Rights, Benjamín Cuellar, indicates that "the best development of the concept of "superior interest" is in the Family Code, but that located in such context does not go to an explicit recognition of the childhood as a social priority, but for the family and its conflicts". 2/

In judicial matter, were created: a) Family Courts b) Underage Offenders Courts and c) Monitoring and Control of the Implementation of Legal Measures against Underage Offenders Courts. In 2003 the Salvadoran Institute for the Integral Protection of the Children and Adolescents (ISNA) took care of more than 1,293 underage offenders. Nevertheless, there is negligence to take care of even within the Policía Nacional Civil (PNC) jails like in the minors arrest centers because when a boy or a girl is detained in the PNC, the older ones abuse them in different ways, even sexually.

The Underage Offenders Law is applied to the people aged 12 and minors of 18 and it has like basic principles: the protection of minors; the superior interest of children; the respect to their human rights; their integral formation; and the reintegration in their family and the society. Actually, it can be observed that in the minors arrest centers that are in conflict with the law, often there are arrested children who do not belong to gangs with others that are gang members that cause the firsts an irreparable damage.

3 - The Principle of the Right to Life

The human rights are universal, interdependent, inalienable and cannot be waived and like such, they are in the international norm specifically in the Letter of Human Rights that includes the Universal Declaration of Human Rights, the International Pact of Civil and Political Rights and the International Pact of Economic, Social and Cultural Rights. All this group of principles is guaranteed in the CRC and the States Parties of the Convention are forced to adapt the internal legislation to fulfil their international commitments and substantially improve the conditions of boys, girls and adolescents.

The right to the life is the principle or the more appraised universal concern. This right must be only examined from the fulfilment of the obligations of the States prescribed in the international norms and not like some governments do, trying to justify their unfulfillment and only make reference to the fact that life is respected, in the sense that there is no an official policy of physical elimination of boys, girls and adolescents. The fact of disrespect the state responsibilities is what confirms by itself, the state and social indolence and the maintenance of the status quo.

In El Salvador there are 1.500.000 boys and girls under nourished, they are vulnerable to any disease. The under nourishment is a slow death that affects the physical, mental and psychic development of boys, girls and adolescents. The under nourishment and the anaemia are attacking children of the rural areas. In the Municipalities of Tacuba and Ataco, in Ahuachapán, "40 children had died as a consequence of the under nourishment in 2002 and 12 in the 2003, the causes according to the Major of Tacuba respond to the crisis situation of the coffee, because at least 50% had a direct dependency of the production of the grain which combined to last earthquakes increased the misery of the families." 3/

In the Salvadoran capital, they are seen daily in the corners, where numerous drivers stop, many children aged 8 - 12, in deplorable conditions, they are children who live in the streets. This is not just an isolated case, but that is a social phenomenon conditioned by the relatives, communitarian and social dynamic that at the moment dominate the Salvadoran society, principally about the childhood. These children use the drug to survive and to mitigate the hunger and sleep in any place or outside their homes, that in most cases don’t have. The inherent dangers to this situation that suffer a big part of the boys and girls in El Salvador, are easily deductible.

The Olof Palme Foundation, between 2000 and 2002 denounced before the Office of the General Judge Advocate for the Defence of the Human Rights, the boys and girls mistreat by the national and municipal police. On this subject, on November 14^th 2002, newspaper "MAS" published that 40 children denounced that the agents mistreat them on different forms: a) hits with baton, punch, kicks b) flexions c) enforced work, they force them to wash their vehicles, to collect garbage or to load sand d) deprivation of freedom threats e) persecutions f) breaking of containers with glue and spill this material on their heads, (this glue is used to smell it and it works to them like drug, is highly harmful for the brain). 4/

The previous exposition and examples demonstrate that the problem of the right to the life of the children in El Salvador is not a theoretical problem since this has been fully surpassed by the International Law and the National Normative, but that had been reduced to an unfulfilled practical problem of institutional and governmental policy responsible of the Salvadoran State.

