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Summary: This report extracts mentions of children's rights issues in the reports of the UN Special Procedures. This does not include reports of child specific Special Procedures, such as the Special Rapporteur on the sale of children, child prostitution and child pornography, which are available as separate reports. Reports: ______________________________________________________________________________ UN Special Rapporteur on Torture International Obligations: Jamaica is party to most major United Nations human rights treaties, including the International Covenant on Civil and Political Rights; the International Covenant on Economic, Social and Cultural Rights; the Convention on the Elimination of All Forms of Discrimination against Women; the International Convention on the Elimination of All Forms of Racial Discrimination; the Convention on the Rights of the Child; the Convention on the Rights of Persons with Disabilities; and the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. Jamaica is not yet party to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment or to the Optional Protocol thereto. (Paragraph 8) Death Penalty: Sections 2 and 3 of the Offences against the Person Act state that the death penalty may be imposed for capital murder when the victim is a public official, witness or juror. It may also be imposed for murder in the course of robbery, burglary or sexual violence. A pregnant woman who is found to be guilty of these offences may not be put to death. In addition, juveniles may not be sentenced to death.5 The death penalty has not been carried out since 1988, pursuant to the 1993 Privy Council decision of Pratt and Morgan v. Jamaica. In the decision, the Privy Council stated that “in any case in which execution is to take place more than five years after sentence, there will be strong grounds for believing that the delay is such as to constitute ‘inhuman or degrading punishment or other treatment’”. On 26 November 2008, parliament voted to keep the death penalty. At the time of the visit, six people remained on death row. (Paragraph 25) Juvenile Justice: The Child Care and Protection Act (2004) establishes criminal responsibility at age 12 (section 63). Upon arrest, a child must be taken forthwith before a court. If this is not possible, the office of police in charge of the police station informs the Office of the Children’s Advocate, releases the child on bail or detains the child in a children’s remand centre until the child can be brought before a court (section 67). All matters dealing with charges against a child or in relation to a child in need of care or protection are heard by the Children’s Courts (section 72(1)) and the parents or legal guardians of the child are required to attend the court at all stages of the proceedings (section 69(1)). (Paragraph 26) The Child Care and Protection Act also states that children should be kept separate from adults at police stations and courts (sections 66(a) and (b)). However, if the court so decides, a juvenile may be committed to an adult correctional centre (section 68(b)). In certain circumstances, including murder or manslaughter, treason or infanticide, and if the court is of the opinion that no other methods are suitable, a juvenile may be sentenced to up to 25 years of imprisonment (section 75(8)). (Paragraph 27) Section 9 of the Child Care and Protection Act prohibits assaulting and physically or mentally ill-treating a child, punishable by fine or imprisonment with hard labour not exceeding five years. Additionally, a child in a place of safety or children’s home has the right to be free from corporal punishment (section 64(d)). In this regard, a children’s home may be visited at all reasonable times by any person authorized by the minister or by an officer of the Jamaican Constabulary Force, not below the rank of Deputy Superintendent, for the purpose of ensuring that the children receive adequate care and attention (section 54). (Paragraph 28) The Child Care and Protection Act also created the Office of the Children’s Advocate to protect and enforce children’s rights. The Children’s Advocate may conduct investigations into complaints of authorities infringing on a child’s rights. The Children’s Advocate may also bring non-criminal proceedings to court concerning the rights or best interests of children. (Paragraph 29) Juveniles may be detained if they are in need of care and protection, if deemed uncontrollable or if in conflict with the law. With regard to an “uncontrollable child”, there is no clear definition or criteria for its identification in the legislation. The wide discretion currently allowed to the judiciary has led to a relatively large number of detentions of children under such orders. According to the Office of the Children’s Advocate, in 2008 alone, almost 20 per cent of children in detention facilities were there for uncontrollable behaviour. (Paragraph 30) Domestic Violence: The Domestic Violence