State Party Examination of the Initial Report of Chile on the Optional Protocol on The

NGO Group for the Convention on the Rights of the Child

State Party examination of the Initial Report of Chile on the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography (OPSC)

47th Session of the Committee on the Rights of the Child

14 January – 1 February 2008

Chile ratified the OPSC on 6 February 2003. On 28 January 2008 the Committee on the Rights of the Child (the Committee) considered the state’s initial report.

Opening Comments

Juan Martabit, Permanent Representative of Chile to the United Nations Office in Geneva, stressed Chile's commitment to the international system and to implementing the CRC and its optional protocols. There had been great efforts on the prevention of sexual exploitation. In 1999, a framework for action had been developed and reviews of the legislation had increased penalties for sexual exploitation of minors, including a draft law on trafficking, which considered the involvement of children an aggravating factor. Informal adoption, removal of a child from the country and abuse of trust were prohibited. A new labour law reduced work hours for children over fifteen, required them to remain in school and listed dangerous occupations and a draft law on child rights aimed to strengthen public institutions protecting children. New developments had been made to protect victims from revictimsation in the courts. The justice system included multi-disciplinary groups which provided assistance and rehabilitation services to children, with the support of civil society. The police, in collaboration with Microsoft had run programmes on safe navigation on the Internet. The government with assistance from the International Labour Organisation (ILO) and International Organisation for Migration (IOM) had conducted studies to gather and analyse data on sexual exploitation and trafficking.

Mr. Filali, the country rapporteur, commended the recognition of the problems of commercial sexual exploitation of children of the extent of trafficking and the ratification of ILO 182. The political will for improvement was demonstrated by the review of legislation on the rights of the child, including improvements on adoption and sale of children and child prostitution. However, other laws, for example provisions on pornography, were still pending in congress and the lack of definitions in the provisions on the sale of children might pose problems for implementation. Sex tourism was not treated as a separate offence in the legislation and there was no research on this issue. He asked about the status of the OPSC in domestic legislation and case law on its application in the courts as well as the training provided to judges. He asked about measures to address cyber crime and the vulnerability of children in the new media.

He noted that there was insufficient statistical data and it was not disaggregated. The information did not cover all areas of the OPSC. He asked about data collection, the allocation of sufficient budgetary resources and the status and functions of the National Service for Minors (SENAME). He asked about the existence of cultural perspectives or taboos which complicated the dissemination of information in these areas and the possible measures taken against this. He noted that the report had mentioned many programmes and the existence of child protection offices and helplines, but not contained much information on practical implementation and asked about mechanisms to follow up and evaluate these programmes. Few convictions recorded, with many cases being dismissed for insufficient proof, which might have a negative impact on prevention and lead to a sense of impunity. Finally, he noted that the state report had not followed the guidelines on reporting and, in particular, had not commented on how the general principles of the CRC were taken into consideration in the implementation of the OPSC.

Ms. Ortiz, the co-rapporteur, praised the progress made and the self-critical nature of the report. She asked about the participation of civil society in the preparation of this report. She reiterated the recommendation from the review of the periodic report on the need to reform the Minor’s act and establish an Ombudsman. She noted that there had been significant legal reforms, but that these still did not cover all aspects of the OPSC. She was concerned that the legislation on pornography did not penalise possession. This was a weakness since it was clear that demand increased the likelihood of children being abused in this way. She noted that despite extensive programmes and cooperation with the ILO and IOM there was a lack of coordination. SENAME was under a ministry and so was restricted in its ability to work equally with other ministries and was not recognised as the body primarily responsible for implanting measures affecting children. She expressed particular concern at the gaps in legislation and the rarity of convictions for sexual crimes.

Reporting Guidelines

The Committee remarked that the reporting guidelines were intended to assist the state as much as the Committee and would have improved the report. It also asked about NGO participation in reporting. The delegation replied that NGOs had been consulted in the preparation of the report. It pointed out that the guidelines were not published until November 2006, after the completion of the report. The Committee commented that the guidelines could be useful for implementing the OPSC as well as for reporting.

