Distr.

GENERAL

CRC/C/8/Add.2
23 August 1993

ENGLISH
Original: SPANISH
Initial reports of States parties due in 1993 : Argentina. 23/08/93.
CRC/C/8/Add.2. (State Party Report)



COMMITTEE ON THE RIGHTS OF THE CHILD

CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES
UNDER ARTICLE 44 OF THE CONVENTION

Initial reports of States parties due in 1993

Addendum

ARGENTINA

[17 March 1993]
CONTENTS

Paragraphs
INTRODUCTION
14
I. GENERAL PRINCIPLES AND GENERAL LEGAL FRAMEWORK
5 - 28
II. DEFINITION OF THE CHILD
29 - 31
III. GENERAL PRINCIPLES
32 - 64
Non-discrimination. The best interests of
the child. Measures to promote health.
Development
32 - 39
Measures to protect the health and development
of children and mothers
40 - 54
Family environment and alternative care.
Measures to protect children and young persons
55 - 64
IV. CIVIL RIGHTS AND FREEDOMS
65 - 69
V. FAMILY ENVIRONMENT AND ALTERNATIVE CARE. BASIC
HEALTH AND WELFARE. EDUCATION, LEISURE AND
CULTURAL ACTIVITIES. SPECIAL PROTECTION MEASURES
70 - 121
Prevention programme for subsidized families
75 - 76
Emergency housing subsidy scheme
77 - 78
Community care for disabled persons scheme
79 - 80
Interdisciplinary approach to visual
disability programme
81
HIV infection control and prevention programme
82 - 83
Disabled children
84 - 90
Measures to protect children and young
persons from economic exploitation
91 - 95
External temporary fostering scheme
96
External temporary fostering scheme for
children requiring special care
97 - 99
Small hostels scheme
100 - 101
Foster-families scheme
102 - 103
Study scholarship programme
104 - 105
Continuing education and preparation
for employment programme
106 - 107
Young offenders
108 - 114
Orientation and referral programme of the
Centre for the Care of Minors in Transit
115
Assisted freedom scheme
116 - 117
Other activities
118 - 121
VI. CONCLUSIONS
122 - 126
List of annexes



INTRODUCTION


1. In accordance with the provisions of article 44 of the Convention on the Rights of the Child, the present initial report on the measures taken to give effect to the rights recognized in the Convention and on the progress made with regard to the enjoyment of those rights is hereby presented to the Committee on the Rights of the Child through the Ministry of Health and Social Welfare.

2. Argentina ratified the Convention on the Rights of the Child, which was adopted by the United Nation General Assembly on 20 November 1989, by Act No. 23,849 of 4 December 1990, with the observations set forth in article 2 thereof.

3. In accordance with the provisions of article 44 (2) of the Convention, the degree of fulfilment of the obligations under the Convention is indicated and information to provide the Committee with a comprehensive understanding of its implementation in Argentina is supplied. The report has been drawn up in accordance with the directions given in the document containing the general guidelines regarding the form and content of reports to be submitted by States parties (CRC/C/5).

4. In accordance with the guidelines for the submission of reports on the measures taken as from the date of Argentina's ratification of the Convention (4 December 1990), information is now supplied in respect of articles 5, 6, 9 to 11, 18 (1, 2 and 3), 19 to 21, 23 to 27, 33 to 36, 38 and 39, which lies within the exclusive competence of this body.


I. GENERAL PRINCIPLES AND GENERAL LEGAL FRAMEWORK


5. Argentina's National Constitution, adopted by the Constituent General Congress on 1 May 1853 and amended by the Ad Hoc National Conventions of 25 September 1860, 1898 and 1957, is the supreme legal instrument governing the political, social and civil organization of the Argentine people.

6. Article 31 of the Constitution in force establishes a kind of legal pyramid in stating: "This Constitution, the laws of the Nation adopted pursuant to it and agreements with foreign Powers are the supreme law of the Nation ...".

7. The first part of the Constitution, in the sole chapter entitled "Declarations, rights and guarantees", contains articles of very different kinds designed to set forth the republican, representative, federal and democratic form of government which the Nation has adopted; others are designed to establish the organization and responsibilities of the public authorities and the conditions governing the autonomy of the provinces which make up the Nation and the guarantee of the enjoyment of political autonomy (art. 104), in so far as it stipulates that they retain any power that is not expressly delegated by the Constitution to the Federal Government.

8. Individual and social rights are defined and regulated explicitly and implicitly (arts. 14 to 33), as well as some other rights whose special purpose has been determined by the historical background.

9. The form of government adopted by the Argentine Nation is a Federal regime in conformity with the Constitution. Substantive law, codes or basic national laws provided for in article 67 (II), of the Constitution are the responsibility of the Congress of the Nation (for example, Civil, Penal, Labour and Social Security Codes). On the other hand, the provinces draw up their own constitutions, their adjective law, legislation governing the organization of the administration of justice and codes of procedure, appoint their own officials, and so on.

10. The Argentine State consists of the Nation, a Federal District and 23 provinces and their municipalities, which are public corporations of necessary existence. The municipal system is secured and guaranteed by the Constitution. The laws of the Nation apply throughout the territory of Argentina, but their application in the provinces is the responsibility of the provincial judiciary, except for federal legislation, which is the responsibility of the federal Judiciary in conformity with the provisions of the Constitution.

11. The codes and national laws referred to in article 67 of the Constitution cover all matters relating to civil, criminal, labour and social-security law, and apply throughout the country, without prejudice to the competent courts of justice responsible for their enforcement. The national and provincial authorities exist side by side, but the application and interpretation of the law is the responsibility of the provincial judiciaries, except in federal cases. Nevertheless, when some right, declaration or constitutional guarantee is violated, the Supreme Court of Justice of Argentina, which has judicial control over constitutionality and all other authorities of the State, intervenes, not as a court of cassation but through a special remedy under article 14 of Federal Act No. 48.