Act of 1996 was amended in order to give women the possibility of applying through the court system for a protective order (section 3(1)). It also gives police officers the same possibility concerning children in situations of domestic violence (section 3(2)(b)(v)). The violation of a court-issued protection order is punishable by a fine and/or by a prison term of up to six months (section 5(1)). However, owing to additional gaps in the legislation, the Government has recently engaged with civil society to make the necessary amendments. (Paragraph 31) Incarceration: Children and juveniles in need of care and protection, uncontrollable juveniles and those in conflict with the law are often held together without distinction. The lack of separation makes it extremely difficult, if not impossible, to address the individual needs of children, be it in terms of protection or rehabilitation. Additionally, there should not be one single model for all children in detention with regard to levels of security, access to education, recreation and family visits. Regarding uncontrollable children, the Special Rapporteur was greatly concerned at the lack of a clear definition or criteria for the identification of an uncontrollable child and the wide discretion afforded to the judiciary, which led to a relatively high number of detentions of uncontrollable children. He was further concerned by the fact that many children seemed to receive disproportionately long sentences for minor infractions. (Paragraph 50) The Special Rapporteur witnessed two opposite ends of the spectrum in the conditions of detention in the places visited. At Diamond Crest Juvenile Correctional Centre for girls, the Special Rapporteur could sense an overall positive atmosphere and the well-being of the girls. The openness of the facility and the genuine interest of the staff were very reassuring. The girls went to school, had the opportunity to practice sports and spend time outside and do other recreational activities. Perhaps more important was the fact that their dormitories did not have locks and the grills surrounding the veranda by the dormitories remained open most of the day. (Paragraph 51) The Hill Top Juvenile Correctional Centre for boys is a closed facility. The Special Rapporteur received complaints of ill-treatment, although the punishment cells were apparently not used very frequently. The boys also went to school and were allowed to play sports outdoors for several hours each day, although they were not allowed to go outside during the weekends. (Paragraph 52) By contrast, St. Andrew Juvenile Remand Centre for boys was governed by a system of repression and regular corporal punishment. Only the boys who had been sentenced were allowed to go outside for specific projects, while those on remand were never allowed to leave the buildings, thus deprived of any recreational activities in the open air. The Special Rapporteur also received numerous allegations of corporal punishment, including beatings on the buttocks with wooden boards and being forced to kneel for prolonged periods of time with their hands in the air. The acting overseers admitted that kneeling was used as punishment. They seemed to be aware of the use of corporal punishment by certain warders, and although they stated that an internal investigation was initiated when a boy presented a complaint, they did not give the impression of taking serious measures to deal with the situation. At the time of the visit, four persons were interdicted, but their investigations had been ongoing for almost four years, with no concluding date in sight. (Paragraph 53) Also worrying was the fact that the Fort Augusta Correctional Centre for Women and the Horizon Remand Centre for men are adult institutions that also hold children. At Fort Augusta, although the girls had separate dormitories, they were not segregated from the women, in contravention of international human rights standards. This was also the case at police stations, where the Special Rapporteur expressed concern that children were held together with adults, as was the case at Montego Bay police station. The current practice of confining children in institutions equipped and staffed for adults cannot meet their special needs. Children should be placed in adequate, specialized facilities. (Paragraph 54) Incident at the Armadale Juvenile Correctional Centre: The Special Rapporteur interviewed several girls who had witnessed the fire at the Armadale Juvenile Correctional Centre on 22 May 2009. In addition, he was provided with a copy of the report of the Armadale enquiry, although it has not yet been made public. The Commission of Enquiry was tasked with investigating the causes and consequences of the fire; the response of the management to the outbreak of the fire; the behaviour of the children detained at the institution before and during the fire; and the response of the emergency services and the effect these had on the origin, control and consequences of the fire. (Paragraph 