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United Nations Human Rights System Two articles of the UN Convention on the Rights of the Child relate to the situation of children in conflict with the law: Article 37 on Torture and Deprivation of Liberty and Article 40 on the Administration of Juvenile Justice. More specifically, Article 37 states that no child shall be subjected to torture, cruel treatment or punishment, unlawful arrest or deprivation of liberty. Both capital punishment and life imprisonment without the possibility of release are prohibited for offences committed by persons below 18 years. Any child deprived of liberty shall be separated from adults unless it is considered in the child's best interests not to do so. A child who is detained shall have legal and other assistance as well as contact with the family. Article 40 states that a child in conflict with the law has the right to treatment which promotes the child's sense of dignity and worth, takes the child's age into account and aims at his or her reintegration into society. The child is entitled to basic guarantees as well as legal or other assistance for his or her defence. Judicial proceedings and institutional placements shall be avoided wherever possible. The Committee on the Rights of the Child held a General Day of Discussion at its ninth session in May 1995 on the Administration of Juvenile Justice. It recommended that States adopt “a child-oriented system, that recognises the child as a subject of fundamental rights and freedoms and stresses the need for all actions concerning children to be guided by the best interests of the child as a primary consideration”. Full report: http://www.crin.org/resources/infoDetail.asp?ID=483 Provision of Complaints Procedures for Children Whose Liberty is Restricted in Despite the recent focus of child rights organisations on the importance of children's own views about decisions that affect them, children who are in conflict with the law are rarely listened to. The following is an extract from the Implementation Handbook on the Convention on the Rights of the Child which looks at article 12 of the Convention (the right to be heard) in relation to children in conflict with the law: Complaints procedures The report on the Committee’s General Discussion on "Administration of juvenile justice" notes that children involved with the juvenile justice system "were ... often denied the right to lodge complaints when they were victims of violation of their fundamental rights, including in cases of ill-treatment and sexual abuse..." (Report on the tenth session, October/ November 1995, CRC/C/46, para. 220) As noted above, the Committee adopted detailed recommendations concerning children’s access to complaints procedures following its General Discussion on "Violence against children" (Report on the twenty-fifth session, September/ October 2000, CRC/C/100, p. 134). Rule 24 of the United Nations Rules for the Protection of Juveniles Deprived of their Liberty (see below for link) requires that "On admission, all juveniles shall be given a copy of the rules governing the detention facility and a written description of their rights and obligations in a language they can understand, together with the address of the authorities competent to receive complaints, as well as the address of public or private agencies and organizations which provide legal assistance. For those juveniles who are illiterate or who cannot understand the language in the written form, the information should be conveyed in a manner enabling full comprehension." Rule 25 says: "All juveniles should be helped to understand the regulations governing the internal organization of the facility, the goals and methodology of the care provided, the disciplinary requirements and procedures, other authorized methods of seeking information and of making complaints, and all such other matters as are necessary to enable them to understand fully their rights and obligations during detention." In addition, rules 75 to 78 require that juveniles have the opportunity to make requests or complaints to the direction of the detention facility and his or her authorized representative, to the central administration, the judicial authority or other proper authorities through approved channels. "Efforts should be made to establish an independent office (ombudsman) to receive and investigate complaints made by juveniles deprived of their liberty and to assist in the achievement of equitable settlements" (rule 77). "Every juvenile should have the right to request assistance from family members, legal counsellors, humanitarian groups or others where possible, in order to make a complaint. Illiterate juveniles should be provided with assistance should they need to use the services of public or private agencies and organizations which provide legal counsel or which are competent to receive complaints." (rule 78) Source: UNICEF (2002), Implementation Handbook on the Convention on the Rights of the Child, pp. 503 - 04 Further information on children's voices in the criminal justice system The UN Secretary-General’s Study on Violence Against Children The UN Secretary-General’s Study on Violence Against Children will be presented during the next session of the United Nations General Assembly on 9 October 2006. The