CRC/C/OPSC/NIC/CO/1

Convention on the Rights of the Child

Distr.: General

1 October 2010

Original: English

Committee on the Rights of the Child

Fifty-fifth session

13 September – 1 October 2010

Consideration of reports submitted by States parties under article 12, paragraph 1, of the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution, and child pornography

Concluding observations:

Nicaragua

1. The Committee considered the initial report of Nicaragua (CRC/C/OPSC/NIC/1) at its 1572nd meeting (see CRC/C/SR.1572), held on 24 September 2010, and adopted at its 1583rd meeting, held on 1 October 2010, the following concluding observations.

Introduction

2. The Committee welcomes the submission of the State party's initial report. The Committee further welcomes its written replies (CRC/C/OPSC/NIC/Q/1/Add.1) to the list of issues and appreciates the constructive dialogue with a high-level delegation.

3. The Committee reminds the State party that these concluding observations should be read in conjunction with its concluding observations adopted on the State party’s fourth periodic report on 1 October 2010 (CRC/C/NIC/CO/4) and with the concluding observation sadopted on the initial report under the Optional Protocol on the involvement of children in armed conflict (CRC/C/OPAC/NIC/CO/1) on 1 October 2010.

I. General Observations

Positive aspects

4. The Committee notes with appreciation that the Penal Code, which entered into force in 2008, criminalizes certain aspects of the sale of children, child prostitution and child pornography.

II. Data

5. The Committee is concerned about the absence of a comprehensive and systematic mechanism of data collection, analysis and monitoring on sale of children, child prostitution and child pornography and on the number of children involved in these activities.

6. The Committee recommends that the State party develop and implement a comprehensive and systematic mechanism of data collection, analysis, monitoring and impact assessment of all the areas covered by the Optional Protocol. The data should be disaggregated, inter alia, by nature of the offence and by sex, age, national and ethnic origin, urban/rural areas, socio-economic status, with particular attention to children in vulnerable situations. The Committee recommends the State party to seek technical support from inter alia UNICEF in relation to the recommendation above.

III. General measures of implementation

Legislation

7. While welcoming the adoption of the Penal Code which entered into force in 2008 and the Regulations of the General Tourism law, the Committee however regrets that the State party has not fully implemented its obligations under the Optional Protocol. Furthermore, the Committee is concerned that the Penal Procedure Code, adopted in 2001, has not been adapted to the Penal Code of 2008.

8. The Committee recommends that the State party urgently amend its Penal Procedure Code in order to harmonize it with the Penal Code. The Committee reminds the State party that its legislation must satisfy its obligations with regard to the definition of the sale of children. The concept of sale of children is not identical to that of trafficking, and in order to fully implement the provisions on sale of children contained in the Optional Protocol, the State party must ensure that its legislation contains specific provisions on the sale of children, as provided by the Optional Protocol.

Coordination and evaluation

9. The Committee regrets that the National Council for the Comprehensive Care and Protection of Children and Adolescents (CONAPINA), established by the Child Code at presidential level with civil society participation, and which previously was in charge of coordinating child policies, has lost its authority by virtue of Law 290 (2008) and that CONAPINA is now located within the Ministry of Family, Adolescence and Childhood (MIFAN), which has affected overall coordination, including with civil society. It is further concerned that a new National System of Social Welfare (Sistema Nacional de Bienestar Social) has taken over the overall coordination of social policy, including that related to children, and as a consequence, the promotion and protection of children’s rights in general, not only of those at risk, have lost specificity and transparency.

10. The Committee recommends that the State party consider strengthening the leadership and coordinating functions of CONAPINA as set out in the Child Code, and, in this respect, streamline the roles and activities of both the MIFAN and the Sistema Nacional de Bienestar Social, to ensure a comprehensive and well articulated system of promotion and protection of children’s rights.

National Plan of Action

11. The Committee notes that according to the declaration of the delegation, the State party has a new Strategic Plan against Trafficking in Persons (2010-2014) which is implemented by the National Coalition against Trafficking in Persons (Coalición Nacional Contra la Trata de Personas). However, the Committee has no information on how this Plan is coordinated with the Programa Amor, if it has the mandate to prevent and combat all the offences under the Optional Protocol and if it is adequately resourced in human and financial terms.

