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NEW REPORT: Life imprisonment of children around the world
In March CRIN launched a new report, Inhuman sentencing: Life imprisonment of children around the world. The report reviewed laws in every country around the world to examine how children can be subjected to life imprisonment and, where life imprisonment has been abolished, what sentencing regimes have been introduced in its place. At the time, we published a special edition of the English CRINmail setting out the findings of the report. The research also looked at how standards on life imprisonment for children developed to recognise it as a form of violence and later cruel, inhuman and degrading punishment. This edition of the Violence against Children CRINmail will focus on how this change took place and how human rights mechanisms and courts have started to address life imprisonment of children.
Life imprisonment and the UN: a gradual evolution
When the Convention on the Rights of the Child (CRC) was drafted at the end of the 1980s, the argument over whether to specifically prohibit life imprisonment or only life imprisonment without the possibility of parole (LWOP) was one of the major fault lines in the debate about juvenile justice. In the end more progressive voices lost out, and the Convention as agreed only specifically prohibits life imprisonment without the possibility of parole, albeit alongside less clearly drawn limitations on detention. Tellingly, the prohibition on LWOP was included within the same provision that prohibits torture and other cruel, inhuman or degrading treatment or punishment, setting a precedent for the relationship between the prohibition on torture and extremely long forms of detention.
From there, ground shifted very gradually at the UN. The Committee on the Rights of the Child first recommended that a State abolish life imprisonment for children in 1994 and continued to raise the issue with States when it arose during the reporting process. In 2006, the UN Secretary-General's Study on Violence against Children addressed violence in the justice system, but again singled out life imprisonment without the possibility of parole for particular censure while leaving criticism of other forms of life imprisonment more implicit.
Two years later, the Committee on the Rights of the Child released General Comment No. 10 on children’s rights in juvenile justice, in which it stated:
“Given the likelihood that a life imprisonment of a child will make it very difficult, if not impossible, to achieve the aims of juvenile justice despite the possibility of release, the Committee strongly recommends the States parties abolish all forms of life imprisonment for offences committed by persons under the age of 18.”
The Committee was the first of the UN’s core human rights bodies to recognise that regardless of the lack of an explicit prohibition on life imprisonment in the CRC, children’s rights were not being realised through one of the most extreme and punitive forms of sentencing. But despite this breakthrough the Committee discussed life imprisonment as failing to meet juvenile justice standards rather than as a form of violence, a categorisation that would have automatically prohibited it under the Convention.
Unusually for the development of human rights standards, it was the UN General Assembly that made the next major leap forwards on life imprisonment for children, when in 2012 it urged States to consider abolishing life imprisonment for any offence committed while under the age of 18. The inclusion of this language - within the same paragraph that called for the prohibition of the death penalty for children - acted as a catalyst and opened the door for other UN mechanisms to recognise all forms of life imprisonment as violations of children’s rights. The Human Rights Council followed up the next year by passing a resolution urging States to ensure that neither capital punishment nor life imprisonment are imposed for offences committed by persons under the age of 18 and the Secretary-General’s 2014 report on the death penalty called on States to avoid using life imprisonment as a replacement for the death penalty for children.
The connection between life imprisonment and established forms of prohibited violent sentencing was well-established by this point - recommendations on life imprisonment and the death penalty went hand in hand - but the explicit recognition of life imprisonment as a violent form of sentencing covered by the prohibition on cruel, inhuman and degrading punishment came only this year. The UN Special Rapporteur on torture made the implicit explicit last month when his thematic report recognised that: “life imprisonment and lengthy sentences … are grossly disproportionate and therefore cruel, inhuman or degrading when imposed on a child.” The report sets a clear precedent for how the UN should address life imprisonment of children ahead of the forthcoming Global Study on Children Deprived of their Liberty.
Life imprisonment in the courts
As the UN’s stance on life imprisonment gradually evolved, courts around the world too began to grapple with the issue. Progress in national and regional courts will never be as uniform as the development of UN standards for the simple reason that there are at least as many legal systems as there are countries and each has its own tradition and approach to human rights law. However, many of the human rights standards relevant to life imprisonment of children are common to these legal systems and so trends have emerged around the world.
Courts, at least initially, were more responsive to enforcing procedural safeguards with regards to life imprisonment. Some of the earliest cases challenging life sentences originated in the United Kingdom in the 1990s (e.g this case from 1996) and revolved around parole decisions and ensuring that the decision met fair trial standards. At the centre of many of these cases was the need to ensure that an independent tribunal with the power to order release from detention made the decision whether to do so. The UK cases were highly influential - in part because its particular form of life imprisonment was shared with the majority of the Commonwealth States but also because the Privy Council was acting as the highest court for a substantial number of those States - and litigation on these kinds of issues spread rapidly throughout the Caribbean over the following decade.
Cases before human rights courts quickly moved on, though, to examine whether imposing life imprisonment for an offence committed while a under 18 could amount to inhuman or degrading punishment. In 1999, the European Court of Human Rights (ECtHR) first addressed the issue by examining “detention during Her Majesty’s pleasure” - the English form of life imprisonment when applied to a child offender in which a child can be sentenced to be detained indefinitely. The case was a mixed bag for children’s rights advocates. While the court did not find that imposing an indeterminate sentence necessarily amounted to such treatment, it did find that certain forms of indeterminate sentences could. At any rate, the European Convention on Human Rights is a “living instrument” and the rights within it develop over time, so the decision left the door open for the Court to return to the issue.