Legislation

The Committee asked about the status of the OPSC in domestic legislation and case law on its application in the courts. The delegation replied that the OPSC had precedence over domestic laws and could be directly invoked in courts, as was the case for all ratified international treaties. So far there was no case law based on the OPSC. The Committee pointed out that the OPSC could not be applied without domestic criminal legislation to establish and penalise the crimes. The delegation replied that the state was working on the incorporation of the relevant provisions into penal law.

The Committee asked about the time between ratification and publication in the official gazette for international treaties. The delegation replied that treaties had to be discussed in parliament and approved by congress. There was a short delay for review before promulgation and publication. The exact time depended on the delays at each stage.

The Committee noted that the time limit within which a case must be brought did not begin until a child victim reached eighteen and that legal assistance was available through SENAME. The delegation pointed out how often the aggressor was a family member or in a position of authority or trust. This measure reduced the impunity granted by such power.

The Committee asked about the failure to criminalise possession of pornography. The delegation replied that the legislation criminalised storage rather than possession. The case law on this issue was confused as the majority of judges thought this covered possession, but some considered that storage implied a significant quantity and the intention to distribute it. The Supreme Court was debating this matter and would declare on the case law.

The Committee asked about the criminalisation of all the acts which constitute sale under the OPSC. It asked about the consequences of sale in the absence of specific legal provisions. The delegation replied that the offering of a child for sale would be punishable under the legislation on adoption, but that there was no sale of children. There had been one exceptional case of a teenage mother offering her unborn child for sale. As the mother was only seventeen SENAME and the family judge had provided support rather than penalising her. The offering of a child for adoption in this way was, however, clearly illegal under adoption law. The Committee reminded the state that the definition of sale included activities such as forced labour, sale of organs and illegal adoption. It was concerned that some of these crimes might not be covered. Moreover, the OPSC required states to legislate on these issues as a precaution, even where there was not a problem.

The Committee asked about sex tourism. The delegation replied that sex tourism was not a legal category, but a cultural or sociological matter, and was, in any case, not a problem in Chile. Promotion and use of child prostitutes were criminalised, which would cover any incidents. The Committee reiterated the importance of precautionary legislation. It observed that tourist authority had produced a national tourist policy and that newspapers contained adverts for 'young companions'. The delegation retorted that these were not children and that the same was true of every city in the world.

The Committee asked about extraterritorial jurisdiction and mentioned an incident in 2003 when a US citizen caught in possession of pornography was deported rather than tried. It was particularly concerned that the provisions only seemed to cover cases in which the victim was Chilean.

The delegation did not provide information on the criminal responsibility of legal persons.

Court Procedures and Protection of Victims

The Committee asked about the low number of convictions for sexual offences. The delegation claimed that the reformed system was a significant improvement and had resulted in many cases and convictions. It did not consider the proportion of cases prosecuted and resulting in convictions, particularly important, but asserted that all cases where there was sufficient evidence were tried. It noted that sometimes victims did not always perceive themselves as victims and might therefore be reluctant to bring cases. In reply to a question about measures to address this problem, it stated that offences such as trafficking could be tried in the absence of the victim.

The Committee commended the guidelines on the treatment of child victims in the courts, but wondered if these were always applied. It asked for more information on the protection measures applied in the courtroom, particularly on the processes for cross-examination and the delivering of statements under cover. It asked if cases involving children were heard by a family judge. The delegation asserted that the protection of the victim was a priority. The child gave a statement and answered questions in a separate room. The prosecutor and defence lawyer did not cross-examine children, but channelled questions through the judge. Only the judge had direct contact with the child and determined the extent of the questioning in collaboration with experts. The child was accompanied by its parents but they were not permitted to speak or influence it. The delegation confirmed that the family courts dealt with all cases involving under eighteens. The Committee asked for confirmation that children were treated as victims and not as criminals. It asked about protection when the aggressor was a family member and the treatment of children taken into ‘protection’ by the police. It asked why the unit in charge of the protection of victims and witnesses was under the prosecutors office rather than the Ministry of Social Affairs. The delegation replied that assistance to victims was one of the obligations of the justice system, along with investigation and accusation, and so it made sense for the unit to be there. Irrespective of the outcome of the trial the child had the right to protection. During the investigation and trial preventive measures were taken to ensure that the child was not in contact with the offender.

