States Parties shall ensure that:
(a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age;
(b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time;
(c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child’s best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances;
(d) Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.
-UN Convention on the Rights of the Child
Overview of Article 37
Articles 37 and 40 share a common genesis in the several rounds of working sessions leading to the adoption of the UNCRC. After much debate it was decided that the provision would be divided into two separate articles with the first one dealing with the prohibition of the death penalty and cruel treatment and with child deprivations of liberty and the second article would set out the minimum standards of fairness for criminal trials involving minors. In both instances emphasis upon the child’s human dignity and the rehabilitation and reintegration of youth would be paramount concerns and the provisions were drafted with close attention to emerging global standards in the area and with existing human rights treaty provisions [1, 2]. The final text of Article 37 makes it clear that this right extends well beyond the ambit of child justice administration to all situations where children may be deprived of liberty, including for instance in child protection settings, health care settings or in immigration settings.
Article 37 can be analysed succinctly in accordance with its four constituent paragraphs:
- A prohibition on torture or degrading treatment, specifically ruling out capital punishment and life imprisonment without parole for minors;
- The prohibition in paragraph b) of unlawful and arbitrary deprivations of liberty, insisting that such sanctions are a measure of last resort that must only be imposed for the shortest appropriate time period;
- Limitations on the deprivation of liberty including the core commitment in paragraph c) to upholding the child’s inherent dignity and right to be treated with humanity in such circumstances; and finally
- The article establishes in paragraph d) the minimal due process guarantees which must accompany any child’s deprivation of liberty
While youth criminal justice practice varies greatly from State to State, Articles 37 and 40 have emerged as a codification of global standards set out in the Beijing Rules and a summary prompt to the adoption of guidelines and minimum rules for the protection of children deprived of liberty and the prevention of youth crime [3]. Its provisions should therefore be applied consistently with the new General Comment No. 24 (2019) on Children’s Rights in the Child Justice System.
Core attributes of Article 37
The core attributes of Article 37 are:
- Prohibition of capital punishment, life imprisonment, torture or degrading treatment
- Principle of non-detention of children, if necessary only as last resort and for the shortest appropriate time
- Humane treatment and respect for human dignity at all times
- No deprivation of liberty without due process
Each of these attributes can be measured in terms of structural or process implementation or in terms of outcomes achieved through implementation as outlined in the table below. Some indicators, for instance the structural ones, may be common to all attributes. Others are common to two or more attributes, while some indicators may be relevant to one attribute only. An attempt has been made to balance the use of objective and subjective data indicators as well as qualitative and quantitative ones.
What did children say?
These are some ideas that children from around the world shared with us during the Global Child Rights Dialogue (GCRD) project:
Relevant provisions within the SDGs
- Goal 16 Promote just, peaceful and inclusive societies.
- Target 16.03 Promote the rule of law at the national and international levels and ensure equal access to justice for all.
- Target 16.10 Ensure public access to information and protect fundamental freedoms, in accordance with national legislation and international agreements.
Potential sources of data for users of the indicators sets
- Global Study on Children Deprived of Liberty
- Government departments, universities and other training institutions
- National Data sets on child protection services and their use of secured facilities
- National data sets on child psychiatric services and mental health and addictions treatments and facilities
- National data sets on youth crime and youth correctional services
- Primary research by National Human Rights Institutions for Children
- Primary research by universities and NGOs
- Qualitative research with children on their knowledge of and experience in the exercise of their rights
- Surveys of parents on knowledge of their responsibilities as parents and the right of the child
References used for the overview
- Detrick, S., Doek, J.E. & Cantwell, N. (1992). The United Nations Convention on the Rights of the Child: A Guide to the “Travaux Préparatoires.” Dordrecht, The Netherlands: Martinus Nijhoff Publishers.
- Liefaard, T. (2015). Juvenile Justice from a children’s rights perspective. In W. Vanderhole, E. Desmet, D. Reynaert & S. Lembrechts (Eds.), Routledge International Handbook of Children’s Rights Studies (1st ed.,pp. 234-256 at 252-254). Abingdon, United Kingdom and New York, United States of America: Routledge.
- Vuckovic Sahovic, S., Doek, J.E. & Zermatten, J. (2012). The rights of the child in international law. Rights of the child in a nutshell and in context: all about children’s rights (1st ed., pp. 298). Berne, Switzerland: Stampfli Verlag AG.
References used to create indicators
- Annie E. Casey Foundation. (2017). 2017 Kids Count Data Book. State trends in child well-being. Baltimore, United States of America: The Annie E. Casey Foundation.