Life imprisonment, albeit for adults, returned to the ECtHR in a spate of cases heard since 2008, during which the Court clarified that only “irreducible life sentences” - those that permit no release in principle or fact - are prohibited by the Convention for adults. The caveat that this standard applies to adults has been repeated in subsequent cases, and the Court has repeatedly recognised that age is an important factor in deciding whether punishment is torture, inhuman or degrading and therefore prohibited. The Court seems ready to return to the issue and clarify its position on life imprisonment for children.
The Inter-American Court of Human Rights, meanwhile, paved the way on the issue of life when in 2013 it found that Argentina had violated the rights of children it had sentenced to life imprisonment. The judgment was complicated by the number and variety of rights violations involved (one of the applicants died during proceedings, while three alleged that they had been tortured while detained) but nonetheless, the court set a clear and strong standard on life imprisonment as a violation of children’s rights.
First, the Court found that life imprisonment of children was a form of arbitrary detention, falling short of the requirement that detention must be a last resort and for the shortest period possible; that length of detention must be clear from the point of sentencing; and that detention must be periodically reviewed. The Court also found that life imprisonment of children does not pursue the aim of deprivation of liberty which must be their reform and social readaptation. Finally, the Court found that, at least the Argentinian form of life imprisonment in which 20 years is the minimum period of detention that must be served, constitutes cruel, inhuman and degrading punishment when applied to a child offender. The judgment only explicitly addressed Argentina, but Barbados has accepted the jurisdiction of the court and still retains life imprisonment for children. This is the first time that one of the world’s major regional human rights courts has set such clear standards on life imprisonment for children, and has the potential to be highly influential.
What next?
Ten years after the UN’s violence study, the UN is set to launch a study on children deprived of their liberty and bring scrutiny to the rights abuses children face when they are detained. Life imprisonment, as one of the most extreme forms of deprivation of liberty, will certainly feature in the study; but with the issue of life imprisonment as a rights violation and form of violence against children now settled, it will be for the study to address all forms of detention, not just the worst.
Meanwhile, in States around the world the stage is set for life imprisonment of children to be challenged as the rights violation that it is. In some countries progress is guaranteed to be slow - courts in the United States are still wrestling with whether the prohibition on mandatory life imprisonment without parole is retroactive and the variation in criminal law among the 50 states is certain to make national reform incremental. Progress is also likely to be more difficult where there is no well-established regional human rights court, as these courts are perhaps the most effective way of pressing for change across a region. Nonetheless, there is hope that the growing consensus in international human rights law can pave the way for real reform around the world.
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NEWS AND REPORT ROUND-UP
State violence & death sentence
Corporal punishment
Psychological abuse
Physical abuse
Funding opportunity
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UPCOMING EVENTS
Child abuse: 9th Latin American Regional Conference on Child Abuse and Neglect
Organisation: International Society for the Prevention of Child Abuse and Neglect
Dates: 26-29 April 2015
Location: Toluca, Mexico
Asia-Pacific: Alternatives to detention and restorative justice for children
Organisation: Asia-Pacific Council for Juvenile Justice
Date: 5-8 May 2015
Location: Phuket, Thailand
Bodily integrity: 2015 Genital Autonomy conference
Organisation: Genital Autonomy
Dates: 8-9 May 2015
Location: Frankfurt, Germany
LGBT rights: Int'l Day against Homophobia, Transphobia & Biphobia (IDAHO)
Organisation: IDAHO Committee
Dates: 17 May 2015
Location: N/A
Child rights: 9th European Forum on the Rights of the Child
Organisation: European Commission
Date: 3-4 June 2015
Location: Brussels, Belgium
Justice systems: International Congress 'Children and the Law'
Organisation: Fernando Pessoa University
Dates: 11-13 June 2015
Location: Porto, Portugal
Justice sector reform: Training programme on applying human rights based approaches to justice sector reform
Organisation: International Human Rights Network
Dates: 22-26 June 2015
Location: Maynooth, Ireland
Child labour: The Nairobi Global Conference on Child Labour
Organisation: African Network for the Prevention and Protection against Child Abuse and Neglect
Date: 23-25 August 2015
Location: Nairobi, Kenya
Child abuse: 10th Asian Pacific Regional Conference on Child Abuse and Neglect
Organisation: International Society for the Prevention of Child Abuse and Neglect
Dates: 25-28 October 2015
Location: Kuala Lumpur, Malaysia
Violence: 14th ISPCAN European Regional Conference on Child Abuse and Neglect
Date: 27-30 September 2015
Location: Bucharest, Romania
Abuse: 19 days of activism prevention abuse and violence against children
Dates: 1-19 November 2015
Organisation: Women's World Summit Foundation
Location: N/A
THE LAST WORD
"It is essential - indeed long overdue - to [...] challenge any sentence which, at the time it is passed, a child is liable to be detained for the rest of his or her natural life. It is also time to look at laws permitting the lengthy detention of children, which fall short of the standards set by the Convention on the Rights of the Child."
-- Report: 'Inhuman sentencing - Life imprisonment of children around the world'
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