12. It must be pointed out that, without prejudice to what is laid down in general legal provisions such as the Civil Code, the Labour and Social Security Code, multilateral and bilateral international agreements ratified by the national Government, and national laws and special substantive and procedural laws to which reference will be made later on, article 14 bis expressly provides for the comprehensive protection of the family, the defence of family property, financial compensation for families and access to decent housing. The State will grant comprehensive and non-renounceable social security benefits.

13. Article 14 of the Constitution, which was supplemented by article 14 bis of the Constitutional Reform Act of 1957, is concerned with citizen's rights, their regulation and the prevention of abuses against them. Article 28 adds that "The principles, guarantees and rights recognized in the foregoing articles may not be amended by the laws regulating their exercise". The Constitution is the supreme instrument containing the main principles of government and outlining the guarantees of political and civil freedom.

14. The drafters of the Constitution could not enter into detail or foresee all the particular cases that would arise in applying the basic norm intended to govern the life of the country over the course of time. For that purpose the regulation of individual rights by legislation is necessary. Nevertheless, if a law regulating the exercise of a right has altered its nature and practical meaning, thus violating the constitutional guarantee that protects it, the courts will declare the supremacy of the Constitution and declare the law involved null and void.

15. Article 18 of the Constitution states, in its final part: "The prisons of the Nation shall be healthy and clean, for the safety and not for the punishment of the prisoners detained therein, and any measure that, on the pretext of a precautionary action, leads to any modifications beyond what is required by it shall engage the responsibility of the judge who authorized it."

16. Article 33 of the Constitution states: "The declarations, rights and guarantees enumerated in the Constitution shall not be construed as negating other rights and guarantees which are not enumerated therein but which arise from the principle of the sovereignty of the people and the republican form of government." The institutional importance of this article is considerable, since it prevents any claim that might be made by the public authorities to disregard or deny rights not enumerated but recognized by the people.

17. Within the legal framework, mention should be made of the international and regional mechanisms for protecting human rights that shape Argentina's domestic legislation, since Argentina has ratified agreements and conventions designed to promote the protection of families, mothers and children and the right to physical and mental health, especially in the case of children.

18. Among the conventions ratified, the one we consider most important for the protection of children, their social, civil, political, economic and cultural rights, and their right to life and physical and mental health is the Convention on the Rights of the Child, ratified by Argentina's constitutional Government with a reservation in respect of article 2, as introduced by Act No. 23,849.

19. In 1985 the American Convention on Human Rights, or "Pact of San José, Costa Rica", entered into force for Argentina, which also recognized the jurisdiction of the Inter-American Court of Human Rights.

20. The International Convention on the Suppression and Punishment of the Crime of Apartheid was ratified on 7 November 1985, the Convention on the Elimination of All Forms of Discrimination against Women having been ratified on 14 August of the same year.

21. On 24 September 1986, the instrument of ratification of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, recognizing the competence of the Committee against Torture to receive communications from individuals, was deposited.

22. The two Protocols Additional to the Geneva Conventions of 12 August 1949 were also approved, the instrument of ratification having been deposited on 26 November 1986.

23. Act No. 23,160 lifted the geographical reservation to the Convention relating to the Status of Refugees, so that the benefits of refugee status are now granted to persons coming from any part of the world.

24. On 8 August 1986, the International Covenant on Civil and Political Rights and the Optional Protocol thereto, and the International Covenant on Economic, Social and Cultural Rights were ratified.

25. All these multilateral agreements are without prejudice to the bilateral treaties entered into by Argentina, such as the agreement with Uruguay on the protection of minors, which deals in particular with the return of minors.

26. For everything relating to the implementation of the International Covenant on Civil and Political Rights, the judicial, administrative or other authorities having jurisdiction in human rights matters, the remedies that may be applied for by a person who claims that any of his rights has been violated, and other measures that have been adopted to guarantee implementation of the Covenant, we refer readers, for the sake of brevity, to Argentina's initial report of 11 April 1989 (CCPR/C/45/Add.2, paras. 10-31).

27. Nevertheless, we should mention the exceptional importance of Presidential Decree No. 1606/90, which establishes the National Council for Children and the Family. It should be pointed out that, in order to improve compliance with, and implementation of, the rights of the child, technical cooperation has taken place through the Federal Agreement on the Protection of Children and the Family.

28. The National Government, through the Ministry of Health and Social Welfare, recently convened a meeting of all provincial governments and the municipality of the City of Buenos Aires for the purpose of developing coherent policies for the comprehensive protection of children and young persons throughout the country.


II. DEFINITION OF THE CHILD


29. Article 1 of Act No. 23,849, approving and ratifying the Convention, states: "The Convention on the Rights of the Child, adopted by the United Nations General Assembly in New York, in the United States of America, on 20 November 1985 and consisting of 54 articles, an authenticated photocopy of which in the Spanish language forms part of the present Act, is hereby approved". Under article 2 of the Act, ratification of the Convention is to be accompanied by the following reservations and declarations: "The Republic of Argentina enters a reservation in respect of article 21, paragraphs (b), (c), (d) and (e) ...". In connection with article 1 of the Convention on the Rights of the Child, Argentina declares that the article should be interpreted in such a way that by a child is meant any human being from the time of conception up to the age of 18 years.

30. This interpretation is consistent with the positive law in force and with Argentine internal public order, since the Civil Code and Act No. 23,264 relating to filiation and parental authority (art. 264) provide that parental authority is the body of duties and rights incumbent on parents in respect of the persons and assets of their children for their protection and comprehensive upbringing from the time of their "conception and continuing for as long as they are under legal age and have not been emancipated".

