CRC/C/98/D/209/2023

GE.25-02713 (E) 130325 140325

Committee on the Rights of the Child

Decision adopted by the Committee under the Optional

Protocol to the Convention on the Rights of the Child on

a communications procedure, concerning communication

No. 209/2023*, **, ***

Communication submitted by:

A.D.H.L. (represented by the Centre for Human

Rights of the Pontifical Catholic University of

Ecuador)

Alleged victim:

The author

State Party:

Ecuador

Date of communication:

20 October 2022 (initial submission)

Date of adoption of decision:

24 January 2025

Subject matter:

Degree of specialization of the juvenile justice

system

Procedural issues:

Abuse of right of submission; insufficient

substantiation; exhaustion of domestic remedies

Articles of the Convention:

6, 24, 37 (c) and 40 (3)

Articles of the Optional Protocol:

7 (c) and (f)

* Adopted by the Committee at its ninety-eighth session (13–31 January 2025).

** The following members of the Committee participated in the examination of the communication:

Suzanne Aho, Aïssatou Alassane Sidikou, Thuwayba Al Barwani, Hynd Ayoubi Idrissi, Mary Beloff,

Rinchen Chophel, Rosaria Correa, Bragi Gudbrandsson, Philip Jaffé, Sopio Kiladze, Benyam Dawit

Mezmur, Otani Mikiko, Luis Ernesto Pedernera Reyna, Ann Skelton, Velina Todorova, Benoit Van

Keirsbilck and Ratou Zara.

*** An individual opinion by Committee member Ann Skelton (concurring) is annexed to the present

decision.

United Nations

CRC/C/98/D/209/2023

Convention on the

Rights of the Child

Distr.: General

4 March 2025

English

Original: Spanish

CRC/C/98/D/209/2023

2

GE.25-02713

1.

The author of the communication is A.D.H.L., born on 20 August 2002. The author

claims that the State Party has violated his rights under articles 6, 24, 37 (c) and 40 (3) of the

Convention. The Optional Protocol entered into force for the State Party on 19 September

2018.

Factual background

2.1

In 2018, A.D.H.L., who was then 16 years old, was charged with the rape of a

12-year-old girl. The charge was based on article 171 of the Organic Comprehensive

Criminal Code of Ecuador, which establishes that the crime of rape is punishable by a term

of imprisonment of 19 to 22 years when the victim is under 14 years of age. The criminal

proceedings began in February 2019 and the trial hearing was held in October 2020. On

31 December 2020, the reporting judge of the Juvenile Division of Guayaquil Court found

the author guilty of rape on account of the victim’s age (under 14 years old). The judge also

ruled that it had not been demonstrated that the author had used violence against the victim

and handed down the following rehabilitative measures: (a) house arrest for two years;

(b) full reparation in favour of the victim; (c) a ban on making any public statements about

the victim; and (d) regular house visits by the National Police.

2.2

On 31 October 2020, the public prosecutor and the victim’s lawyer lodged an appeal,

arguing that the rehabilitative measures imposed by the trial judge were inconsistent with

article 385 (3) of the Code on Children and Adolescents, which provides that: “In the case of

offences punishable [under the Criminal Code] by imprisonment for over 10 years, a

reprimand and placement in an institution for 4 to 8 years shall be applied.” On 19 April 2021,

the Specialized Division for Family, Children, Adolescents and Juvenile Offenders of the

Provincial Court of Guayas amended the trial court’s judgment, handing the author a

reprimand and sentencing him to placement in an institution for 8 years, on the ground that

he had committed an offence punishable by deprivation of liberty for over 10 years; the judge

also awarded the victim compensation, ordered the author to participate in a rehabilitation

programme and resume his studies and arranged for the victim to receive psychological

support.