- Juristat, National Crime Reporting Database, Canada. Available from https://www150.statcan.gc.ca/n1/pub/85-002-x/index-eng.htm
- New Brunswick Child Rights Indicators Framework
- United Nations General Assembly. (2015). Sustainable Development Goals. Retrieved from https://sustainabledevelopment.un.org/?menu=1300
- United Nations Office on Drugs and Crime & United Nations Children’s Fund (UNICEF). (2006). Manual for the Measurement of Juvenile Justice Indicators. New York, United States of America: United Nations. Retrieved from https://www.unodc.org/pdf/criminal_justice/Manual_for_the_Measurement_of_Juvenile_Justice_Indicators.pdf
- United Nations Office of High Commissioner of Human Rights (OHCHR) (2012). Human Rights Indicators: A Guide to Measurement and Implementation (HR/PUB/12/5). Retrieved from http://www.ohchr.org/Documents/Publications/Human_rights_indicators_en.pdf
- United Nations Office of the High Commissioner for Human Rights. (2019). Children deprived of liberty – The United Nations Global Study. Retrieved from https://www.ohchr.org/EN/HRBodies/CRC/StudyChildrenDeprivedLiberty/Pages/Index.aspx
- UNICEF. (2007). Implementation handbook for the Convention on the Rights of the Child (Fully rev. 3rd ed.). Geneva, Switzerland: UNICEF
Glossary/key words
Child-friendly justice
Child-friendly justice refers to “justice systems which guarantee the respect and the effective implementation of all children’s rights at the highest attainable level, bearing in mind the principles listed below and giving due consideration to the child’s level of maturity and understanding and the circumstances of the case. It is, in particular, justice that is accessible, age appropriate, speedy, diligent, adapted to and focused on the needs and rights of the child, respecting the rights of the child including the rights to due process, to participate in and to understand the proceedings, to respect for private and family life and to integrity and dignity” (The Council of Europe, 2011).
Deprived of liberty
“Detention” refers to the deprivation of liberty or confinement in a closed place which an asylum-seeker is not permitted to leave at will, including, though not limited to, prisons or purpose-built detention, closed reception or holding centres or facilities.
Deprivation of personal liberty is without free consent. The term “deprivation of liberty” includes the period from the initial moment of apprehension, and extends to the arrest, pretrial and post-trial detention periods. This includes placing individuals in temporary custody in protective detention or in international or transit zones in stations, ports and airports, house arrest, rehabilitation through labour, retention in recognized and non-recognized centres for non-nationals, including migrants regardless of their migration status, refugees and asylum seekers, and internally displaced persons, gathering centres, hospitals, psychiatric or other medical facilities or any other facilities where they remain under constant surveillance as this may not only amount to restrictions to personal freedom of movement, but also constitute a de facto deprivation of liberty. It further includes detention during armed conflicts and emergency situations; administrative detention for security reasons; and the detention of individuals considered as civilian internees under international humanitarian law.
Detention
“The Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (1988) defines detention as follows:
- ‘Detained person means any person deprived of personal liberty except as a result of conviction for an offense;
- ‘Detention’ means the condition of detained persons as defined above.
“The term therefore normally refers to pre-trial detention only. However, in some countries, this term is used as a synonym to deprivation of liberty. For simplicity purposes, this is how these terms are used in the present toolkit. In the case of children, detention should always be a measure of last resort and for the shortest appropriate period of time as per article 37 b) CRC. [See last resort]” (UNICEF, 3020).
Institutional charges
Institutional charges relate to charges which young offenders may accumulate for breaches of the rules of their place of detention, separate from the charges which may have led to their initial placement in custody.
Pre-trial detention
A child or youth who detained while awaiting trial (UN, 1994).
Remand prisoners are detained during criminal investigations and pending trial. Pre-trial detention is not a sanction, but a measure to safeguard a criminal procedure (Penal Reform International, 2013).
“Pretrial detention” is defined as the period during which an individual is deprived of liberty (including detention in police lock-ups) through to conclusion of the criminal trial (including appeal). Other terms commonly used for pretrial detainees include “remand prisoners,” “remandees,” “awaiting trial detainees,” “untried prisoners,” and “unsentenced prisoners'” (UNDP & Open Society Justice Initiative, 2010).
Restorative justice
Restorative justice is an approach in which the victim/survivor and offender, and in some cases other persons affected by a crime, “participate actively together in the resolution of matters arising from the crime, generally with the help of a facilitator.” (UNICEF, 2010).
Restorative justice is a way of responding to criminal behaviour which emphasises repairing the harm caused by the crime and ‘restoring’ harmony as much as possible between offender, victim/survivor and society. It mainly involves some form of mediation and conflict resolution and often results in apologies, reparation, compensation and community service. In contrast to ‘retributive justice’, which focuses on punishing the offender via a two-way relationship (offender and state), ‘restorative justice’ addresses harm, needs, accountability and obligations via a three-way relationship (offender, victim/survivor and society). Restorative justice: makes the offender responsible for reparation of harm caused by the offence; gives the offender an opportunity to prove his/her positive capacity and qualities; tackles guilt feelings in a positive way; and involves others who have a role in conflict resolution including victims/survivors, parents, extended family members, schools and peers.
Trauma informed care
Trauma-sensitive approaches takes into consideration the impact of trauma when gathering information from trauma survivors, analysing that information and take corrective action to redress human rights violations (UNHCHR, 2011).
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