55) According to the report, the Office dormitory, which was consumed by the fire, contained seven double-bunk beds with 14 mattresses, and measured 20 feet by 12 feet. The dormitory had been considered unfit for occupancy by the Property Manager for the Correctional Department since May 2007. Despite attempts to move some of the girls to other offices, 23 girls were held at the Office dormitory on 22 May. (Paragraph 56) In addition to the overcrowding, the girls had been in lockdown since 7 May. Lockdown was used as a form of collective punishment, in contravention of international human rights standards. The recurrent use of lockdown deprived the girls of all outdoor activities for extended periods. All meals were served in the dormitory, and no knives, forks or spoons were provided. The use of the bathroom was restricted to one hour in the mornings. Additionally, most classes were cancelled during lockdown. According to the report, new arrivals were placed in lockdown for two weeks at Armadale. (Paragraph 57) On the day of the fire, six girls attempted to break out by removing the grills covering the windows. The girls threw faeces, urine, water and other articles at the officers, who hit the girls with sticks to keep them inside. The supervising correctional officer then summoned assistance, and two police officers arrived at Armadale. One of the officers threw a teargas canister into the dormitory, which fell onto a bed and started the fire upon contact with a foam mattress. A second fire started when the smoke from the teargas combined with an accelerant found in the dormitory. The door of the dormitory was never opened, so the girls had to jump out through the front and rear windows. One of the correctional officers continued hitting the girls to ensure they stayed inside, despite the fact that the dormitory was on fire. Seven girls died as a result of the fire, and many others were injured. (Paragraph 58) The report concludes that the use of teargas was an unlawful use of force by the police officer, and that the dormitory door should have been promptly unlocked. In addition, most of the fire extinguishers were not recharged, despite continuous requests addressed to the Department of Correctional Services. The report recommends that lockdown be discontinued and that the Commissioner of Corrections and the Children’s Court be made aware when a facility reaches its maximum capacity so that no additional child is sent there. It also recommends that a board of visiting judges be appointed to conduct regular visits and review the facilities at juvenile correctional centres. Lastly, it recommends that the statements and evidence obtained by the enquiry and the final report be submitted to the Director of Public Prosecutions for consideration on whether any criminal acts were committed. (Paragraph 59) On 2 March 2010, the Prime Minister addressed parliament on the report of the Armadale enquiry. He stated that, although resource constraints imposed a heavy burden on officers working in juvenile detention facilities, they “cannot explain or excuse negligence or inertia”.11 He also noted that the Correctional Services should not be responsible for juvenile correctional and remand facilities, because they are trained to deal with adult criminal offenders and not with children in conflict with the law. In this regard, he outlined several measures under way to address some of the problems concerning children in correctional facilities, including placing juvenile correctional and remand facilities under the Child Development Agency. Additional measures include renovating certain buildings and transferring certain children to ensure that children in remand are held in separate facilities from those under correctional orders. (Paragraph 60) Taking into account the conclusions of the report, as well as the interviews held with the girls and one official who was at Armadale on the day of the fire, the Special Rapporteur considers that the deaths and the physical and psychological suffering of the girls could have been prevented. The frequent use of lockdown, made particularly worse by the overcrowding and unhygienic conditions, was not conducive to the rehabilitation of the girls, as it created a climate of tension and frustration. Most of the girls were also not receiving appropriate medical and psychiatric treatment, furthering their anxiety. In addition, the girls were not classified according to their cause of detention; some girls in the Office dormitory were there under court orders, while others were there only because they were in need of care and protection from the State. The Special Rapporteur expects that those responsible be brought to justice and held accountable. (Paragraph 61) With regard to children, the Special Rapporteur expressed concern over the fact that children in need of care and protection by the State, those deemed uncontrollable and those in conflict with the law were held together in detention facilities without distinction. Equally