4 - Principle of Participation

The Article 31 of the CRC indicates that: 1-"The States Parties recognize the right of the boy and girl to the rest and recreation, play and the own recreational activities of their age and to participate freely in the cultural life and the arts. 2. The States Parties will respect and promote the right of the boy and girl to participate totally in the cultural, artistic, recreational and recreation life."

During the period that the civil war last in El Salvador (1980-1992),  boys, girls and adolescents were private to enjoy games, meetings with their friends, to walk freely because the war affected adults and children. After the Peace Agreements, when it was thought that everything would be better, took place a criminal explosion that forced boys, girls and adolescents to lock in themselves in order to prevent been victims of the delinquency.

To the margin of this entire situation, the recreation of the boys, girls and adolescents has not been priority for the Salvadoran government. In relation to the emergent of so many groups of youthful gang members, different sectors have indicated that one of the causes of these groups is that young people do not have healthy distractions and when locked up in their houses the only thing they can do is to watch violent an anti values films that are transmitted by the TV.

The National Council of Public Security (CNSP) is impelling the construction of football fields that young people like pretty much. With the support of the Canadian Cooperation and the Social Investment Fund for Local Development (FISDL), the CNSP is impelling the opening of a games field for 1,200 people to a cost of 60 thousand dollars, in the Maquilishuat, Cecilia and Progreso III communities, in San Salvador. It is a very small effort that has been made in this matter. As a result of this necessity, the government has promised to invest in year 2004, a million and a half dollars in infrastructure, for preventive programs and recreation that will benefit more than 45 thousand students in all the country.

c) Integral Analysis of the Convention on the Rights of the Child implementation.

The Executive Organ and the official party have denied the creation of the National Commission for search of Children Disappeared during the armed conflict although the Committee of Human Rights of United Nations in the 78 Period of sessions said that " It’s sorry that the delegation has not been able to explain the reasons why the Legislative Assembly did not support the creation of a National Commission of Disappeared Children in Conflict (articles 6 ,7 and 24).

The efforts of the Pro Búsqueda Association of Disappeared Children in the Conflict have allowed to document more than 700 cases and of these 250 cases have been solved satisfactory. In addition, before the lack of will of the government to contribute and to clarify where the boys and girls disappeared are, the Association has demanded to the Salvadoran government before the Inter-American Court of Human Rights (CIDH) because of the justice negation, in the cases of two disappeared children, Erlinda and Ernestina Serrano Cruz.

On the other hand, the Anti – Gang Law has caused a big controversy that has faced the President of the Republic Francisco Flores with the Legislative and the Judicial Branch and different social sectors. The Salvadoran society has been hit by the high level of delinquency and, to resist that situation, President Flores, presented to the Legislative Assembly, the Anti – Gang Law Project, which was approved by a period of 6 months (Oct. 2003). Three days before its use expired, the Supreme Court of Justice (CSJ) declared this law unconstitutional, situation that, had been already indicated by two opposition political parties, NGOs which work with children and many judges.

The Magistrate Julio Enrique Acosta Baires indicated that this law penalizes conducts that do not damage or put in danger fundamental juridical interests. He explained "that guarantees established by the CRC are violated". There are strong pressures of representatives of the official party so that the adults laws can be applied to minors although the Underage Offenders Law exists. The Executive Branch, with the previous law and the "new one" that were approved on April 1^st 2004, that does not make any important change, tries to continue its “Mano Dura” policy. The reaction of judges is that, "they will not apply the law because it is unconstitutional and violates the Convention on the Rights of Children".

In the application of the "Anti – Gang Law", it has been committed many abuses. For example, at the end of March 2004, two minors, one 13 and other 16, were confused with gang members and detained by 72 hours in the cells of the PNC of Ciudad  CREDISA. The two girls were sexually abused by the neighbouring male gang members, supported by the 9 female gang members who were in the cell in where the two minors were locked up.

