Toolkit on Diversion and Alternatives to Detention

Child Rights and International Legal Framework

A. Child rights & the international legal framework

• Introduction
• List of relevant international and regional human rights instruments
• Detailed analysis of provisions
• Violation of children's rights in detention
• Avoiding violation of children's rights in diversion & alternatives
• Summary
 
Introduction
States have an obligation to ensure that children in conflict with the law benefit from diversion and alternatives to the greatest extent possible, in the context of international co-operation where necessary.

The importance of diversion and alternatives to detention for children in conflict with the law is set out in numerous international human rights law instruments. At least 15 different international human rights instruments and related guidelines, dating from 1955 to 2009, contain a staggering total of 77 articles, rules, guidelines or provisions supporting diversion and alternatives for children in conflict with the law.
Of these 77 articles and provisions: 10 are legally binding on States which have ratified the relevant instruments (of which 4 are from the CRC - Articles 37(b), 40.1, 40.3(b) & 40.4); 22 are paragraphs from the General Comments of the Committee on the Rights of the Child; and 45 are taken from the body of UN rules and guidelines relevant to this area. Furthermore, 4 regional human rights instruments contain a total of 14 articles relevant to diversion and alternatives, all of which are legally binding on States which have ratified them.

Scroll down the page for a list of these instruments and a detailed analysis of their provisions.
 
List of relevant international and regional human rights instruments

International - specific to children:
     • Convention on the Rights of the Child (1989)
     • Committee on the Rights of the Child – General Comment No. 10 (2007) – Children’s rights in juvenile justice; General Comment No. 12 (2009) – Right of the child to be heard; General Comment No. 9 (2006) - The rights of children with disabilities; General Comment No. 11 (2009) – Indigenous children and their rights under the Convention
     • United Nations Standard Minimum Rules for the Administration of Juvenile Justice (‘Beijing Rules’) (1985)
     • United Nations Rules for the Protection of Juveniles Deprived of their Liberty (‘JDLs’ or ‘Havana Rules’) (1990)
     • United Nations Guidelines for the Prevention of Juvenile Delinquency (‘Riyadh Guidelines’) (1990)
     • Guidelines for Action on Children in the Criminal Justice System (Annex to UN Resolution 1997/30 – Administration of Juvenile Justice (‘Vienna Guidelines’)) (1997)
     • United National Common Approach to Justice for Children (2008)

International - apply to both children and adults:
     • International Covenant on Civil and Political Rights (ICCPR) (1966)
     • United Nations Standard Minimum Rules for Non-custodial Measures (‘Tokyo Rules’) (1990)
     • Standard Minimum Rules for the Treatment of Prisoners (1955)
     • Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (1988)
     • Guidelines on the Role of Prosecutors (1990)

Regional - specific to children:

     • [Organisation of African Unity] African Charter on the Rights and Welfare of the Child (ACRWC) (1990)

Regional - apply to both children and adults:

     • [OAS] American Convention on Human Rights (1978)
     • [Council of Europe] Convention for the Protection of Human Rights and Fundamental Freedoms (1950 / as amended by Protocol No. 11 - 1998)
     • [League of Arab States] Arab Charter on Human Rights (2004)
 
Detailed analysis of provisions
A detailed analysis has been produced for this toolkit summarising all of the provisions referred to above which support the use of diversion and alternatives for children in conflict with the law. The document includes: an overall comment on each instrument and its relevance for diversion and alternatives; prioritisation of instruments in terms of their legal weight, specific reference to children and direct relevance to diversion and alternatives; the text of the original articles / provisions; a commentary on each provision in relation to diversion and alternatives. Click the link below to download the full document.

'International human rights instruments relevant to diversion and alternatives to detention – summary of provisions and commentary' [Word, 218kb]

For the full text of each of the instruments listed here, refer to the 'Resources' section of the toolkit.  
 
Violation of children's rights in detention
In addition to the international legal provisions directly in support of diversion and alternatives, it should also be acknowledged that one the main reasons for promoting alternatives in the first place is that it is very difficult to respect children's rights whilst in detention. The most obvious concern is the right to protection from physical, sexual and emotional violence in police custody[1], pre-trial detention and post-trial detention at the hands of fellow detainees, staff or even self-harm (including suicide).[2] However, 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 and an adequate standard of living; discrimination; violation of the right to be heard; interference with privacy and family life; and violation of other civil and political rights (e.g. freedom of thought, conscience, religion, association, expression and protection of legal / procedural safeguards in relation to deprivation of liberty) [3]: “(…) the act of putting children in prison can be the first step towards the violation of a vast range of their fundamental rights, from health and protection from violence, to family life and harmonious development.”[4]
 
Avoiding violation of children's rights in diversion & alternatives
This toolkit supports the use of diversion and alternatives which are child rights-based. This means that:
     • Children's individual situations and needs must be properly assessed to ensure that:
          o diversion or alternatives are in the child's best interests;
          o diversion or alternatives contribute positively to the child's survival and development;
          o responses address the underlying causes of offending behaviour in order to prevent recidivism.
     • The legal safeguards for diversion and alternatives (and for restorative justice, where appropriate) - as set out in the 'definitions' section of the toolkit - must be respected (consent, privacy etc.).

Poor quality diversion and alternatives which do not respect these principles may result in negative outcomes for children and communities. 
 