The Committee asked whether reinsertion programmes for victims involved institutionalisation. The delegation replied that SENAME and NGOs provide assistance and shelter. This often took place in institutions since it was difficult to find families to adopt children.

The Committee asked about the increasing number of boys victims of sexual exploitation. The delegation stressed that all programmes were gender orientated and address the problems of both boys and girls.

The delegation did not answer on the identification of victims of offences under the OPSC among refugees and access to asylum processes for these victims.

Coordination and Institutions

The Committee asked about the establishment of an Ombudsman and national human rights institute. The delegation replied that a bill on establishing an Ombudsman was before parliament. The idea of a National Human Rights Institution had been approved in the first and second processes and the details of the proposal were being discussed by a group of members from both houses.

The Committee asked about coordinating of activities and the roles of SENAME, the Child Protection Offices and the Observatory. The delegation explained that SENAME was a public body under the Ministry of Justice with units throughout the country. It ran projects and worked in collaboration with NGOs and international organisations. It monitored child rights, assisted with legal representation, helped maintain the child helpline, and inspected programmes run by other organisations. It was running sixteen projects on sexual education and more than twenty specialised operations. It provided psychosocial assistance and healthcare where this was needed. It worked on awareness raising, through the child protection offices at the local level. The Observatory was a body comprised of representatives from public authorities, professionals and the private sector. It had a role in monitoring, analysis and the provision of advice on legislation.

The delegation did not answer of the adequacy of resources and training for these institutions.

Dissemination and Training

The Committee asked about dissemination of the OPSC and the role of the media in awareness raising. The delegation replied that dissemination was part of SENAME's work and focussed on the most violated rights. It worked with the media to disseminate and educate the population.

The Committee asked about training targeting parents. The delegation mentioned a community-based programme on strengthening families and training parents. Various other programmes aimed to raise awareness and reduce tolerance for sexual crimes.

Adoption

The Committee was concerned that children could be delivered into the care of another person without being formally adopted, and that these cases were not investigated or were dismissed rather than tried as illegal adoptions. The delegation replied that all adoption cases went through a legal process. Ideally the parents should care for a child with the assistance of their family as necessary, but if this was impossible the child might be put up for adoption. SENAME and a family judge were involved in the negotiation of the adoption and the selection of the foster parents. There was no way for a parent to simply hand over a child for adoption or negotiate directly with the host family legally.

Disappearances and Trafficking

The Committee asked about police work on disappearances and whether these children might be victims of sale or trafficking. It noted the high number of disappearances (7000 children a year) sited in some reports. The delegation replied that this figure was implausible, unless this was the total number of cases reported. Ninety-nine percent of these cases were resolved by the return of the young people within twenty-four hours. The police unit on disappearances worked to find children and reunite them with their families, and to prevent them becoming involved in crime or gangs. The state was not aware of networks selling disappeared children.

The Committee noted that there was no legislation on trafficking and asked about programmes to address this problem. It asked whether the OPSC was being used in the drafting of the bill on trafficking as well as the Palermo protocol. The delegation stressed that the state collaborated with other countries in the region on the question of trafficking and the development of legislation on the issue. The police had also worked with sex workers to raise awareness and gather information. There were also experts on trafficking at all the borders.

New Media

The Committee asked about legislation, training and activities against pornography on the Internet. The delegation asserted that the state had jurisdiction over the commercialisation, distribution and storage, but not the production of pornography on the Internet if it could be accessed from Chile. For obvious reasons investigations focused on perpetrators resident in Chile. The police had a special unit of detectives and technicians on cyber crime. It worked with Microsoft to track and detect pornography.

The Committee asked about the 'Pokemon phenomenon', which had encouraged young people to take and share naked photos. The delegation explained that this had not been a criminal activity. One case concerning the dissemination of sexual material had been dealt with in collaboration with the host site. It stressed that the continual monitoring for pornographic material on the Internet and closure of websites hosting such material. SENAME had also run a campaign for children, parents and teachers on safe Internet usage. The evaluation of this programme was very positive and they would be glad to continue it.