12. The Committee recommends that the State party:

(a) Ensure that the new Strategic Plan against Trafficking in Persons (2010-2014) is adequately resourced in human and financial terms, that it includes specific time-bound and measurable goals, and that it is widely disseminated and regularly monitored;

(b) Pay particular attention to the scope of the Strategic Plan to implement the Optional Protocol, in particular to combat and prevent all the offences it covers;

(c) Link the Strategic Plan with the Programa Amor and the National Plan of Action for Children and Adolescents 2002-2011 and/or a new comprehensive plan of action for children; and

(d) Be inspired by the Declaration and Agenda for Action and the Global Commitment adopted at the First, Second and Third World Congress against Sexual Exploitation of Children held in Stockholm, Yokohama and Rio de Janeiro in 1996, 2001 and 2008, respectively.

Independent monitoring

13. While welcoming the active involvement of the Office of the Ombudsperson on Human Rights (Procuraduría Nacional de Derechos Humanos) and the Office of the Special Ombudsperson for the Protection of Children and Adolescents (Procuraduría Especial de la Niñez y la Adolescencia) in the promotion, protection and investigation of violations of children’s rights, the Committee is concerned at the scarcity of human, technical and financial resources available for this important work. It is also concerned about undue delays in the designation of the Ombudsperson.

14. The Committee recommends that the State party assign greater human, technical and financial resources to the Office of the Special Ombudsperson for the Protection of Children and Adolescents so that it can fully exercise its function of oversight and defence of the rights of children and adolescents. It further recommends guaranteeing independence in the designation and operation of the Human Rights Ombudsperson. The Committee recommends that the State party take into account the Committee’s general comment No. 2 (2002) on the role of independent national human rights institutions in the promotion and protection of the rights of the child.

Dissemination and training

15. While welcoming the State party’s efforts to make the provisions of the Optional Protocol known, such as information and sensitisation actions for teachers and students by the Ministry of Education (Red de Consejeros Escolares), the Committee is concerned that children and relevant professionals in contact with them, are not sufficiently aware of the provisions of the Optional Protocol.

16. The Committee recommends that the State party:

(a) In line with article 9(2) of the Optional Protocol, make the provisions of the Protocol widely known in the public at large, including to children, their families and communities, through, in particular the school curricula and long-term awareness-raising measures, including in a child-friendly manner;

(b) Enhance cooperation with civil society organisations and the media in order to support awareness-raising and training activities on the provisions of the Optional Protocol;

(c) Continue and strengthen systematic education and training on the provisions of the Optional Protocol for all professional groups working with child victims of such crimes covered, inter alia the police, lawyers, prosecutors, judges, social workers and immigration officials; and

(d) Seek technical support from UNICEF, among others, in relation to the recommendations above.

Allocation of resources

17. The Committee notes with concern the State party’s information that no specific budget allocations have been made for the implementation of the Optional Protocol.

18. The Committee strongly recommends that the State party provide specific budget allocations for the implementation of the Optional Protocol, ensuring a balanced distribution of resources throughout the country and taking into account the rights of children who are particularly vulnerable to acts constituting violations of the Optional Protocol. The Committee further recommends that the State party introduce resource tracking from a child rights perspective with a view to monitoring resource allocations for children.

IV. Prevention of the sale of children, child prostitution and child pornography (art. 9, paras. 1 and 2)

Measures adopted to prevent offences referred to in the Protocol

19. While noting the development of various offices and programmes for the prevention of offences referred to in the Optional Protocol, such as the National Coalition against Trafficking in Persons, the National Police special stations for women and children, the role of the Special Ombudsperson for children and adolescents and the special Unit for Children and adolescents within the office of the Ministerio Publico, the Committee notes that preventive measures are weak, fragmented and inadequate, and that documentation and research are insufficient on the root causes, nature and extent of the sale of children, child prostitution and child pornography.