disturbing was the lack of a clear definition or criteria for the identification of an uncontrollable child, and the wide discretion afforded to the judiciary to make this decision. Another concern was the fact that children were held together with adults in police stations, as was the case in the Horizon Adult and Juvenile Correctional and Remand Centre, where boys and girls were held in the same facility as adults, albeit in separate sections, and in the Fort Augusta Adult and Juvenile Correctional Centre, where the girls were not segregated from the women. (Paragraph 72) Remove all children in conflict with the law from adult detention facilities, and ensure that children in need of care and protection from the State are not held with those in conflict with the law; (Paragraph 77o) Transfer the responsibility of places of detention for juveniles to the Child Development Agency ; (Paragraph 77p) Establish clear guidelines concerning punishments at children’s homes, places of safety and correctional facilities, and ensure that its use is recorded in the register; (Paragraph 77q) Corporal Punishment: The Special Rapporteur was informed that there were several ministerial orders banning corporal punishment, including in schools, which he took as a positive sign. While the Child Care and Protection Act prohibits the application of corporal punishment in State- run facilities, which the Special Rapporteur notes as a positive development, it does not include any provisions banning corporal punishment in the domestic sphere. The Special Rapporteur was concerned that the use of corporal punishment appears to be deeply entrenched in Jamaican society. The Special Rapporteur witnessed as much at the St. Andrews Juvenile Remand Centre, where the use of corporal punishment on boys was rather frequent, as well as in detention facilities for adults. (Paragraph 66) Although the conditions in correctional facilities were better, they still varied and were generally overcrowded, lacked water and sanitary facilities, as well as meaningful opportunities for education, work and recreation, necessary for the rehabilitation and re-socialization of detainees. Consistent allegations of routine corporal punishment were also received from facilities for adults and children. The conditions for women were generally better, and there was a strict separation between male and female detainees. The situation for persons with mental disabilities, held together with other detainees rather than in separate psychiatric institutions where they could receive adequate medical attention, was a concern. (Paragraph 71) ______________________________________________________________________________ UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions Individual Cases: Janice Allen and her family. On 29 May 2001 the Special Rapporteur transmitted an urgent appeal on behalf of the family of Janice Allen, a 13-year-old girl, who was reportedly shot dead by Jamaican police in April 2000. Furthermore, Janice Allen’s relatives had allegedly been threatened with death by the police. Her brother was allegedly arrested and detained for over 12 hours without charge in incommunicado detention. Her sister was reportedly chased out of Hunts Bay Police Station and threatened when she attempted to locate her brother. (Paragraph 32) During the visit, the Government informed the Special Rapporteur that a police constable had been charged in May 2001 for the murder of Janice Allen. The case was still pending before the court. This case had also been monitored by the Police Public Complaints Authority and the investigation was also supervised by the PPCA. In May 2001 the case was referred to the DPP, who ruled that the police officer in question should be charged. During the visit, the Special Rapporteur also spoke to the mother of Janice Allen, who had sent her young daughter away from Kingston because of continued threats to her and her family for pursuing the case against the accused policeman. She was distressed at the open threats made to her even on court premises. No action was taken against those intimidating her despite complaints to the police. The threats had occurred starting in April 2000 and were continuing at the time of the visit of the Special Rapporteur in February 2003. The trial appeared to be far from conclusion despite the interest shown in this case. (Paragraph 33) Richard Williams. On 17 September 2001 the Special Rapporteur transmitted an allegation to the Government of Jamaica concerning Richard Williams - a teenager - who was reportedly apprehended, beaten and subsequently shot by police officers in Spanish Town Road, Kingston, in June 2001. His mother, who tried to come to his rescue, was allegedly also beaten and suffered injuries which required medical attention. During the visit the Special Rapporteur met with the mother of Richard Williams and visited the place where he was killed. (Paragraph 34) Prior to the visit, the Government had responded in 2001 that investigations