31. Furthermore, Argentina ratified the American Convention on Human Rights ("Pact of San José, Costa Rica") by Act No. 23,054 which refers to "a human being, generally from the time of conception".


III. GENERAL PRINCIPLES

Non-discrimination. The best interests of the child.
Measures to promote health. Development


32. From a philosophical standpoint, the law considers the supreme value to be the "child's intrinsic right to life" and establishes criminal penalties for any attempt to jeopardize the physical, mental and moral integrity of the child from the time it is conceived. In this connection, the Convention on the Rights of the Child refers to the "best interests of the child" (art. 3; see also Act No. 23,849), a "child" being understood to mean any human being from the time he or she is conceived up to the age of 18 years.

33. Article 14 bis of the Argentine Constitution is expressly intended to promote the comprehensive protection of the family:

This means that the national, provincial and municipal authorities must ensure that these constitutional guarantees and rights are given priority, without any discrimination with regard to the type of matrimonial or extra-matrimonial family concerned.

Act No. 23,264

34. Article 240 of Act No. 23,264, amending the Civil Code, abolished any type of discrimination with regard to filiation by placing on an equal footing children born within and out of wedlock and fully adopted children for all civil purposes.

35. All these legal provisions are related to, and in harmony with, the text of the Constitution.

Act No. 23,302

36. It should be emphasized that, under Act No. 23,302 promulgated on 8 November 1985:

The relevant constitutional provision was brought into line with domestic legislation for the protection of, and respect for, the organization and values of the indigenous family.

With the aim of promoting and developing a better system of care for families or family members at risk, the National Executive Authority, through Decree No. 1606/90, established the National Council for Children and the Family, which has responsibility for the functions incumbent on the State with regard to the development of children and the family. It is required to adopt the necessary measures to contribute to the consolidation and integration of the family, and also to the comprehensive protection of children, and disabled and elderly persons who have been abandoned or are in a state of moral or material danger.

Decree No. 1606/90

37. Of this Decree we would cite the following articles specifically relating to the question under consideration:

Art. 14.

II. Prevention and treatment of abandonment

III. Prevention and treatment of family violence

IV. Family development

Act No. 23,637

38. By Act No. 23,637 (Civil courts with competence with regard to the family, status, name and capacity), the following was decided:

Juvenile courts. Act No. 10,067/83

39. Several provinces have established the special jurisdiction of juvenile courts. Under the Care Act (No. 10,067/83), in most cases the juvenile courts are competent in criminal, civil and assistance matters, except in a few provinces such as Santiago del Estero, where the juvenile courts are competent only in civil and assistance matters, criminal matters being heard by the ordinary courts.

Art. 10. The juvenile courts shall be competent:

Measures to protect the health and development of children
and mothers


40. The Employment Contracts Act (No. 20,744), as amended by Act No. 21,824, provides for 45 days of prenatal maternity leave and 45 days of postnatal maternity leave.

41. In accordance with article 158 of the same Act:

(a) On the birth of a child, two consecutive days;

(c) On the death of his spouse or of the person who lives with him as his wife, in accordance with the conditions laid down in this Act on the death of a child or a parent, three consecutive days;

(e) To take a secondary or university examination, two consecutive days for each examination, up to a maximum of 10 days per calendar year."

42. Articles 174 and 175 state:

43. Crèches are provided for by law in the case of undertakings employing a minimum number of women as determined by the relevant regulations, but since these regulation have not been formally issued, they do not have binding legal force:

This does not mean that undertakings cannot have crèches on site or in a place determined by them for the children of female employees.

44. Act No. 21,297 relates to the system of family allowances for workers in respect of births, large families and schooling, and necessary medical and health care:

"Art. 88. The employer's obligation to pay in the social security funds and trade union contributions for which he is responsible, either on his own behalf or as an agent responsible for making deductions, shall also constitute a contractual obligation. The employer shall give the worker, when the latter so requests upon termination of the employment relationship, a documentary record of such payments. During the period of the relationship, he shall provide such a record whenever reasonable causes exist. When a contract of employment terminates for any reason, the employer shall be obliged to provide the worker with a certificate of employment containing details regarding his length of service, the nature of that service, and a record of the remuneration received and of the contributions paid to the social security authorities."

45. Article 79 of the Employment Contracts Act (No. 20,744) states:

46. The school meals programmes are directed towards mothers at risk.

47. Act No. 21,297 protects mothers against dismissal during and after the period of confinement:

48. Among the measures intended to protect mothers during the period before and after childbirth, particular mention may be made of Decree No. 1606/90, article 14 of which states:

"(a) Substantive areas:

I. Prenatal, perinatal and postnatal period

II. Prevention and treatment of abandonment

If abandonment cannot be avoided, it shall implement all programmes aimed at providing the child with a surrogate family environment. It shall, in particular, coordinate systems for dealing with the problems of children at risk, street children, and children exploited in terms of employment or in any other manner that jeopardizes their dignity."

49. Among the measures taken by the National Council for Children and the Family, we would mention the chief characteristics of the following programmes:

(a) Grants for crèches programme

50. In accordance with Decision No. 1285/79 of the SEAS, as amended by Order No. 55/90 of the SSMDTE, the programme's objectives and coverage are as indicated below:

(i) Objectives:

To encourage the removal of children from systems of institutionalization and alternative systems subordinate to this agency;

(ii) Persons entitled to benefit:

(c) Children of those family groups which because of an emergency (sickness, disability of one of the parents, loss of work) require assistance.

51. The programme was set up to meet the legal deficiency in this area and to protect family unity and the mother's employment. Various possibilities are available under the programme:

(i) The cost of a private crèche is paid to mothers with children under the age of five years;

(ii) Possibility of subsidies to enable a group of mothers acting jointly within a cooperative, association, etc., to form a self-managed or neighbourhood crèche. The National Council for Children and the Family provides assistance in the form of a subsidy for installation of the crèche and contributes the necessary technical advice and support.