On the other hand, the Domestic Violence is very high in all sectors, prevailing the physic mistreatment in the sector of low incomes and low schooling. So it’s demonstrates on a survey that was made by the Olof Palme Organization in 1999, which to this date the indices are the same.

Between the physic mistreatment, more than thousands people who answer the questions said that their parents use the following punishments: "slaps 52.59%; kicks 24.15%; pinching 27.82%; pushes 38.55%; burns 8.32%; with any object 72.54%; physic punishments 5.81%".5/

In the sectors of high incomes the emotional punishment is stronger 82.5%; negligence 52.5%; physic 17,5% and sexual 6,25% (2). In the low incomes sectors prevails physic punishment 87.12%; emotional 81.22%; negligence 68.87%; sexual 22%.

The mistreatment in the case of the labour children represents 97,4% and of the children who live in the streets it’s 96%. Also the study indicates that the greater rates of sexual abuse is in boys and girls from the rural areas aged 15 - 18 and in the labour children and those who live in the streets.

Because of the Convention some institutions for the protection of children appeared, it was approved the Minors Code, but that efforts has decline. A first draft of the Code of the Children and the Adolescence has been elaborated, widely discussed by many social sectors, but it has not been approved yet. Nevertheless, every day the conditions against the boys and girls become hard.

2. Situation of the Salvadoran children and adolescents in risk situation.

This chapter will show the difficult conditions great part of children and adolescents live in, also will show the social exclusion, the poverty, little education, family disintegration this part of the population has in common. For such aim we will treat thematic the following ones: work of children and adolescents in the domestic service, sexual violence, education, traffic of children and commercial sexual exploitation.

a)      Children and adolescent’s  domestic work

The domestic work in El Salvador is not controlled nor supervised by the Ministry of Work, reason why official information does not exist on this particular issue. The people who work in the domestic service are under the will of their employers. The situation is more worrying when they are girls and adolescents.

The domestic work is generally made by girls and adolescents; the boys are used in smaller amount. The girls and adolescents girls are considered suitable to make the “reproductive work”: take care of children, cleaning, washing and other needs.

Different sources indicate that the domestic work is one of the activities that move away the girls from the school because they work an average of 8 to 12 hours daily, with a day and half free every 15 days.

The organization Human Rights Watch (2004) made a study on boys and girls that do work in the domestic service and indicates that "young girls until 9 years of age  work in the domestic service in El Salvador, with a schedule that surpasses the 12 daily hours, up to six days  a week and payments between 40 to 100 dollars monthly". The Work Code excludes domestic workers to enjoy rights, therefore they are vulnerable to all offense. They are discriminated and there is no will to change this situation by the governmental sector in the Legislative Assembly.

In addition to the labor exploitation that is very serious, there are practices in many sectors of the society  that although are not accepted publicly, are accepted in the private space. These sectors consider normal that, men of the house abuse the domestic employees sexually, generally minor, to initiate their sexual practices if they are young men, in other cases they are mature men who abuse minors sexually. This situation is well-known, nevertheless, is a problem that never has been taken care of in its truthful dimension.

On these cases do not exist registries to indicate the magnitude of the problem, because the victims do not denounce the problem or they are sent to the street in difficult conditions.

Child Abuse and Sexual Violence

Different studies indicate that the Salvadoran society presents extreme characteristics of a patriarchal society. In thousands of cases, the men of the family are considered with absolute rights on the women of the family group.

In the low layers of the society it is frequent the crowd and the promiscuity, the alcohol and the drugs. These social conditions facilitate the child abuse and the sexual violence, produced by the father, stepfather, an uncle, grandfathers or a brother. In other occasions a near person of the family.

In relation to child mistreat the Salvadoran Institute for the Development of Women (ISDEMU), through the Program of the Family Relations took care of denunciations of young victims of abuse and sexual aggression.

a)      Child Abuse

In relation to childhood abuse, during years 2001, 2002, and 2003, there are registered a total of 4,457 denunciations, which 2,442 (55%) correspond to girls and 2,015 (45 %) to boys.