20. The Committee encourages the State party to carry out further documentation and gender-sensitive research on the nature and extent of the sale of children, child prostitution and child pornography, in order to identify the root causes, the extent of the problems, including within the indigenous and Afro-descendant populations, and undertake prevention measures and adopt targeted measures.

Child sex tourism

21. While welcoming that the Penal Code article 177 criminalizes the promotion of child sex tourism and the existence of the Regulations of the General Tourism Law, which establishes administrative penalties for companies, and the fact that the tourism sector adopted a code of conduct, the Committee is concerned that child sex tourism remains a serious problem in the State party, and that children are trafficked within the country for sex tourism.

22. The Committee recommends that the State party:

(a) Take measures to prevent child sex tourism, in particular by earmarking additional funds for public campaigns, including the participation of children, for this purpose;

(b) Continue and strengthen, through relevant authorities, cooperation with the tourism industry, NGOs and civil society organizations in order to promote responsible tourism by the dissemination of the code of conduct among employees within the tourism industry and awareness-raising campaigns for the general public;

(c) Conduct systematic education and training on the provisions of the Optional Protocol for all professional groups working with and for children; and

(d) Strengthen the role of the business community with regard to the provisions of the Optional Protocol, in light of the corporate social responsibility.

V. Prohibition of the sale of children, child pornography and child prostitution and related matters (arts. 3; 4, paras. 2 and 3; 5; 6 and 7)

Existing criminal or penal laws and regulations

23. The Committee is concerned that the Penal Code only partly incorporates the offences covered by the Optional Protocol: it does not criminalize the sale of children for the purpose of transfer of organs of the child for profit or engagement of the child in forced labour, and it does not explicitly cover prostitution of children 14 years of age or older, nor the possession of pornographic material.

24. The Committee recommends that the State party revise and bring its penal law into full compliance with articles 2 and 3 of the Optional Protocol. In particular, the State party should criminalize:

(a) The sale of children by offering, delivering or accepting, by whatever means, a child for the purpose of sexual exploitation, transfer of organs of the child for profit or engagement of the child in forced labour;

(b) Possessing child pornography;

(c) An attempt to commit any of these acts and complicity or participation in any of these acts; and

(d) The production and dissemination of material advertising any of these acts.

Irregular adoption

25. While noting that article 182 of the Penal Code covers the sale of children for the purpose of illegitimate adoption, the Committee regrets that improperly inducing consent in cases of adoption, as provided for in article 3, paragraph 1 (a)(ii) of the Optional Protocol, is not specifically criminalized.

26. The Committee recommends that the State party take all necessary measures to ensure that improperly inducing consent in cases of adoption is criminalised, as stipulated in article 3, paragraph 1 (a) (ii) of the Optional Protocol.

Prosecution

27. While appreciating the efforts of the State Party to put its Penal Code in conformity with the Optional Protocol, the Committee is concerned that the number of investigations brought to trial is low and that many cases end with a lack of prosecution or non-lieu. Furthermore, the Committee is concerned by provisions in the Penal Procedure Code allowing the Public Prosecutor to stop the public action in case of withdrawal of the victim’s complaint, even in very serious crimes, including incest.

28. The Committee urges the State party to amend chapter 5 of its Penal Procedure Code and strengthen its penal law by providing for the prosecution of all crimes covered by articles 2 and 3 of the Optional Protocol, with a view to prevent impunity and punish perpetrators.

Jurisdiction

29. The Committee welcomes that article 19 of the Penal Procedure Code provides for universal jurisdiction, but is concerned that article 16 of the Penal Code, which lists the offences covered by the principle of universality, does not explicitly refer to the sale of children, child pornography and child prostitution.

30. The Committee recommends that the State party ensure that all legal and practical measures necessary be undertaken in order to be able to effectively establish jurisdiction over offences in accordance with article 4 of the Optional Protocol.

Extradition

31. The Committee notes that according to article 348 of the Penal Procedure Code, extradition is not conditional on the existence of a treaty, and requests for extradition are decided upon by the Supreme Court (Sala de lo Penal de la Corte Suprema de Justicia).