(iii) Payment of a subsidy to a nanny, to enable the mother to continue working outside the home.

(b) Programme for the prevention of abandonment and protection of mothers at risk

52. In accordance with Order No. 178/91 of the National Council for Children and the Family, the programme's general and specific objectives are as indicated below:

(i) General objective:

To undertake a broad range of activities aimed at preventing abandonment and protecting children in physical, psychological or moral danger identified in public or private hospitals, priority being given to teenage lone mothers as their situation constitutes a first indicator of risk in the life of a child;

(ii) Specific objectives:

To give the mother timely information on her rights with regard to the recognition, care and maintenance of her child, ensuring proper professional attention;

To provide psycho-social attention for cases characterized by maladjustment of family dynamics, subsidizing treatment where appropriate;

To direct the necessary institutional resources to families with malnourished children;

To provide prompt and adequate training for hospital and health-centre personnel concerning the risk of severance of the mother-father-child link;

To provide advice to social and medical teams on all matters relating to protection of the mother-child link;

To promote the development of the potential of lone mothers by subsidizing them and guiding them towards employment in a context which preserves their physical and emotional integrity;

To facilitate the admission of lone mothers to governmental and non-governmental assistance centres, when particular circumstances so require;

To encourage the establishment of small self-managed hostels or homes for lone mothers and to encourage them to stay in them, providing support for the purpose of overcoming the conflicts which caused them to enter the said hostels or homes;

To motivate mothers to care for the health of their child and their own health through strict compliance with medical recommendations, paying particular attention to the early stimulation of their baby.

53. The National Council for Children and the Family has taken particular interest in the question of mothers at risk, whether the situation involves a lone-parent family, multiple births, a family with many children or, as frequently occurs in our country, a teenage mother. This concern is reflected in the Decree setting up a substantive department within the Council to deal with this question (Decree No. 1606/90, art. 14 (I), already cited in para. 48). The programme is administered by this department and provides for different forms of assistance to mothers from the time they learn of their pregnancy until their difficulties are overcome; an assistant will be appointed to monitor each case (psychologist, social worker, etc.). The programme operates both within the hospital context and outside it, in other words, in the family environment, and provides a substitute for the family environment where none exists.

54. As to special measures to assist mothers working on their own account or in a family business, there is no national legislation on this subject nor are there any specific measures designed to assist mothers in supporting their children in the event of the death or absence of their husbands. Nevertheless, the Civil Code establishes the obligation of the ascendants to provide for the maintenance of their grandchildren, especially where there is a need and resources are lacking.

Family environment and alternative care. Measures
to protect children and young persons


55. There is copious ordinary and special legislation relating to children and young persons, including the Civil Code, the Care of Children Act (No. 10,903) and the Adoption Act (No. 19,134). Below are some of the main provisions of this legislation.

56. Articles 264 et seq. of the Civil Code set forth the duties of the parents with respect to their children under the age of majority:

Art. 266. Children owe respect and obedience to their parents. Even if they are emancipated, they have an obligation to care for their parents in their old age or if they become insane or ill, and to provide for their needs in all the circumstances of life in which their assistance is essential to them. The other ascendants are entitled to the same care and assistance.

57. The Care of Children Act (No. 10,903) stipulates:

58. Act No. 13,944 refers to the penalties for non-performance of the duties of assistance to relatives:

59. Act No. 15,244 and successive amendments state:

60. Concerning adoption, Act No. 19,134 states:

61. Decree No. 1606/90 establishing the National Council for Children and the Family states:

62. Act No. 23,849 ratifies the Convention on the Rights of the Child, with the reservation stated in article 2.

63. Pursuant to Act No. 23,264 amending the Civil Code, any form of discrimination between children born within wedlock and out of wedlock was eliminated, and full adoption was given the same status as biological filiation.

The same Act establishes that both parents shall exercise parental authority on an equal basis (see art. 264 (1) and (2) quoted in para. 56 of this report).

64. Act No. 23,054 ratifies the American Convention on Human Rights (Pact of San José, Costa Rica).

IV. CIVIL RIGHTS AND FREEDOMS


65. In the first part of the Constitution, the single chapter sets forth the rights and freedoms referred to in articles 7, 8, 13, 14, 15, 17 and 18 of the Convention on the Rights of the Child.

66. The individual and social rights established in the Constitution are set forth below:

(a) Abolition of slavery. Article 15: "... A contract for the purchase or sale of persons constitutes a serious offence ...".

(b) Equality before the law. Article 16: quoted above (see para. 35).

(c) Right to own property. Article 17: "... Property is inviolable ...".

(d) Security. Article 18: quoted above (see para. 15)

(e) Personal rights. Article 19: "The private actions of men that in no way offend public order or morality nor injure a third party, shall be a matter for God alone and lie outside the competence of the Judiciary. No inhabitant of Argentina shall be obliged to do what the law does not command or be prevented from doing what it does not forbid".

(f) Aliens. Article 20: "Aliens enjoy, on Argentine territory, all the civil rights of a citizen. They may: engage in industry or business or practise a profession; own, purchase and dispose of real estate; navigate on rivers and along the coasts; freely practise their religion; make wills and marry according to the law. They are not obliged to acquire citizenship or to pay compulsory special taxes. They may obtain naturalization by residing for two continuous years in the Nation, but the authorities may shorten this period for any applicant who claims and proves that he has rendered services to the Republic."

(g) Defence of the country: Article 21: "Every Argentine citizen is obliged to bear arms in defence of the country and of this Constitution, in accordance with such laws as Congress may enact for this purpose and with the decrees of the National Executive. Citizens by naturalization are free to render this service or not for a period of 10 years calculated from the day on which they obtain their citizenship papers."