2.3

On 26 April 2021, the author’s mother filed an appeal on points of law alleging a

violation of the specialized regulations on juvenile justice and arguing that the appellate court

lacked specialization in juvenile justice, in violation of the defendant’s rights, and also that

the appellate court’s decision was not properly substantiated. On 13 October 2021, the

Specialized Division for Family, Children, Adolescents and Juvenile Offenders of the

National Court of Justice annulled the appellate court’s decision for lack of substantiation

and amended the rehabilitative measures imposed to: (a) a reprimand; (b) placement in an

institution for 5 years, discounting time served; (c) mandatory participation in sexual

education programmes; (d) compensation for the victim; (f) victim protection measures; and

(g) psychological support for the victim. The Court based its decision on the need to consider,

in determining the nature and duration of rehabilitative measures, the principle of the

application of criminal law as a last resort. The Court also pointed out that restorative juvenile

justice requires the implementation of a progressive delinquency prevention policy and the

systematic analysis and development of measures that avoid criminalizing and penalizing the

adolescent for conduct that does not cause serious damage to his or her development, nor

harm others, with a view to the protection of the welfare, development, rights and interests

of all young people.

2.4

On 24 January 2022, the Constitutional Court dismissed the application for a special

protective remedy submitted by the author’s mother. According to the Court, this application

was based on dissatisfaction with the rehabilitative measures imposed on the author and

failed to provide legal justification to support the claims presented or demonstrate a direct

and immediate violation of the author’s constitutional rights as a result of the judicial action

or inaction complained of. On 16 June 2022, the case file for this appeal on points of law was

shelved.

Complaint

3.1

The author claims that the absence of competent judges in the court of appeal and the

court ruling on points of law violated his rights under article 40 (3) of the Convention. These

CRC/C/98/D/209/2023

GE.25-02713

3

courts lacked the necessary specialization in juvenile justice. According to the author, the

Organic Code on Children and Adolescents and the Convention call for specialized systems

adapted to the age and development of the child. The absence of judges specializing in

juvenile justice undermined his right to due process, as the judicial decisions rendered did

not adequately take into consideration his situation as an adolescent or the best interests of

the child, which resulted in disproportionately punitive sanctions instead of corrective

measures prioritizing his rehabilitation. In addition, the author alleges that the measure of

placement in an institution does not comply with the principle of the application of criminal

law as a last resort, in violation of the regulations prioritizing alternative measures for

adolescents.

3.2

The author also alleges that the detention conditions in Guayaquil Detention Centre

are inadequate, which has had an effect on his physical and mental health, in violation of his

rights under articles 6, 24 and 37 (c) of the Convention. The author claims to have been

subjected to and witnessed acts of violence during his placement, aggravating the

deterioration of his mental health.

3.3

The author requests the Committee to uphold the decision of the trial court, which

imposed house arrest, and to ensure the protection of his rights through less harmful measures.

He also calls for a review of the conditions in detention centres for adolescents.

State Party’s observations on admissibility

4.1

In its observations of 3 March 2023, the State Party argues that the communication is

inadmissible under article 7 (c) of the Optional Protocol as it constitutes an abuse of the right

of submission of communications. The State Party argues that the author has failed to

demonstrate that his rights were violated in the judicial proceedings and expects the

Committee to act as an appellate body for a domestic decision, which falls outside of the

scope of its mandate in accordance with the Optional Protocol.

4.2

The State Party also claims that the communication is inadmissible because it is

insufficiently substantiated, in accordance with article 7 (f) of the Optional Protocol. The

State Party argues that the entirety of the author’s trial was conducted within a specialized

system, which it asserts was adequate and effective. According to the State Party, the author

does not clearly indicate in what sense he was not tried before a specialized system and, from

a review of the case file, it cannot be concluded that the authorities responsible for trying the

author lacked competence. The State Party argues that the communication is based on the

author’s dissatisfaction with the judgments handed down and fails to demonstrate that he was

not tried by a competent court.

4.3

The State Party claims that, during all stages of the judicial proceedings, due process

was upheld in respect of the author. It argues that the measures imposed by the domestic

courts, including the court of appeal and the court ruling on points of law, were proportional

to the gravity of the crime and based on the facts and evidence presented and that the

procedural guarantees established in domestic law and international standards were respected.

The State Party argues that the judges correctly applied the Comprehensive Organic Criminal

Code and the Organic Code for Children and Adolescents and acted in accordance with the

regulations in force, and that their decisions reflect a reasoned analysis of the facts and the

applicable law. The State Party maintains that the appeal and application for review on points

of law lodged by the author were decided upon by specialized divisions for the family,

children, adolescents and juvenile offenders of the provincial and national courts. The

National Court of Justice annulled the challenged decision and amended the rehabilitative

measure imposed to 5 years’ placement in an institution.