In year 2001 there are registered 1.252 denunciations of child abuse. 725 (58%) correspond to girls and 527 (42%) correspond to boys.

In year 2002 there are registered 1.688 denunciations of child abuse. 879 (52%) correspond to girls and 809 (48%) correspond to boys

In year 2003 there are registered 1.517 denunciations of child abuse. 838 (55%) correspond to girls and 679 (45%) correspond to boys

b)      Sexual violence

In relation to sexual aggression, between years 2001, 2002 and 2003, 933 denunciations were registered, 791 (85%) corresponds to girls and 142 (15%) correspond to boys.

During year 2001 were registered 198 denunciations of sexual aggression in minors

189 (85%) correspond to girls and 29 (15%) correspond to boys

During year 2002 were registered 300 denunciations of sexual aggression in minors

249 (83%) correspond to girls and 51(17%)  correspond to boys

During year 2003 were registered 435 denunciations of sexual aggression in minors

373 (86%) correspond to girls and 62 (14%) to boys

Girls and Adolescents Traffic

 The written, radial and televising mass media inform on this phenomenon: girls, boys and adolescents traffic with sexual objectives. A research work denominated Regional Investigation on Traffic, prostitution, infantile pornography and sexual tourism in Mexico and Central America, made by Liza Domínguez and sponsored by ECPAT International and International Alliance House, indicates the following:

"The traffic of boys, girls and adolescents with intentions of sexual commercial  exploitation mainly takes place from the canton of the rural area towards departmental chief cities, ports and cities like San Miguel and San Salvador. That also occurs between borders and the calls "blind points" between Guatemala, Honduras, Nicaragua and El Salvador. The Honduran, Nicaraguan and Salvadoran girls are dealt to Guatemala; and Guatemalans, Honduran and Nicaraguan  girls to El Salvador. This type of traffic is made by organized networks (often linked to the drug and cars traffic or to the traffic of people to the United States) or can be made by in an informal and "independent" way (as it is the case of those girls adolescents and adults who move themselves between countries by their own. About this last modality, in the cities of San Salvador, San Miguel, La Libertad and La Union there are cases of girls adolescents and adults coming from Honduras and Nicaragua that prostitute themselves in an "independent" way...."

The traffic of girls and adolescents is intimately related to the infantile pornography, the sexual exploitation of girls and adolescents, the drug traffic, etc. There are very organized networks that are very difficult to disarticulate; this problem would be smaller if in each country existed the minimum conditions so that the boys, girls and adolescents couldn’t be victims of people and groups without principles.

In relation with the children and adolescent pornography, in 2003, the lawyer Nelson García was accused because of the crime of children and adolescents´ pornography and sexual harassments. The year after was captured but, despite the charges, he never went to prison because his lawyers convinced judge Alba Estela Zelaya  that Mr. García was  suffering a high level of malnutrition and his weight was very low. Because of these reasons the Judgment assigned him the Rosales´ Hospital as his detention center.  Due to these actions women organizations manifested their concern especially after the treat favorably of the Superior Court that got him free after he paid a deposit of 15 thousand American dollars.

            During a press conference, Ima Guirola, claimant and representative of CEMUJER expressed her alarm: “this is an impunity act and a message against the protection of the children. Mr. García has violented the law itself and the morality”. With this resolution, been exposed by the media for several weeks, the childhood has been violented twice.

Commercial Sexual Exploitation of Boys, Girls and Adolescents (CSE)

The PANIAMOR Foundation of Costa Rica characterizes the commercial sexual exploitation of boys, girls and adolescents like:

"... a fundamental violation to the rights of the childhood and adolescence, a modality of abuse that implies not only the sexual victimization of a minor from other person, but the obtaining of a remuneration in money or species like product of the victimization; a contemporary form of slavery and forced and harmful activity that generates incomes ".