(h) Immigration. Article 25: "The Federal Government shall encourage European immigration, and may not restrict, limit or impose any tax on the entry into Argentine territory of aliens who arrive for the purpose of engaging in farming, improving industries, and introducing and teaching the arts and sciences".

(i) Supremacy of the Constitution. Article 31: quoted above (see para. 6).

(j) Freedom of the press. Article 32: The Federal Congress shall not enact laws that restrict the freedom of the press or establish federal jurisdiction over it".

Rights and guarantees. Article 33: quoted above (see para. 16).

67. There is currently a doctrinal and jurisprudential debate on whether the constitutional rights and guarantees are operational or programmatic. The debate has been of a historic nature as it has been considered that the rights and guarantees are not absolute and that the relevant laws and regulations must be consistent with articles 3 and 28 of the Constitution. In accordance with the most recent constitutional doctrine, it is held that these articles constitute jus cogens with binding force. Similar status must be accorded to the rights established in the international conventions adopted and ratified by the Argentine Republic (e.g. Act No. 23,054 ratifying the 1989 American Convention on Human Rights or Pact of San José, Costa Rica).

68. The Supreme Court of Justice in a very recent decision - in the Ekmedjian-Sofovich case, concerning the right of reply and rectification, ruled that since the Pact of San José of Costa Rica had become part of Argentine national law, its enforcement was binding and not programmatic. This interpretation and enforcement of the rights embodied in the international agreements and conventions approved and ratified by the Argentine Government would appear to be applicable to the Convention on the Rights of the Child (Act No. 23,849, except for the observations and interpretations referred to in article 2 of that Act).

69. It should be stressed in relation to civil rights and freedoms and articles 7, 8, 13, 14, 15, 16 and 17 of the Convention, that there is copious national and provincial legislation, consistent with article 104 of the Constitution. Attention may be drawn to national legislation such as the Civil Code and the special laws, the Names of Natural Persons Act (No. 18,248), the Civil Rights of Women Act (No. 11,357), the Care of Children Act (No. 10,903), the adoption of Children Act (No. 19,134), Act No. 23,264 amending the Civil Code as regards parental authority and filiation, Act No. 23,515 relating to divorce and marriageable age, Act No. 22,278 and Act No. 22,803 relating to young offenders, Act No. 23,984 relating to the Code of Criminal Procedure (Book III, Title II, Juvenile Court Proceedings) and Act No. 23,054 relating to human rights.


V. FAMILY ENVIRONMENT AND ALTERNATIVE CARE. BASIC HEALTH
AND WELFARE. EDUCATION, LEISURE AND CULTURAL ACTIVITIES.
SPECIAL PROTECTION MEASURES

70. The right of men and women freely to marry in order to found a family is guaranteed by the Civil Code and the acts amending the Code, which ensure the right of men and women freely to marry by mutual consent.

71. Act No. 23,515, of recent date, stipulates that women must be 16 years of age and men 18 in order to marry:

If minors have not reached the minimum age for matrimony, the impediment may be lifted only with the permission of the courts, even if the permission of the parents has been granted; this decision is known as judicial dispensation.

72. Argentina has acceded to the 1957 New York Convention, which proscribes marriage by proxy, and has adjusted its domestic legislation by making provision for marriage in the absence of one of the partners through Act No. 23,515.

73. There is no specific legislation to facilitate the founding of a family, home-making grants or subsidies, the provision of housing and other benefits, although family policies are implemented by family welfare organizations to facilitate the consolidation of the family. In this regard, see Decree No. 1606/90, article 2 (a), (b), (e) and (g) and article 14 (III) and (IV), quoted in paragraph 37 of this report.

74. Among the measures implemented by the National Council for Children and the Family for the purposes of the preservation, strengthening and protection of families, mention may be made of the most salient features of the following programmes.


Prevention programme for subsidized families
(Decision No. 2,742/83 - MAS)


75. The programme's objectives and the persons entitled to benefit from it are described below:

1. Objectives:

2. Persons entitled to benefit:

76. The programme operates by providing financial assistance to families at risk, on the basis of an allowance for each under-age child, together with an allowance for the father, mother, guardian or legal representative. The programme also provides for payment of a special allowance to overcome an exceptional social or financial crisis affecting the family or to purchase machinery or tools to enable the family to set up a small manufacturing business.


Emergency housing subsidy scheme (Decision No. 17/81 - SEAS)


77. The scheme's objectives and the persons entitled to benefit from it are described below:

1. Objectives:

2. Persons entitled to benefit:

78. To alleviate the problems affecting vulnerable family members, such as children, and elderly and disabled persons, the National Council for Children and the Family (CNMF) implements the scheme in two ways: (i) granting a temporary allowance to meet the cost of hotel accommodation for the family group (exceptional circumstances: in emergencies, after a fire or eviction); and (ii) providing a sum of money to enable the family to meet the cost of renting accommodation; the sum covers the cost of the first month's rent in advance and two months' deposit (as determined by the Urban Hire and Rental Act).


Community care for disabled persons scheme (Decision No. 540/83 - MAS)


79. The scheme's objectives and the persons entitled to benefit from it are described below:

80. The scheme makes provision for a number of measures, some of which involve direct financial assistance for elderly person (over 60) who are either living alone or with a family group or foster family. It either supplements the welfare allowance provided by the State or is the sole form of benefit for elderly persons who are not in receipt of State benefit.


Interdisciplinary approach to visual disability programme
(Order No. 314/91 - CNMF)


81. The programme's objectives and the persons entitled to benefit from it are as follows: to promote the independent development of disabled persons, respecting personal choices, and strengthening family ties in order satisfactorily to integrate them within the community. The scheme will provide comprehensive protection and support for these persons, within the framework of the family and the community, and institute comprehensive preventive, training and rehabilitation programmes leading to employment. Care will be provided at a day-centre or residential centre, in the light of the requirements of each case.


