Court/Judicial body: Supreme Court of Argentina
Date: 22 December 2009 CRC
Provisions: Article 9: Separation from parents
Domestic provisions: Argentine Constitution Law 24,767 on international cooperation in criminal matters
Background: The United States was seeking the extradition of a minor residing in Argentina who had been convicted of conspiracy to possess the drug “ecstasy” with an intent to distribute. If extradited, the minor would serve 51 months in a U.S. prison and afterwards have 36 months of probation. The lower court approved the extradition, but the family of the child appealed claiming that the extradition would be inhuman, cruel and degrading, and that it would be in the child’s best interests to be incarcerated in Argentina so that he could be closer to his family.
Issue and resolution: Extradition; children in conflict with the law. The child’s rights would not be violated because the CRC recognises that incarcerated children may be separated from their parents.
Court reasoning: Because there is no reason to suspect that the child’s sentence is cruel and degrading, and because the Convention of the Rights of the Child specifically recognizes that it is not a violation of the child’s best interests to separate a child from his parents if the child is incarcerated, the extradition order should be approved and the child should serve his time in prison in the United States. However, the Argentine magistrate in this case should try to coordinate with the U.S. authorities to count the time the child has already been detained while these extradition proceedings have been in process as part of the sentence to be fulfilled in the U.S.
Excerpt citing CRC and other relevant human rights instruments as translated by CRIN: 5)The Convention on the Rights of the Child justifies the separation between parent and son when ‘such separation results from any action initiated by a State Party, such as the detention, imprisonment, exile, deportation or death (including death arising from any cause while the person is in the custody of the State) of one or both parents or of the child’ ( Article 9.4). … 8) Principles of equity and justice support recognizing the rules of international human rights that are applicable to [Argentina]…
CRIN comments: CRIN believes this decision is inconsistent with the CRC. While the Convention recognises that children may be separated from their parents due to incarceration or other actions taken by a State, it does not justify these actions. Children should be detained for the shortest appropriate period of time in circumstances designed to facilitate their rehabilitation and reintegration as full members of society. Here, it would seem clear that the child’s interests would be better served by remaining in his home country of Argentina.
Citation: S. 780. XLIV.
Link to full judgement: Download via CRIN link [Download here via http://www.csjn.gov.ar/cfal/fallos/cfal3/cons_fallos.jsp]