4.4

Regarding conditions in the detention centre, the State maintains that they meet the

minimum standards for adolescents in conflict with the law. It further argues that the

necessary care has been provided to protect the physical and psychological integrity of the

author.

CRC/C/98/D/209/2023

4

GE.25-02713

Author’s comments on the State Party’s observations on admissibility

5.1

On 26 June 2023, the author submitted his comments on the State Party’s observations.

The author cites the jurisprudence of the Constitutional Court,1 which establishes that judicial

officials specialized in juvenile justice must have knowledge of the rights of children and

adolescents, a clear understanding of the differences between juvenile justice and adult

criminal justice and a commitment to the restorative purposes of the process.2

5.2

The author reiterates that the decisions handed down by the court of appeal and the

court that ruled on points of law imposed punitive measures, without assessing his social

background, age or personal circumstances, in violation of the principles of proportionality,

application of deprivation of liberty as an exceptional measure and the best interests of the

child. The author alleges that his appeal and application for review on points of law were

resolved by judges who do not specialize exclusively in juvenile justice. The author alleges

that the judges of the Specialized Division for Family, Children, Adolescents and Juvenile

Offenders of the Provincial Court of Guayas lacked the necessary qualities and knowledge

in matters related to children and adolescents and that the judges of the National Court of

Justice do not have exclusive jurisdiction in juvenile justice, nor are they permanent judges

in this field, but act as “temporary judges” seconded from other divisions (for example,

criminal or labour) and therefore cannot be considered to be specialized judges.

Additional submissions by the parties

6.1

In its observations of 16 October 2024, the State Party reiterates that the author was

tried within a specialized juvenile justice system throughout all stages of the criminal

proceedings and in all instances where appeals were filed. The State Party argues that the

author does not raise issues related to the lack of a trial before a specialized system, but rather

claims that the right to the specialization of justice of children and adolescents was violated,

without differentiating between the existence of a specialized system of justice and the degree

of specialization of the justice system, and that his real issue lies with his dissatisfaction with

the judicial decisions themselves.

6.2

The State Party argues that the appeal court’s decision amended the trial court’s

judgment, demonstrating a differentiation in the criminal justice system and taking into

account criminal law norms and child-specific legislation, the severity of the crime, the legal

right violated and the best interests of both the victim and the perpetrator. According to the

State Party, the National Court of Justice amended the nature and duration of rehabilitative

measures imposed on the basis of the principles of the best interests of the child,

proportionality, minimal intervention and due process, emphasizing that both ordinary and

specialized legislation classify rape as a serious offence.3 In addition, the State Party points

out that the Constitutional Court determined that, in its opinion, the courts involved took

strict rehabilitative measures in the light of the reality and social circumstances of the juvenile

offender.4

6.3

The State Party argues that it works progressively within its justice system to

implement differentiated approaches. It notes that the Council of the Judiciary issued decision

No. 152-2019 approving the implementing regulations for Constitutional Court judgment

No. 9-17-CN/19, which provides for a specialized juvenile justice system. Judges

specializing in issues pertaining to the family, women, children and adolescents are

responsible for conducting impartial and specialized trials. In 2024, the State Party had

1 “A judicial official is specialized in juvenile offenders if he or she possesses certain qualities:

(1) knowledge of children’s rights and comprehensive protection doctrine; (2) an understanding of the

distinction between juvenile justice and other forms of justice, particularly adult criminal justice;

(3) commitment to the purposes of the juvenile justice process”, judgment No. 9-17-CN/19, para. 42.

2 General comment No. 24 (2019) on children’s rights in the child justice system.

3 National Court of Justice, decision of appeal on points of law, case No. 09965-2019-00028,

13 October 2021.

4 Constitutional Court, order dismissing the application for a special protective remedy, case

No. 3102-21-EP, 24 January 2022.

CRC/C/98/D/209/2023

GE.25-02713

5

52 specialized judicial units and 120 multipurpose judicial units in its juvenile justice system,

with a total of 569 judges.5

Issues and proceedings before the Committee

Consideration of admissibility

7.1

Before considering any claim contained in a communication, the Committee must

decide, in accordance with rule 20 of its rules of procedure under the Optional Protocol to

the Convention, whether the communication is admissible under the Optional Protocol.