Summary
    • At least 15 different international human rights instruments and related guidelines contain a total of 77 articles, rules, guidelines or provisions directly relevant to diversion and alternatives for children in conflict with the law of which 10 are legally binding on States which have ratified the relevant instruments (4 are from the CRC); 22 are paragraphs from the General Comments of the Committee on the Rights of the Child; and 45 are taken from the body of UN rules and guidelines relevant to this area. Furthermore, 4 regional human rights instruments contain a total of 14 articles relevant to diversion and alternatives, all of which are legally binding on States which have ratified them.
     • Summary of provisions which are legally binding on States which have ratified the instruments (paraphrased):
Convention on the Rights of the Child:
        o Deprivation of liberty shall not be unlawful or arbitrary and shall be used only as a last resort and for the shortest appropriate period of time (Art. 37(b));
        o Treatment of children in conflict with the law shall respect their dignity and worth, reinforce the child's respect for the rights and freedoms of others, and take into account their age and promotion of social reintegration (Art. 40.1);
        o Diversion to be promoted where appropriate and respecting human rights and legal safeguards (Art. 40.3(b));
        o A variety of proportionate alternatives to post-trial detention shall be available which ensure that children are dealt with in a manner appropriate to their well-being (Art. 40.4).

International Covenant on Civil and Political Rights:
        o Pre-trial detention shall not be the general rule, although release may be subject to certain guarantees (Art. 9.3);
        o Right to challenge unlawful detention and to secure release if detention is deemed unlawful by a court (Art. 9.4);
        o Enforceable right to compensation in the case of unlawful arrest or detention (Art. 9.5);
        o Separation of children from adults; children shall be brought as speedily as possible for adjudication (Art. 10.2(b));
        o No detention for those who are unable to fulfil a contractual obligation (Art. 11);
        o Procedures for children must take account of their age and promoting their rehabilitation (Art. 14.4).

African Charter on the Rights and Welfare of the Child:
        o Children in conflict with the law to have special treatment, consistent with their dignity and worth and which reinforces their respect for the rights and freedoms of others (Art. 17.1);
        o Aim of trial and sanctions is the rehabilitation and social re-integration of children in conflict with the law (Art. 17.3).

American Convention on Human Rights:
        o Anyone detained shall be brought promptly to trial and may be released pending trial, although release may be subject to certain guarantees (Art 7.5);
        o Children have the right to protection (interpreted by the the Inter-American Court of Human Rights to encompass all rights included in the CRC - including 37b, 40.1, 40.3(b) & 40.4) (Art 19).

Council of Europe Convention for the Protection of Human Rights and Fundamental Freedoms:
        o Right to liberty except in certain circumstances prescribed by law (protection from aribtrary and unlawful detention) and legal detention must be 'reasonably considered necessary' (Art.5.1);
        o Anyone detained shall be brought promptly to trial and may be released pending trial, although release may be subject to certain guarantees (Art. 5.3).

Arab Charter on Human Rights:
        o Protection from arbitrary and illegal detention (Art. 14.1 & 14.2);
        o Right to speedy adjudication and promotion of alternatives to pre-trial detention, although release may be subject to certain guarantees (Art. 14.5);
        o Right to challenge unlawful detention and to secure release if detention is deemed unlawful by a court (Art. 14.6);
        o Right to compensation in the case of unlawful arrest or detention (Art. 14.7);
        o Children in conflict with the law have the right to special treatment which promotes rehabilitation and reintegration (Art. 17);
        o No detention for those who are unable to fulfil a contractual obligation (Art. 18);
        o Children in conflict with the law have the right to protection, survival, development, well-being, freedom, dignity and to have their best interests considered (Art. 33.3).

• It is extremely difficult to safeguard children's rights in detention - not just protection from violence, but a broad range of the civil, cultural, economic, political and social rights set out in the CRC.
• In order to avoid negative outcomes for children and communities, care must be taken to ensure that diversion and alternatives are child rights-based and address the underlying causes of offending behaviour in order to prevent recidivism. The legal safeguards for diversion and alternatives (and for restorative justice, where appropriate) - as set out in the 'definitions' section of the toolkit - must be respected.
• States have an obligation to ensure that children in conflict with the law benefit from diversion and alternatives to the greatest extent possible, in the context of international co-operation where necessary.
 
Footnotes:
1. "In custody and at the hands of the police, children face the greatest risk of harassment, violence and even torture, even if they are only held a few hours. Girls are especially vulnerable to sexual abuse (Pinheiro, 2006). The absence of protection from adults – parents, social workers and legal representatives – compounds children’s vulnerability to violence. In fact, the ill-treatment of children and unlawful investigative methods used on arrest are concerns noted by the Committee on the Rights of the Child." Lost in the Justice System: Children in Conflict with the Law in Eastern Europe and Central Asia, UNICEF, 2008, p.26.
2. "Institutions housing children are often isolated from the community and closed to public scrutiny. They invariably lack effective complaint mechanisms, monitoring and oversight. Perpetrators of violence are rarely held accountable, allowing high rates of violence to continue unchecked and perpetuating a culture of tolerance towards violence against children. Furthermore, the impact of institutionalization – be it in the name of ‘protection’, ‘rehabilitation’ or ‘punishment’ – goes beyond the immediate exposure of children to violence in the institution. The longterm effects of institutionalization place children at risk of becoming victims of violence in the future – they have a higher risk of committing suicide, being trafficked and getting involved in criminal activity (Pinheiro, 2006)." Lost in the Justice System: Children in Conflict with the Law in Eastern Europe and Central Asia, UNICEF, 2008, p.42.
3. For more details on this subject, see e.g. Children Deprived of Liberty: Rights and Realities, Geert Cappelaere with the assistance of Anne Grandjean and Yasmin Naqvi, Defence for Children International, 2005 available in the 'Resources' section of the toolkit (By theme' / 'Detention').
4. Tomasevki, K., Children in Adult Prisons, Defence for Children International, Frances Printer, London, 1986, p. 3, cited in ibid, p.195.

 

 


 

 

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