To collect official data about the amount of girls and adolescents in prostitution centers is not easy because when they look for the minors, the owners of the businesses hide them. The Body of Metropolitans Agents (CAM) of San Salvador who has the control of prostitution houses, bars, businesses in general, reported in 1998 that in the Salvadoran capital there were 3,959 centers of prostitution and approximately 2,069 were camouflaged as a cafeteria. Also they detected 59 centers of prostitution where worked an average of 6 women each one, resulting a number of 354 women which a 35% are adolescent, aged 13 - 18 years.

In many occasions, when there are searches in prostitution centers in which they assume there are minors, public prosecutors and polices take with them journalists and TV cameras that, acting against the law, expose the minors. By these methods they are stigmatizing and victimizing doubly. In addition, their right to the image is violated.

On the other hand, "in the sector of San Jacinto, in San Salvador, there are approximately 60 "businesses ", with a minimum of 5 women in each one, which implies a number of 300 women; it is estimated that 50% of them are aged 13 - 18. In this sector zones and streets with greater presence of adolescent women in prostitution exist (Martinez, 1998), mentioned in "Rights and Policies of Childhood, 2001, Olof Palme Foundation.

There are also other important places like San Miguel, a very populated city, the port of Acajutla, El Triunfo (Usulután), in the Espíritu Santo Island, in Corral de Mulas near to El Triunfo.

They are indicated like causes that encourage the commercial sexual exploitation of boys, girls and adolescents in El Salvador the following elements:

-         Deteriorated family relations

-          Marginalize and poverty in which the children and the adolescents live

-          Authoritarian relations

-          Generic inequality

-          Rural area – city Migration

-          Citizens insensibility about this problem

The assistance to school by girls and adolescents who have been caught by the networks of the commercial sexual exploitation is very low, most of them have not attended more than sixth primary grade. A 50 % have attended until the third grade and 15% do not know how to read nor to write.

3. - General measures of Implementation.

a.- Contextual frame

Art. 1: Convention on the Rights of the Child (CRC)

For the purposes of the present Convention, a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.

Constitution of the Republic (983) Art. 1. - El Salvador recognizes the human person like the origin and the end of the State activity, that it’s organized for the achievement of justice, the legal security and the communal well-being.

Consequently, it is a State obligation to assure the inhabitants the Republic, the enjoyment of freedom, health, culture, economic well-being and social justice.

Art. 34. - All minor has the right to live in a family and environmental conditions that allow her/his integral development, and will have the protection of the State. The law will determine the functions of the State and will create the institutions for the protection of the maternity and the childhood.

Art. 35. - The State will protect the physical, mental and moral health of the minors, and guaranteed their right to the education and the attendance. The antisocial conduct of the minors that constitutes crime or offence will be subject to a special legal regime.

 Art. 71. – All Salvadorans above the age of eighteen years are citizen.

Family Code:

Art. 345. - All the people below the age of eighteen years are minors.

b. - Diffusion and Qualification of the CRC

About the diffusion, promotion and qualification of the Rights of the Child, and Young people the different governmental organizations and NGOs with the international cooperation, have designed and implemented campaigns of: Prevention, Sensibility, Work-shops, Forums, Contests, Cultural Activities to defend the Convention on the Rights of the Child, and also have been designed and reproduced popular pamphlets, posters, to use in the formal education like in the non formal one. It is possible to affirm that there has been national cover. Among the NGOs, which work actively by the defence of the rights of the Child are: Olof Palme, International Child Defence, Network for the Childhood and the Adolescence, Villages S.O.S, Home of the Disabled Child, "Natalia Siman" Children’s  Home, Divine Providence Children’s Home and the one of Children with AIDS.

Information Referred to the Right

General frame in which this Right is registered:

Laws and Norms oriented to regulate the Right of boys, girls and Adolescents

The Frame is constitute by: Arts. 1, 34, 35 and 71 of the Constitution of the Republic, Arts. 1,2, 3 of the Family Code and others from the CRC

RIGHTS AND FUNDAMENTAL GUARANTEES OF THE CHILDHOOD  

I.                   Family Code

In the Family Code had been included the normative corresponding to the filial paternal relation, and includes the development of the rights and obligation of the children, the personal care of such, their legal representation, the administration of its goods, and the extinction, loss, suspension and prorogues of the parental authority.

