Safeguarding Children in Detention: Independent Monitoring Mechanisms for children in detention in MENA

Summary: This Handbook examines how national-level independent monitoring mechanisms can help respect, protect and fulfil the rights of children who are in detention in the Middle East and North Africa region.

Introduction

1.1 Background

International standards are clear that children should only be detained in custody as a last resort and for the minimum necessary period. The vast majority of children in conflict with the law should be diverted from the formal criminal justice system and alternative sanctions which promote their rehabilitation and reintegration into society should be used. Detention should be an exceptional measure which is used only for a small minority of children who have committed serious and violent crimes and the best interests of the child should be a primary consideration at all stages of the criminal justice system. Institutions which hold children should have their rehabilitation and reintegration as the main objective of all policies and processes.

However, large numbers of children are still detained every year and are growing up in detention facilities where they face severe violations of their rights. This is the case for all forms of detention including police custody, pre and post-trial detention and adminstrative, immigration or ‘protective’ detention. Children are frequently held in adult prisons in breach of national legislation and international standards stipulating that children should be held in separate facilities. Children in detention are often isolated from the community in institutions which are subject to little external scrutiny and where violations of their rights can go unmarked and unnoticed.

They face severe disruption to their education and moral development and are deprived of family and other support at a critical time in their lives. They can be vulnerable to torture or other cruel, inhumane or degrading treatment or punishment. They face violence, abuse, neglect and exploitation at the hands of fellow detainees and staff. Girls can be especially vulnerable to sexual abuse. As well as the threat of violence and abuse, rights violations in detention can also include: physical and emotional neglect; malnutrition; the absence of treatment for physical or mental illness; psychological trauma; lack of education, rest, play, leisure and other conditions necessary for healthy development; discrimination; violation of the right to be heard; interference with privacy and family life; and violation of other civil and political rights such as freedom of thought, conscience, religion, association, expression and protection of legal and/or procedural safeguards in relation to deprivation of liberty.

All children have rights, everywhere and at all times. Children who are in detention do not lose their rights and are entitled to all the rights enjoyed by their peers in the community, apart from being deprived of their liberty. Children have particular survival and developmental rights that differ from those of adults as a result of their rapid physical and psychological development. Childhood is a crucial time and deprivations of food, clean water, shelter, play, healthcare and education can have an irreversible impact that can last for the rest of their lives; for example, inadequate nutrition can stunt mental and physical development irreparably and lack of education can dramatically reduce a child’s opportunities as an adult.

Children are also entitled to the freedom to express opinions and to have a say in matters affecting their social, economic, religious, cultural and political life.

Because of their heightened vulnerability, children in detention are entitled to all human rights granted to adults’ but also to additional services and protection. In order to safeguard children's rights in detention, it is very important that detention facilities are ‘open’ to families and to the community at large as far as possible. This encourages detention facilities to be transparent and accountable for realising the rights of the children in their care. It also helps children to be rehabilitated and reintegrated into society on their release. It gives the public confidence that detention facilities are well managed and doing their utmost to ensure that children are being rehabilitated and consequently are less likely to offend in future.

Public scrutiny may be guaranteed in a number of ways, including ensuring access for children’s families and friends, NGOs, religious bodies, human rights institutions and ombudspersons, lawyers, media, and judges. A crucial aspect of this ‘openess’ and scrutiny is the inspection and monitoring of detention facilities where children are held by independent bodies which are not under the same administrative authority as the prison system. The international standards are clear that independent and qualified bodies should visit detention centres on a regular basis and have full access to detention facilities, and freedom to interview children and staff in private. These bodies should have the capacity to make unannounced visits, to monitor treatment and conditions, and to investigate any allegations in a timely manner. In addition, children in detention should also have access to independent complaints mechanisms.

1.2 Aims of this Handbook

This Handbook examines how national-level independent monitoring mechanisms can help respect, protect and fulfil the rights of children who are in detention by:

• Highlighting, deterring and preventing violence and abuse against children who are a particularly vulnerable group in detention facilities.
• Opening up the issue of children in detention to the public eye.
• Identifying challenges and changes needed in policy, practice and legislation.
• Bringing to light good practice in the treatment of children in detention which can be replicated elsewhere.
• Providing a protective mechanism for detention facility employees against unfounded criticism and supporting employees who want to resist involvement in bad practice.
• Holding those in charge accountable for what happens to children in their detention facilities.
• Giving children who are held in detention a voice.

This Handbook is aimed primarily at officials responsible for establishing and strengthening monitoring mechanisms. It is also of interest to all those engaged in monitoring detention facilities including judges, lawyers and members of civil society organisations.

It examines the key components of an effective and independent national level monitoring mechanism. It presents a series of options and issues that monitoring bodies may find useful to improve the effectiveness of their work with children in detention. It looks at how monitoring bodies can prepare themselves to deal with a difficult task in often very challenging conditions and how they can ensure that their recommendations ultimately lead to improvement in the treatment of children in conflict with the law.

1.3 Children in detention in MENA

This Handbook specifically examines the role that national level independent monitoring mechanisms can play in ensuring the rights of children in detention in five selected countries in the Middle East and North Africa (MENA) region: Algeria, Egypt, Jordan, Morocco and Yemen. Children in detention in these countries are frequently subject to very harsh treatment and the need for independent monitoring mechanisms is high.

Children in detention in MENA are subject to police violence during arrest, interrogation and detention in police stations. They are held for lengthy periods in pre-trial detention for very minor offences or following public disorder. They experience violence in pre and post trial detention including unreasonable disciplinary measures and physical and sexual harrassment by adult detainees, by prison staff and by peers. Systems to ensure they are detained separately from adults are often not put in place and precise data concerning their cases are frequently missing.

They experience poor detention conditions including overcrowding, poor sanitary facilities and lack of access to education. Little is done to rehabilitate them or reintegrate them into society following detention. In Yemen in particular the lack of adequate mechanisms for determining the ages of defendants who lack birth certificates is a significant issue. As a consequence many children are tried as adults and detained in adult facilities because their age has not been accurately verified by the court. The implications of this are extremely serious not least because children who are being tried as adults may face the death penalty.

The objectives of this Handbook are specifically to strengthen and support the establishment of regular, rigorous monitoring of detention facilities for children in the MENA region by independent trained and qualified staff. It also aims to develop understanding in the MENA region of international and regional children’s rights standards regarding monitoring mechanisms. It is organised according to the following sections:

• Overview of international and regional human rights standards regarding monitoring mechanisms with particular relevance to the MENA region.
• The key elements of a robust and rigorous monitoring mechanism which is in conformity with international standards including practical examples of good practice internationally.
• A preliminary mapping of monitoring mechanisms currently in operation in Algeria, Egypt, Jordan, Morocco and Yemen looking at legislative provision as well as implementation.
• Guidance on strengthening independent monitoring mechanisms of detention facilities for children within the MENA region.