7.2

The Committee notes the author’s claims under article 40 (3) of the Convention

related to the alleged lack of specialization in juvenile justice of both the judges of the

Specialized Division for Family, Children, Adolescents and Juvenile Offenders of the

Provincial Court of Guayas and the judges of the National Court of Justice, which meant that

these judges did not adequately consider his status as a minor at the time of the commission

of the offence and did not apply criminal law as a last resort. The Committee also notes the

State Party’s argument that the author has not demonstrated the existence of a rights violation

arising from the judicial proceedings, nor indicated in what sense he was not tried before a

specialized system, and that the communication is based on the author’s dissatisfaction with

the judgments rendered and fails to demonstrate that he was not tried by a competent court.

7.3

Recalling the importance of ensuring a comprehensive juvenile justice system,6 the

Committee notes that the State Party has a specialized juvenile justice system, through which

judges are assigned to courts and divisions specializing in the family, women, children and

adolescents. It also notes that, in the present case, the author was tried by judges specializing

in juvenile justice and that the appeal and application for review on points of law lodged by

the author were ruled upon by the Specialized Division for Family, Children, Adolescents

and Juvenile Offenders of the Provincial Court and the National Court of Justice, respectively,

and that no specific information has been provided to refute the claim that these judges lacked

specialization.

7.4

As to the alleged failure to take into account his status as a juvenile offender in the

determination of his sentence, the Committee recalls that, as a general rule, it comes under

the jurisdiction of the national courts to examine the facts and evidence and to interpret

domestic law, unless such examination, interpretation or application is clearly arbitrary or

amounts to a denial of justice.7 In the present case, the Committee notes that the judgments

of the courts of first instance and appeal and the court ruling on points of law took the author’s

status as a minor into account and applied the national regulations in force in the area of

juvenile justice, in particular article 385 (3) of the Code on Children and Adolescents, which

regulates the measures that may be imposed on juvenile offenders for serious crimes. The

Committee observes that the judges in question decided on rehabilitative measures, which

included a reprimand and placement in an institution, taking into account the severity of the

crime and the principles of proportionality, the application of criminal law as a last resort and

the best interests of the child.

7.5

In the absence of additional information showing how the author’s right to specialized

justice and the procedural guarantees established in article 40 (3) were violated, the

Committee considers that the present complaint has not been sufficiently substantiated and

declares it inadmissible in accordance with article 7 (f) of the Optional Protocol.8

7.6

With regard to the author’s claims under articles 6, 24 and 37 (c) of the Convention,

relating to the harm to his physical and mental health caused by inadequate conditions at

Guayaquil Detention Centre, the Committee is of the view that the author has presented these

claims in a general manner, without specifying to what extent his rights under these

provisions have been violated. The Committee therefore finds that these claims are

5 CRC/C/ECU/7, para. 165.

6 General comment No. 24 (2019) on children’s rights in the child justice system, paras. 105 and 106.

7 See, inter alia, the Committee’s decision in U.A.I. v. Spain (CRC/C/73/D/2/2015), para. 4.2.

8 Ibid.

CRC/C/98/D/209/2023

6

GE.25-02713

manifestly ill-founded and declares them inadmissible under article 7 (f) of the Optional

Protocol.

8.

The Committee therefore decides:

(a)

That the communication is inadmissible under article 7 (f) of the Optional

Protocol;

(b)

That the present decision shall be transmitted to the author of the

communication and, for the record, to the State Party.

CRC/C/98/D/209/2023

GE.25-02713

7

Annex

[Original: English]

Individual opinion of Committee member Ann Skelton

(concurring)

1.

I agree with the reasoning, and with the finding of inadmissibility.

2.

However, in my view, it is regrettable that the author did not bring a claim under

article 37 (b) of the Convention.

3.

In this matter, the author faced a statutory rape charge under article 171 of the Organic

Comprehensive Criminal Code of Ecuador, under which the punishment for rape is a term of

imprisonment of 19 to 22 years in cases including when violence, threats or intimidation have

been used, or when the victim is under 14 years of age. In this case, no violence was used,

but the victim was 12 years old, which brought the offence within the purview of article

37 (b).

4.