had been carried out. During the visit, the Government informed the Special Rapporteur that three police officers had been charged in May 2002 in connection with the murder of Richard Williams. Another police officer had absconded/deserted when charged. It should be noted that the PPCA had conducted the investigation into the incident and, based on its findings and the forensic evidence presented, the DPP ruled in May that the officers should be charged. (Paragraph 35) Braeton 7. On 14 March 2001 police officers from the CMU and the St. Catherine South Division approached a small house in Braeton, a suburb of Kingston. A short time later, seven youths had been shot dead: Reagon Beckford, aged 15, Lancebert Clark, 19, Christopher Grant, 17, Curtis Smith, 20, Andre Virgo, 20, Dane Reynaldo Whyte, 19, and Tamayo Wilson, 20. According to the police, officers went to arrest Christopher Grant in connection with a murder. They identified themselves as police officers, called for the door to be opened and only fired on the house after coming under heavy fire from those inside. Police say that others in the house escaped and that, after the firing subsided, they discovered the bodies of the seven young men and took them immediately to Spanish Town Public Hospital. (Paragraph 45) However, other accounts suggest that the seven young men and boys were extrajudicially executed by the police inside the house. Amnesty International has followed the case closely, and in March 2003 a very detailed report was issued on this case which contains very strong indications that at the very least the account of the police is not correct. The case has been before the Coroner’s Court and the jury returned a split vote. The case is being prepared for transfer back to the DPP for his ruling. The Special Rapporteur understands that because of the split vote in the Coroner’s Court, the case has to be presented yet again before the Court for a new ruling by another jury. (Paragraph 46) During the mission, the Special Rapporteur visited the house where the seven boys and young men were killed; she also spoke to people living in the neighbourhood. (Paragraph 47) There is no doubt in the mind of the Special Rapporteur that the police version was not correct. Oral testimonies of neighbours and the situation around the scene as well as the location of bullet holes do not appear to support the version presented by the police. An individual (name on record with the Special Rapporteur) informed the Special Rapporteur that television footage recorded by a television crew who filmed the scene soon after the shoot-out allegedly showed some of the bodies of the dead being recovered with their arms stretched over their heads in rigor mortis. Apparently this television station was later “pressured” not to broadcast this footage. (Paragraph 48) The Braeton 7 and other incidents show that the police apparently make no effort to preserve the scene of the incidents. Dead bodies are removed immediately and the area is not cordoned off. When the Special Rapporteur brought this up with the police officials, they explained that they carry the wounded and dead to hospitals so that they cannot be blamed for deaths resulting from a lack of immediate medical attention. (Paragraph 49) The West Kingston Commission of Enquiry (June 2002) into the incident at Tivoli Gardens (7 July 2001), where 27 persons, including one member of the JCF and another of the JDF, were killed, went out of its way to completely exonerate members of the security forces. By its own admission in paragraphs 10.12 to 10.14 of its report, no conclusion could be drawn with respect to identifying the weapons responsible for the deaths. In one case a young girl, who was lying on a bed in her room, was shot dead. An unresolved issue cannot be the subject of a definitive conclusion, as was done by the Commission. (Paragraph 76) Capital Punishment: Furthermore, the Special Rapporteur was concerned to find that two inmates, Dean Nelson and Donovan Clarke, had been sentenced to death for crimes they had allegedly committed before reaching the age of 18. This was brought to the attention of the authorities who promised to investigate the matter. The Special Rapporteur was assured that the Government was committed to observing the safeguards and restrictions on the death penalty in regard to minors. (Paragraph 57) Capital punishment should not be imposed on minors or the mentally ill. An investigation should be undertaken to ensure that safeguards and restrictions on the imposition of capital punishment have been observed and, for future protection of the norms and safeguards, the judiciary should be thoroughly acquainted with them. (Paragraph 95)
Please note that the language may have been edited in places for the purpose of clarity.
Manfred Nowak
(A/HRC/16/52/Add.3 )
Country visit: 12 to 21 February 2010
Report published: 11 October 2010
Asma Jahangir
(E/CN.4/2004/7/Add.2 )
Country visit: 17 to 27 February 2003
Report published: 26 September 2003