HIV infection control and prevention programme
(Order No. 310/90 - CNMF)


82. This programme has the following objectives and activities:

(e) To promote legislation to help control the spread of the infection, to prevent discrimination and to provide proper care for the families concerned.

(b) Preventing sexual transmission;

(f) Participating in epidemiological monitoring;

83. As a result of the emergence of this pandemic, it became necessary to implement an HIV transmission control programme, and to provide care for infected persons and guidance for the rest of the population, in conjunction with Argentine and foreign governmental and non-governmental agencies with related objectives. By means of various activities, efforts are being made to prevent the transmission of HIV infection, to reduce morbidity and mortality associated with the infection, and to address the various problems linked to the disease (discrimination, employment, continuation of studies, etc.).


Disabled children


84. A special section is needed to deal with the range of problems faced by children with physical and mental disabilities. In this regard, it should be mentioned that Argentina has complied with the Declaration on the Rights of Mentally Retarded Persons, proclaimed by the United Nations on 20 December 1971, and with the Declaration on the Rights of Disabled Persons, proclaimed by the United Nations on 9 December 1975, as the rights in question have been incorporated into the Comprehensive Protection of Disabled Persons Act (No. 22,431).

85. Act No. 22,431 stipulates:

86. The above shall apply without prejudice to the acts of accession adopted by the provinces or to specific provincial legislation relating to disabilities, such as the following:

87. Nationally, the administrative agencies responsible for the physical and mental health of disabled children, young persons and family members are the Ministry of Health and Social Welfare and the National Council for Children and the Family, the latter having the following responsibility.

Decree No. 1606/90, article 14:

88. Without prejudice to the foregoing, it should be mentioned that there is a National Advisory Committee for the Integration of Disabled Persons attached to the Office of the President. By Act No. 23,462, Argentina ratified ILO Convention No. 159, which covers all matters relating to education, health, employment and insurance of the disabled.

89. Any person suffering from a permanent or long-term functional impairment of a physical or mental nature which, bearing in mind his age and social environment, entails considerable disadvantages from the standpoint of his integration within the family, society, the education system and the employment market is deemed to be disabled. In each case the public health authorities will certify the existence of the disability, its nature and degree, and the possibilities of rehabilitation. The State, through its competent organs, will provide as appropriate the following services: (a) full medical rehabilitation; (b) special schooling, where appropriate; (c) vocational or professional training; (d) loans and subsidies to enable them to take up employment or intellectual activity; (e) special social security regimes; (f) education in ordinary schools or, where on account of his degree of disability the person concerned cannot attend ordinary schools, in special schools. The necessary arrangements will be made through the Ministry of Health and Social Welfare, which will also promote the establishment of sheltered or therapeutic workshops. The State, its decentralized and parastatal bodies, and State-owned enterprises are required to employ disabled persons in a proportion of up to 4 per cent of their total employees.

90. Priority will be given to disabled persons for the management of small retail businesses located on land and in buildings owned by the public authorities. The Ministry of Labour and Social Security will support the establishment of sheltered manufacturing workshops and will also assist them through home-working schemes. The Ministry of Education and Culture will be responsible for examining the condition of disabled persons undergoing education with a view to integrating them into the education system. It will establish evaluation and prevocational guidance centres with a view to organizing apprenticeships for the disabled. It will also train teaching personnel and other professional staff. The amounts of the allowances payable in respect of primary, secondary and higher education and of assistance with schooling are doubled where a child is disabled and meets the statutory requirements. The provisions of Act No. 20,475 will be applicable, and amendments are being made to Act No. 18,017 (T.O. 1974), Act No. 18,037 (T.O. 1976) and Act No. 18,038 (T.O. 1976) to make them more favourable. Facilities are provided for the transport free of charge of disabled persons and persons accompanying them.


Measures to protect children and young persons

from economic exploitation


91. As regards special measures at the national level to protect children and young persons from economic, social or other exploitation and from abandonment and cruelty, and to ensure that they do not become victims of trafficking, mention should be made of the Care of Children Act (No. 10,903), which introduces the following reforms:

92. The Employment Contracts Act (No. 20,744) contains the following provisions:

93. The National Council for Children and the Family was established under Decree No. 1606/90. It is a technical and administrative body which participates in the provision of care and implements the programmes for the protection of children, young persons and disabled persons mentioned earlier. The Council's policies are directed primarily towards programmes of a preventive character designed to avert abandonment; however, success in this area is not always achieved. The conventional method of caring for abandoned children during this century has been to place them in institutions providing comprehensive care. However, this approach is being modified, and initial attempts are being made to deal with such situations through programmes offering alternatives to institutional care and seeking rather to restore a family relationship, on the premise that this is the only suitable means of ensuring the development of the child.

94. The Employment Contracts Act (No. 20,744) contains the following other provisions relating to the employment of young persons:

95. The same Act contains yet other provisions for the protection of young persons:

External temporary fostering scheme (Order No. 345/78 - SEMF)


96. This scheme works as follows:

(a) An "external temporary foster-mother" is a woman entrusted with the task of caring for children on a temporary basis.

(b) A daily allowance is payable in respect of each child to cover expenses, the amount to be fixed yearly.

(c) The payments made to the foster-mother cover care (including health care), food, wear and tear on furniture, clothing and bedding, and transport to and from the institution and the welfare services.

This scheme allows children to be placed in a family environment; the family receives an allowance in respect of the care it provides. The scheme is intended for children of up to five years of age. A child who has been completely abandoned may subsequently be placed in a family with a view to adoption.