The first point to consider, therefore, is whether the practice of charging children

under article 171 of the Organic Comprehensive Criminal Code of Ecuador, which carries a

lengthy minimum sentence, is compliant with article 37 (b) which stipulates that detention is

to be used as a measure of last resort, and for the shortest appropriate period of time. In order

to fully understand the factors at play, however, one has to consider other legal provisions

that were invoked at the different levels of the process.

5.

The trial court that set the initial sentence ignored the minimum sentence rule and

handed down a community-based sentence comprised of various measures. In the appeal of

this decision to the Specialized Division for Family, Children, Adolescents and Juvenile

Offenders of the Provincial Court of Guayas, the prosecutor argued that the rehabilitative

measures imposed by the trial judge were inconsistent with article 385 (3) of the Code on

Children and Adolescents, which provides that: “In the case of offences punishable [under

the Criminal Code] by imprisonment for over 10 years, a reprimand and placement in an

institution for four to eight years shall be applied.” The appeal judge then set the maximum

term of deprivation of liberty, which was eight years. Finally, on 13 October 2021, the

Specialized Division for Family, Children, Adolescents and Juvenile Offenders of the

National Court of Justice annulled the appellate court’s decision for lack of substantiation

and amended the rehabilitative measures imposed to placement in an institution for five years,

together with various other measures.

6.

The first observation that must be made about this journey through three tiers of

domestic courts is that the system is overshadowed by the general statute under which the

author was charged. It sets a very high minimum sentence of imprisonment 19 to 22 years

for the offence. I recognize that the harshness of this is attenuated by article 385 (3) of the

Code on Children and Adolescents, which provides for a reprimand and placement in an

institution for four to eight years to be applied in cases for which an adult would be sentenced

to 10 years or more. This is certainly a positive factor. Furthermore, the Specialized Division

for Family, Children, Adolescents and Juvenile Offenders, in the final appeal in this matter,

reportedly based its decision on “the principle of the application of criminal law as a last

resort” and on “a restorative justice approach”.

7.

In my view, there is a major disconnect between article 37 (b) of the Convention and

this legal regime, which starts from a long minimum sentence, and then allows courts to work

their way backwards by providing justifications for lower sentences. Although article 385 (3)

of the Code on Children and Adolescents requires sentences of between four and eight years

for offences that attract sentences of more than 10 years for adults, that is still problematic,

as it sets a minimum sentence of four years. Any minimum sentence that is set in the law

restricts the sentencing discretion of the court, thus making detention of four years the first

resort, rather than allowing for detention as a measure of last resort. This is compounded

when one is already working backwards from a lengthy minimum sentence applicable to

adults, and may explain why the Specialized Division for Family, Children, Adolescents and

CRC/C/98/D/209/2023

8

GE.25-02713

Juvenile Offenders of the Provincial Court of Guayas, in the first appeal in this matter, set

the maximum period of eight years.

8.

This case demonstrates, therefore, why minimum sentences do not allow for the full

implementation of article 37 (b) – namely, detention as a measure of last resort and for the

shortest appropriate period of time.

9.

In paragraph 78 of its general comment No. 24 (2019) on children’s rights in the child

justice system, the Committee observed as follows: “Mandatory minimum sentences are

incompatible with the child justice principle of proportionality and with the requirement that

detention is to be a measure of last resort and for the shortest appropriate period of time.

Courts sentencing children should start with a clean slate; even discretionary minimum

sentence regimes impede proper application of international standards.”

10.

A clean slate approach allows a court to properly apply the principle that no child

should be detained or imprisoned, except as a measure of last resort. Having decided that, in

a particular case, deprivation of liberty was unavoidable given the other competing interests

that must be weighed, the court must then move on to deciding on the shortest appropriate

period of time. In this case, the decision by the Specialized Division for Family, Children,

Adolescents and Juvenile Offenders of the National Court of Justice had its hands tied by the

law, which did not permit a sentence of less than four years.

11.

If a violation of article 37 (b) had been found, a suitable remedy to prevent future

violations would have been a recommendation to the State Party to consider amending its

law to ensure that children are not tried under general laws that link to lengthy minimum

sentences, and also to reconsider article 385 (3) of the Code on Children and Adolescents

since it sets a minimum sentence of four years, thus impeding the proper application of article

37 (b) of the Convention.