Equality between the children, independently of their connection (article 202) Knowledge about whom their parents are, being recognized by them and to take their last names. To live in their family, without been separated from them (only by legal causes) (article 203);

 To receive from their parents raising, education, protection, attendance and security. To inherit from their parents, in equality of conditions, whatever it is their connection (article 203)

To live in company of his/her father and mother or with whom has him/her under his personal care. To receive formation within canons of morality, human solidarity and respect to their resemblances.

A.     LEGISLATIVE MEASURES

As a result of the ratification of the CRC in 1990, the Republic of El Salvador initiated an ample review of its internal legislation related to the subject of the childhood and the adolescence, which had like primary target the integral protection of the rights of boys and girls, having itself obtained like a result a derogatory and substantive reform of obsolete laws, not fit with the new international normative, and consequently the approval of several legal instruments that incorporate and develop the principles and postulates of the Integral Protection Doctrine, among them, the Principle of the Superior Interest of the Child as a governing Principle of Protection of the childhood in every circumstance.

It was created, in addition, at the beginning of the nineties the Family, Woman and the Child Commissions,  in the Legislative Assembly, responsible for the study of the first drafts of laws related to the thematic of the childhood.

The laws adopted after the ratification of the Convention, with the purpose of adapting the internal legislation to the international right of the convention, are the following ones:

a)      Regulating Law on the Drugs Relative Activities (1991);

b)      Office of the General Judge Advocate for the Defense of the Human Rights Law (1991);

c)      Salvadoran Institute for the Protection of Minors Law (1993);

d)      Family Code (1994);

e)      Procedural Family Law (1994);

f)        Reforms to the Work Code  (1994);

g)      Underage Offenders Law (1995);

h)      Monitoring and Control of the Implementation of Legal Measures against Young Offenders Law (1995);

i)        Transitory Law of the Family State Registry  and the Patrimonial Regimes of  Marriage (1995);

j)        General Law of Education (1996);

k)      Law against the Domestic Violence (1996);

l)        Salvadoran Institute for the Development of Women Law (1996);

m)    Law on Organization and Functions of the Work Sector and Social Security (1996);

n)      Statutory law of the Natural People National Registry (1997);

o)      Penal code (1998);

p)      Penal Procedural Code (1998).

In addition, before the Convention entry into force, the Law on the Name of the Natural Person was approved (1990).

B.     JUDICIAL MEASURES

 The Administration of Minor Justice was previously in charge of judges and magistrates with competition in civil issues, with respect to the family relations between parents and children and to the application of limited measures of protection in favour of the boys and girl on the personal care, the trusteeship, the mother country power, the nutritional quotas, the connection processes, appointment of tutors and others, following the common procedure to dissolve civil subjects, established in the Civil Procedure Code of El Salvador. The Procedural Family Law, that took effect on October 1^st 1994, revoked the titles and chapters of Book Second of the Civil Procedures Code, relative to the applicable procedures in the matter of family.

C.     ADMINISTRATIVE AND OTHER MEASURES 

 During the period that includes the present report important institutions have been created, which mandate and functions are directly related to the promotion and protection of the rights of the childhood. Among such institutions the following ones can be mentioned:

a)      Salvadoran Institute for the Integral Protection of the Children and Adolescents (ISNA);

b)      Judge Advocate General  for the Children of the office of the General Judge Advocate for the Defense of the Human Rights (PDDH);

c)      The Department of the Minors Penal Defense of the General Office of the judge advocate of the Republic;

d)      the Department of Crimes against Women and Minors of the General Office of the public prosecutor of the Republic;

e)      The Department of Women and Minors of the General Director of Social Security / Ministry of Work and Social Security; and

f)        The Family Division of the Civil National Police.