External temporary fostering scheme for children requiring

special care (Order No. 836/80 - SFAS)


97. The objective of this scheme and the persons entitled to benefit from it are described below:

1. Objective:

2. Persons entitled to benefit:

(a) They must be under three years of age when taken into the scheme;

98. The special external fostering services are designed for children with disability problems, and the allowances paid to temporary foster-mothers vary according to the nature of the disability. The scheme is supervised by the Department of Health. Only two or three children can be placed with a foster-mother at a time, and the period of fostering is longer on account of the children's special problems.

99. Another element of the scheme consists of external temporary foster-mothers who care for HIV-positive children. This element was introduced into the scheme following the emergence of the AIDS problem. In view of the specific requirements of these children, the foster-mothers receive special allowances; the foster-mother has only one child in her care and is monitored continuously by the Department of Health. This scheme also accepts abandoned children, but without prejudice to other schemes for HIV-positive children whose mothers continue to maintain family relations with them.


Small hostels scheme (Order No. 834/91 - MBS)


100. The objective of the scheme and the persons entitled to benefit from it are described below:

1. Objective:

2. Persons entitled to benefit:

101. The scheme may accept children or young persons coming from institutions, children within the different preventive or alternative-care programmes run by the National Council for Children and the Family, and children referred to it by competent national or federal courts. A child may remain in a hostel until he attains his majority and for as long as the scheme is considered to be the best method of providing treatment for him.


Foster families scheme (Order No. 1379/69 - SFPAC)


102. The objectives of the scheme and the persons entitled to benefit from it are described below:

1. Objectives:

2. Persons entitled to benefit:

103. A foster family is defined as any legally married couple, with or without children, enjoying good family, marital and social relationships. Children aged under 10 and having no behavioural problems may be placed in the care of foster families, within which they can be brought up and develop. Foster families receive allowances commensurate with their needs and financial situation and with the number of dependent children they have taken in.


Study scholarship programme (Order No. 142;

Official Record No. 50,204/90)


104. The objectives of the programme and the persons entitled to benefit from it are as follows:

1. Objectives:

2. Persons entitled to benefit:

105. This programme is designed as an instrument for the award of scholarships which will enable the beneficiaries to cover the cost of studying or any reduction or insufficiency of income arising from the fact that a young person has to devote attention to fulfilling his obligations as a student.


Continuing education and preparation for employment programme

(Order No. 149/92 - CNMF)


106. The objective of this programme is to develop a theoretical framework of criteria for personalized and continuing education which will eventually form a theoretical basis for the scheme. The programme will comprise elements of flexibility in the adaptation of education to the needs of the person assisted, of participation and integration in community life, and of full utilization of the entire range of educational services available. This entails a change-over from an inward-looking institutional system which claims to be self-sufficient to a system open to the community, not only for the provision of services but also to request and make use of services; in this way it will establish links between the beneficiary and his social environment. Seen from another viewpoint, this programme will help to replace the institutional concepts dating from the beginning of the century, which were directed towards giving instruction to children and young persons placed in institutions, by others designed to provide training opportunities for every person receiving assistance.

107. Under this programme a minor, whether living in a family environment or in the care of the organization under one of its programmes, receives a grant towards the payment of a teacher, or a person giving training for employment, irrespective of the nature of the service rendered. The novelty of this approach is that it allows assistance to be given in the home in special situations, such as those of young persons deprived of freedom of movement by a court decision, sickness or discrimination (HIV positive, victims of crimes, pregnancy, etc.), to ensure that their situation does not affect their education or their employment opportunities.


Young offenders


108. We would emphasize that there is special legislation relating to young persons who have committed offences.

109. Act No. 22,278, as amended by Act No.22,803, states:

1. The provisions on arrest and pre-trial detention in proceedings against persons between the ages of 16 and 18 years shall not apply.

If, because of the nature of the case and the personal characteristics of the young person concerned, there is a substantiated need to take these measures, the judge may order them, but deprivation of liberty shall take place in a specialized establishment.

2. The decision handed down concerning young persons between 16 and 18 years of age shall be in conformity with the provisions of articles 495 and 496, but when the defendant is not acquitted, it shall simply declare his criminal responsibility and, where appropriate, the responsibility he would have incurred if a criminal indemnity action had been brought both against him and against responsible third parties.

Once the legal requirements subsequent to the declaration of criminal responsibility have been complied with, the judge shall acquit the defendant or impose the appropriate penalty on him.

3. Together with the decision terminating the proceedings, the judge shall reach a decision on final action to be taken with regard to the young person concerned, after having heard the parents or guardian.

An appeal may without restriction be lodged against the final decision within a period of five days."

110. The Code of Criminal Procedure (Act No. 23,984), published in the Boletín Oficial de la República Argentina on 9 September 1991, entered into force one year later in September 1992, and so all provisions at variance with it have been abrogated (art. 538). Book III, Title II (Special Proceedings), Chapter II, establishes the Special Juvenile Court (arts. 410-414). In accordance with the provisions of article 410, the oral proceedings are replaced, without prejudice to the provisions of existing Act No. 22,278. The Code of Criminal Procedure covers the characteristics and needs peculiar to each case (exceptional detention, separate accommodation for young persons, essential minimum assistance for young persons in examination and court proceedings, in camera proceedings, attendance by his father or guardian, possibility of amending the measures taken on grounds of security and education). It should be added that young persons are not liable to the provisions relating to pre-trial detention and release from custody. Article 411 stipulates that the freedom of the young person shall be the rule and his detention the exception, any action being ordered following a report by the juvenile court assessor.

111. Article 413 establishes the court's rules of procedure:

Article 414 states: "The court may, of its own motion or on the application of a party, postpone the measures ordered in respect of the young person concerned."