report will present a set of recommendations that are divided into settings in which violence occurs, one of which includes violence against children in the care and justice system. According to recent statements by Professor Paulo Sergio Pinheiro who is leading the Study, special attention should be given to the protection of institutionalised children and children in conflict with the law, with an emphasis on the need to reduce institutionalisation. More specifically, recommendations in the report should include: Save the Children has made six Recommendations to the UN Study, one of which relates to children in conflict with the law. Read the Recommendation. Other mechanisms include: Useful links Regional Mechanisms The African Union The African Charter on the Rights and Welfare of the Child, in Article 17, contains detailed provisions applicable to the administration of juvenile justice. The Charter includes similar provisions to the CRC, but also places the child at the centre of the family and community and puts more emphasis on the responsibilities of the African child. The Special Rapporteur on Prisons and condition of detention in Africa is entrusted to examine the situation of prisons and prison conditions in Africa, and to ensure the protection of persons in detention or in prison. His/her mandate in based on international human rights instruments, including those relevant to children such as: the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the Second Optional Protocol on the Death Penalty , the United Nations Rules for the Protection of Juveniles Deprived of their Liberty, the United Nations Guidelines for the Prevention for the Administration of Juveniles Justice, and the Convention on the Rights of the Child. Other relevant mechanisms include: Inter-American System The American Convention on Human Rights makes provisions for The Right to Humane Treatment in Article 5, the Right to Personal Liberty in Article 7 and the Right to a Fair Trial in Article 8. Below are some landmark cases of children in conflict with the law which have been presented to the Inter-American Court of Human Rights: Walter Bulacio vs Argentina , a case where a 17 year old was detained arbitrarily, and beaten so severely that he died the day after his detention as a consequence of the blows. The case, which is currently being processed before the Court, has reached a friendly settlement, where the State has recognised its responsibility, however, still pending is a resolution from the Inter-American Court that includes standards of protection for detained persons, especially children. Go to: http://www.cejil.org Juvenile detention facilities throughout the region continue to be far from achieving their goal of bringing special assistance, therapy, education etc. to minors in order to guarantee their reinsertion into society and family. This is demonstrated by such cases as, the Centro de Detención FEBEM/SP in Brazil, and the "Panchito López" Reformatory in Paraguay. Both cases explore the potential of the Inter-American System to confront situations where the lack of basic necessities, and the prevelance of violence, cruel, inhumane and degrading actions, including sexual abuse and torture, are the norm. Go to: http://www.cejil.org Minors Detained in Adult Prisons vs Honduras: This case abolished the judicial resolution that allowed judges to send minors to adult penitentiaries. Further information: ILANUD: Penal law as it concerns children in Latin America by country (Spanish) Council of Europe The European Convention on the Exercise of Children’s Rights aims to protect the best interests of children. It provides a number of procedural measures to allow the children to exercise their rights. It sets up a Standing Committee which shall keep under review problems relating to this Convention. The Convention provides for measures which aim to promote the rights of the children, in particular in family proceedings before judicial authorities. The judicial authority, or person appointed to act before a judicial authority on behalf of a child, has a number of duties designed to facilitate the exercise of rights by children. Children should be allowed to exercise their rights (for example, the right to be informed and the right to express their views) either themselves or through other persons or bodies. Among the types of family proceedings of special interest for children are those concerning custody, residence, access, questions of parentage, legitimacy, adoption, legal guardianship, administration of property of children, care procedures, removal or restriction of parental responsibilities, protection from cruel or degrading treatment and medical treatment. Each Party is required to specify at least three categories of family proceedings to which this Convention is to apply. This European legal instrument will also facilitate the implementation by Parties of the United Nations Convention on the rights of the child. Further information: http://www.crin.org/resources/infoDetail.asp?ID=9692&flag=report Other information
The Committee has interpreted article 12 of the Convention as requiring the provision of complaints procedures for children and has highlighted the particular need for complaints procedures for children whose liberty is restricted.
Go to: http://www.cejil.org