At the moment it is the ISNA the institution that has, by legal disposition, the mandate to offer integral protection to the childhood in all circumstances.

The Salvadoran Institute for the Protection of Minors (ISPM), began to operate in the country in May 1993, like the responsible for the execution of the Attention of Minors National Policy, stated by the Executive Organ. In the ISPM law the constitutional mandate of special protection to the childhood is retaken and the doctrine of the integral protection is adopted, basing it on the Convention on the Rights of the Child. (the ISPM was created by Legislative Decree number 482 on March 11^th 1993)

 4 - General Principles

a)      Right to life, article 6

One of the most important problems that arose after the Peace Agreements, was the proliferation of "gangs”, violent in many cases, integrated by adolescents, with less feminine participation. This social problem wasn’t new, but if it was, the attention of governmental structures and the deformed attention that the mass media gave to the problem, stigmatised children typifying them as "underage offenders". It was begun to attack the effects but not the causes.

"The formulation and application of violator legal frameworks or that attempt against the constitutionality and International treaties, including the CRC, and, finally also made possible the appearance of illegal armed groups to the style of Death Squads that attributed themselves the right to physically eliminate boys, girls and adolescents gang members, without a rejection from the society or the State. Rather, in some cases, the opinions and behaviour of politicians, civil employees and citizens expressed a worrying attitude of support before the problem. Thus, the old authoritarian patterns of political behaviour and the practice of adversary elimination, were transferred to a new scene where boys, girls and adolescents finished being the central victims. "6/

Contrary to the pinnacle of institutions that were produced by the Peace Accords and the application of the CRC, the Transitory Law against the Delinquency and the Organized Crime was promulgated, and was approved in March 1996. A year later was declared unconstitutional by the CSJ because of the violation of the innocence presumption, to penalize offences, to privilege detainment etc.

"About the illegal and criminal practices, these were concentrated without exhausting in the case of the clandestine organization “Sombra Negra”. Beside the presumptions that awoke on the participation of police agents in these actions, the most preoccupant fact that has been indicated is the tolerance and even the citizen assent about the murders of boys, girls and adolescents." 7/

The boys and girls that live in the street or work in there are vulnerable to these offences. "They are considered like criminals and not like boys and girls, people do not recognize their rights and some members of the security forces had abuse them in so many ways: robbing their money, sexual abuse, hit them and even murdering some of them.8/

b)      Right to Equality, article 2

The Salvadoran society is considered like one of most unequal in the world. There is inequality in all sense. Between the children from the rural and urban areas, between the education that the boys, girls and adolescents receive to the one that receive the urban children and within these the education that receive the rich children is even better than the one that receive the poor children of urban area. There is inequality in quality, amount and opportunities.

There is also well-known that there is inequality before the law, as it happens with adults, the jails are full of poor people, the rich people have substitute measures. In the centers for minors detention there are not any boy, girl or adolescent whose parents have money. Also, it isn’t the same a boy, girl or adolescent who do not have incapacity to a boy, girl or adolescent with an incapacity and specially if he or she is poor.

The right to the equality is contemplated in many international instruments of human rights, among them, the CRC Article 2, and also in the Constitution of El Salvador when in its article 3 it indicates that "All the people are equal before the law. For the enjoyment of the civil rights restrictions that are based on nationality differences, race, sex or religion will not be able to be established. Hereditary jobs nor privileges are not recognized". 9/ This disposition consecrates the principle of legal equality and the one of non discrimination. It is important to note that by mention the civil rights, is to say those that apply in the sphere of the freedom of the person. About this subject, it is possible to indicated that, although there are instruments that establish the right to the equality and non discrimination, they do not crystallize in the reality.

c)      Right to participation, freedom of expression and information, article 12, 13, 15, 17

There is in El Salvador some normative that regulates and promotes the participation of boys, girls and adolescents. Between this norms it can be mentioned the Comparison of Opportunities Law for the People with incapacities