A/HRC/21/25
Sentences for child offenders should be determinate and periodically reviewed in order to
allow for early release.
5.
Mandatory minimum sentences
62.
Some countries set mandatory sentences for offenders, including children (especially
those tried as adults or before adult courts). These establish extended sentences as the
mandatory punishment for certain crime categories. This prevents courts from considering
the individual circumstances of the child, proportionality and rehabilitative goals, and is
contrary to the principle recognized by the Convention on the Rights of the Child of
deprivation of liberty as a measure of last resort and for the shortest appropriate period of
time.41
63.
Children must always have the right to appeal their sentences, and must be assisted
by the State in the provision of legal assistance where it is required.
F.
Other systemic issues
64.
Other systemic problems or challenges include the fact that juvenile justice is an
intersectoral process involving many role players from different government departments
and State institutions, and there is often a lack of co-operation between these.
65.
Furthermore, there is a lack of data collection and analysis in relation to the situation
of children in the juvenile justice system, and there is a lack of accountability for violence
against children or for failure to protect them from violence, including with regard to
compensation.
VI. Recommended strategies to prevent and respond to violence
against children in the juvenile justice system
1.
Preventing children from becoming involved with the juvenile
justice system
66.
The fewer children there are in the criminal justice system, the lower the risk of
their exposure to violence in that system. It is important for States embarking on
measures to prevent and respond to violence in the juvenile justice system to ensure
that an appropriate environment exists for the primary prevention of children coming
into the criminal justice process.
67.
There is an urgent need to strengthen national child protection systems that can
effectively ensure that children’s rights are safeguarded instead of perpetuating the
criminalization of children. States should act to prevent the criminalization and
penalization of children and reduce the number of children deprived of liberty,
including through: (a) decriminalizing “status offences”, such as begging or loitering;
preventing the detention of unaccompanied migrant children and asylum seekers; (b)
ensuring that children with mental health problems are appropriately cared for and
not dealt with by the criminal justice system if possible; and (c) avoiding the criminal
justice system for treating children with substance abuse problems. There is also a
41
14
In South Africa, such sentences were found to be unconstitutional for offenders below 18 years at the
time of the offence. See Centre for Child Law v. Minister of Justice and Constitutional Development,
2009 (2) SACR 477(CC).
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