A/HRC/21/26
trial.29 Such proceedings shall be conducive to the best interests of the child and be
conducted in an atmosphere of understanding, which shall allow the children to participate
therein and to express themselves freely. 30 Furthermore, the Beijing Rules establish that the
competent authority shall have the power to discontinue the proceedings at any time. 31
Alternative measures
14.
According to the Havana and the Beijing Rules, all efforts should be made to apply
alternative measures to detention of children.32 Article 40, paragraph 4, of the Convention
on the Rights of the Child provides a non-exhaustive enumeration of dispositions that shall
be made available to ensure that children are dealt with in a manner appropriate with their
well-being and proportionate both to their circumstances and the offence, such as
counselling, probation, foster care, education and vocational training programmes and other
alternatives to institutional care.33
15.
In addition, the Tokyo Rules provide a set of basic principles for the use of noncustodial measures and minimum safeguards for persons subject to alternatives to
imprisonment. In particular, rule 3 of the Tokyo Rules provides legal safeguards when
applying non-custodial measures.
Prohibited penalties
16.
Several international instruments prohibit the imposition of the death penalty. 34
Furthermore, life imprisonment without the possibility of parole should not be imposed for
offences committed by children.35 In addition, the Beijing Rules provide that children shall
not be subjected to corporal punishment. 36 In various decisions, the Human Rights
Committee established that corporal punishment constitutes cruel, inhuman and degrading
treatment or punishment contrary to article 7 of the International Covenant on Civil and
Political Rights.37
Deprivation of liberty
17.
The right to liberty and security of the person, including children, is embodied in
article 9 of the International Covenant on Civil and Political Rights. Paragraph 1 of article 9
prohibits unlawful or arbitrary arrest or detention and requires deprivation of liberty to be in
conformity with the law.38
29
30
31
32
33
34
35
36
37
38
6
Rule 14.1, ibid.
Rule 14.2, Beijing Rules.
Ibid., Rule 17.4.
Rule 17, Havana Rules; Rule 18.1, Beijing Rules.
See also rule 18, Beijing Rules.
Art. 37(a), Convention on the Rights of the Child; art. 6, para, 5, International Covenant on Civil and
Political Rights; art. 1, Second Optional Protocol to the International Covenant on Civil and Political
Rights; rule 17.2, Beijing Rules.
Art. 37(a), Convention on the Rights of the Child.
Rule 17.3.
See Human Rights Committee, Osbourne vs Jamaica, Communication No. 759/1997
(CCPR/C/68/D/759/1997), para. 9.1; Higginson vs Jamaica, Communication No. 792/1998
(CCPR/C/74/D/792/1998), para. 4.6; Sooklal vs Trinidad and Tobago, Communication No. 928/2000
(CCPR/C/73/D/928/2000), para. 4.6; Human Rights Committee, General Comment No. 7, para. 2.
Art. 9, para. 1, International Covenant on Civil and Political Rights; also arts. 37(b), Convention on
the Rights of the Child; principle 2, Body of Principles for the Protection of All Persons under Any
Form of Detention or Imprisonment.
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