A/HRC/29/26
66.
It is essential to remember that all processes in which a child is heard and
participates must be voluntary, transparent, informative and respectful, be set in a childfriendly environment and use child-sensitive methods.26
3.
Deprivation of liberty and other types of sanctions
67.
As seen above, because of their unique vulnerability, children in conflict with the
law require higher standards and broader safeguards to be applied to them, particularly at
the sentencing stage in criminal proceedings. For instance, the Human Rights Committee
recognized that article 24, paragraph 1, of the International Covenant on Civil and Political
Rights, which grants children the right to special protection measures owing to their status
as minors, “entails the adoption of special measures to protect the personal liberty and
security of every child, in addition to the measures generally required by article 9 for
everyone”.27
68.
While criminal sanctions can encompass a broad range of measures, the Special
Rapporteur is particularly concerned about the situation of children deprived of their liberty
as a result of a criminal trial. Indeed, in a recent report, the Special Rapporteur on torture
and other cruel, inhuman or degrading treatment or punishment highlighted that “children
deprived of their liberty are at a heightened risk of violence, abuse and acts of torture or
cruel, inhuman or degrading treatment or punishment”. He further stated that “even very
short periods of detention can undermine a child’s psychological and physical well-being
and compromise cognitive development. Children deprived of liberty are at a heightened
risk of suffering depression and anxiety, and frequently exhibit symptoms consistent with
post-traumatic stress disorder”.28 Finally, he noted that a number of studies had shown that,
“regardless of the conditions in which children are held, detention has a profound and
negative impact on child health and development”.29
69.
According to the Havana Rules, deprivation of children’s liberty should be limited to
exceptional cases. The Convention on the Rights of the Child requires that a child may be
deprived of his or her liberty only as a measure of last resort and for the shortest period of
time possible (art. 37). It further stipulates that any decision to deprive a child of liberty
must be subject to periodic review of its continuing necessity and appropriateness.30
Finally, “the best interests of the child must be a primary consideration in every decision to
initiate or continue the deprivation”.31
70.
It is essential, therefore, that judges in particular, but also prosecutors, be aware of
the specific negative effects the criminal sanctions they can order may have on children, in
particular sanctions involving deprivation of liberty. Prosecutors and judges must primarily
consider the best interests of the child when requesting and imposing sanctions on children
and this includes making an individual analysis of the circumstances of both the offence
and the child. Prosecutors and lawyers should always first consider alternative measures to
detention, such as care, guidance and supervision orders, counselling, probation, foster care,
education and vocational training programmes, to ensure that children are treated with full
respect for their needs and rights, as well as for their well-being and development.32
71.
The Special Rapporteur wishes to recall that some types of sanctions are forbidden
under international law when it comes to their application to persons who were children at
the time of the offence. She concurs with the Special Rapporteur on torture, who pointed
26
27
28
29
30
31
32
14
Committee on the Rights of the Child general comment No. 12, para. 134.
Human Rights Committee general comment No. 35 (2014) on liberty and security of person, para. 62.
A/HRC/28/68, para.16.
Ibid., para 33.
See also Human Rights Committee general comment No. 35, para. 62.
Ibid., para. 62.
See article 40 of the Convention on the Rights of the Child.
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