112. Article 2 of Act No. 24,050, concerning the Constitution and powers of the new criminal courts, states that jurisdiction throughout the country over criminal cases involving minors rests with: (a) the special juvenile courts, in which proceedings are entirely oral; (b) the National Chamber of Criminal and Correctional Appeals; and (c) the national juvenile courts, without prejudice, where appropriate, to the powers of the national Court of Cassation in criminal matters and of the national Supreme Court of Justice under the terms of article 14 of Act No. 48. It should be mentioned that under the new Code of Criminal Procedure the special juvenile courts, made up of three professional judges, are competent to hear cases concerning juveniles between ages 16 and 18 accused of offences carrying a penalty of over three years' imprisonment; other cases are heard by judges in the national juvenile courts, in accordance with the special legislation concerning minors (Acts Nos. 22,278 and 22,803).

113. The subject of the treatment of minors who have committed acts defined by law as criminal deserves a special section. The National Council for Children and the Family has at its disposal a number of secure establishments in which the different cases can be dealt with. In addition, agreements are being concluded with private institutions for the care of minors suffering from behavioural problems (drug addiction, psychiatric disorders).

114. Decree No. 1,606/90, establishing the National Council for Children and the Family, contains the following provisions on the subject:

Orientation and referral programme of the Centre for the Care
of Minors in Transit (Order No. 175/89 - SSMDTE)


115. The principal objectives of this programme are as follows:

For the performance of these tasks, the National Council for Children and the Family retains the services of a multidisciplinary team working within the Centre for the Care of Minors in Transit, which is located in the central court buildings. The tasks of the team are to conduct initial examinations of minors being held at the disposal of the courts and provisional diagnoses of their cases, with a view to assisting the judge responsible for orientation in the initial choice of referral on the basis of the studies prepared by the team (psychological, social, health, past history).


Assisted freedom scheme (Order No. 14/91 - CNMF)


116. The objective of the scheme, the persons covered and the method of functioning of the scheme are as follows:

117. The scheme offers an alternative to the placement in institutions of minors with behavioural problems. It consists basically of subsidies for the provision of care to a young offender within his family environment; he is assigned a social worker who visits him and his family group, monitors both and organizes activities. Provision also exists for meeting the costs of health care, clothing and training for employment and of expenditure designed to ensure better care of minors in this situation. Under this scheme as many minors are currently being looked after as there are in institutional care.


Other activities


118. Another institution providing care for minors with behavioural problems is the Isla Silvia small hostel, which provides care of the group therapy type. The staff there assist children and young persons with problems of drug addiction, who receive subsidies under the "realities of life" scheme.

119. In the "secure institutions", both the curative and security aspects fall within the terms of reference of the National Council for Children and the Family, which has its own staff trained specifically along the lines laid down in the in-service training programme. All these activities are carried on within the framework of the guidelines in the Declaration of the Rights of the Child, the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules; General Assembly resolution 40/33) and the United Nations Rules for the Protection of Juveniles Deprived of their Liberty.

120. A recent measure taken by the National Council for Children and the Family to improve standards of care for minors in this situation was the modernization of its fleet of motor vehicles. The new vehicles are more comfortably equipped (air-conditioning, stereo record-player), without detriment to the security aspects.

121. Other recent measures taken at the national level by the National Council for Children and the Family seek to focus all the Council's programmes of action on realization of the rights of the child and protecting children and young persons who are abandoned, at risk, in conflict with criminal law, etc.


VI. CONCLUSIONS


122. We must draw attention to all the measures taken to secure better protection for the family, mothers, children and physical and mental health, not only in the legislative field but also in the administrative and judicial fields, and also to the new policies concerning children, young persons, the disabled and the elderly which are being implemented at the national level through the National Council for Children and the Family, which has specific responsibility in this regard.

123. A need has emerged to improve services on the administrative side, without prejudice to modifications dictated by emergency economic and fiscal adjustment policies. This has entailed a complete restructuring of the central administration in relation to the Ministry of Health and Social Welfare, which has central responsibility for all measures taken in support of the family, children, young persons, the disabled and the elderly through its technical bodies. These developments have led to the framing of wide-ranging policies benefiting children, young persons and families (basically those at risk) through innovative and imaginative programmes combining and reconciling economic, solidarity and human considerations and providing for a wide range of alternative approaches.

124. All the decisions of the Ministry of Health and Social Welfare and its technical body with responsibility for this field relating to article 44 of the Convention are reflected in the various programmes, which obey a "golden rule" of an economic and social, but also a cultural, character - that of the relationship between costs, effectiveness and coverage. All the measures designed to protect the most vulnerable members of society have been carefully studied, with a view to reducing the cost of programmes, increasing their efficiency, and taking account of the real and potential demand from the neediest population groups to the greatest possible extent.

125. In conclusion, it is important to emphasize the prime importance attached to the Convention on the Rights of the Child, adopted by the United Nations on 20 November 1989 and ratified by the Argentine Government by Act No. 23,849, subject to a reservation on article 2.

126. The most recent measures taken at the national level by the National Council for Children and the Family are designed to focus all its programmes of action on the realization of the rights of the child and the protection of children and young persons who are abandoned, at risk or in conflict with the criminal law.


List of annexes


The documents listed below, which were submitted in Spanish by the Argentine Government, elaborate on the information given in chapter V of this report. They may be consulted in the files of the United Nations Centre for Human Rights.

1. Health:

(a) State of health and health-care coverage of the population

(b) Maternal and child health:

(a) Diagnosis

(b) Activities

(c) Immunization

(d) Tetanus among newborn infants

(e) Social development programme relating to nutrition

(f) UNICEF/World Bank project for the care and nutrition of mothers and children

(g) Targets for the decade in the field of maternal and child health and nutrition.

2. Activities of the National Directorate for Community Development.

3. Federal decision concerning the comprehensive protection of children and families.



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Office of the United Nations High Commissioner for Human Rights
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