32. The Committee recommends that the State party:

(a) Include the offences referred to in article 3, paragraph 1, of the Optional Protocol as extraditable offences in any existing extradition treaty which it has entered as well as in every extradition treaty which it will subsequently conclude; and

(b) Take suitable measures to submit cases to its competent authorities for the purpose of prosecution when it rejects an extradition request.

VI. Protection of the rights of child victims (arts. 8 and 9, paras. 3 and 4)

Measures adopted to protect the rights and interests of child victims of offences prohibited under the Protocol

33. The Committee is concerned at the insufficient measures taken to indentify child victims and provide them with effective access to judicial remedies.

34. The Committee recommends that the State party allocate sufficient resources and develop comprehensive procedures for the early identification of child victims of offenses under the Optional Protocol. It further recommends ensuring that judges, prosecutors, social workers, medical personnel and police officers are adequately trained on the provisions of the Optional Protocol.

Criminal justice system protection measures

35. The Committee is concerned at the lack of measures in place to protect the rights and interests of child victims and witnesses in the criminal justice system. It is particularly concerned that child victims have to be present during the proceedings, exposing them to re-victimization. Furthermore, the Committee is concerned that the State party does not systematically provide video or audio devices when interviewing child witnesses and victims, and does not formally limit the number of interviews.

36. The Committee recommends that the State party continue and strengthen measures to protect the rights and interests of child victims, for all children under the age of 18 years, in accordance with article 8, paragraph 1, of the Optional Protocol and the Guidelines on Justice in Matters involving Child Victims and Witnesses of Crime, including by providing for video or audio devices when interviewing child victims or witnesses, in order to limit the number of interviews and avoid the child being in direct contact with the perpetrator.

Recovery and reintegration

37. The Committee is concerned at the absence of a sustained intervention over a period of time for victims, in particular of trafficking. It is further concerned that the State party has not put in place measures for the recovery and reintegration of victims of all offences under the Optional Protocol. The Committee regrets the fact that victims of offences under the Optional Protocol wanting to obtain compensation have to introduce a civil process.

38. The Committee recommends that the State party:

(a) Implement the recovery programmes for child victims proposed by the Programa Amor, including psychological and health care services, the development of education, training and employment opportunities, and the implementation of processes for safe family reinsertion;

(b) Ensure that resources be earmarked in order to strengthen social reintegration and physical and psychosocial recovery measures, in accordance with article 9, paragraph 3, of the Optional Protocol, in particular by providing interdisciplinary assistance for child victims; and

(c) Guarantee that all child victims of the offences described in the Optional

Protocol have access to adequate procedures and to seek, without discrimination, rapid compensation for damages from those legally responsible, in accordance with article 9, paragraph 4, of the Optional Protocol.

VII. International assistance and cooperation

International cooperation

39. The Committee recommends that the State party continue and strengthen international cooperation, and conduct research to examine cross-border protection issues between Nicaragua and neighbouring countries. It also recommends strengthening bilateral and multilateral agreements and cooperation with Interpol and intelligence services. The State party is encouraged to seek technical support from inter alia UNICEF and the ILO for the above purpose.

40. The Committee urges the State party to accept the visit requested from the Special Rapporteur of the Human Rights Council on the sale of children, child prostitution and child pornography.

VIII. Follow-up and dissemination

Follow-up

41. The Committee recommends that the State party take all appropriate measures to ensure full implementation of the present recommendations, inter alia, by transmitting them to the Head of State, the Supreme Court, National Assembly, relevant ministries and municipal authorities for appropriate consideration and further action.

Dissemination

42. The Committee further recommends that the initial report and written replies submitted by the State party and the related recommendations (concluding observations) it adopted be made widely available in the languages of the country, including (but not exclusively) through the Internet to the public at large, civil society organizations, youth groups, professional groups and children, in order to generate debate and awareness of the Optional Protocol, its implementation and monitoring.

IX. Next report

43. In accordance with article 12, paragraph 2, the Committee requests the State party to include further information on the implementation of the Optional Protocol in its consolidated fifth and sixth periodic report under the Convention on the Rights of the Child, due on 1 October 2015.