A/HRC/21/25
E.
The right to appear before a court or tribunal to challenge detention
28.
Building upon children‟s right to challenge the legality of deprivation of liberty
before a court and to have a prompt decision on such action, the Committee on the Rights
of the Child in its general comment No. 10 (2007) on children‟s rights in juvenile justice
provides that no child should be detained for more than 24 hours without a judicial order.
However, even countries where there is a shorter specified time period do not always
manage to abide by the law. A study conducted in Tanzania by the Commission for Human
Rights and Good Governance supported by Penal Reform International indicated that 70
per cent of children sent to police stations are detained for more than 24 hours before being
sent to the courts.16
29.
Detaining a child in a police cell for even a few hours presents a risk of violence.
Where there is no law requiring him or her to be brought before a court or other body
within a limited period of time, or if such law is flouted, children are at grave risk as the
courts are unaware of the child‟s detention. Children who do not have parents or families
who will raise concerns can get “lost” in the system under these circumstances. 17
F.
Risks at court and during trial
30.
Appearance before a court or tribunal is considered a protective factor and presiding
officers and prosecutors can do much to prevent delay and ongoing detention of children.
Too often, however, they are neglectful or indifferent to the plight of children, and thereby
contribute indirectly to the harm children suffer. In some instances, they directly contribute
to psychological and verbal violence against children in the manner that they interrogate or
cross-examine them in court. The court process itself may be experienced as
psychologically violent by children, and this will be greatly alleviated if the child is assisted
by a parent/guardian/responsible adult, and by a legal representative or assistant.
31.
Court admission of evidence obtained through torture or threats is a common
occurrence in many justice systems, and this contributes to the rising problem of impunity.
G.
Risks associated with pretrial detention
32.
The majority of children deprived of their liberty are in pretrial detention, and it is
disturbing that many of these children are subsequently found not guilty. 18
33.
There is a lack of oversight and monitoring in pretrial detention, particularly in
police cells. Lack of contact with the outside world is less frequent than for sentenced
children, which means that children who are ill-treated have fewer possibilities to report
incidents. There are also risks of violence related to court appearance, with children often
transported to court and held in court holding cells together with adults.
16
17
18
8
Commission for Human Rights and Good Governance, Inspection Report for Children in Detention
Facilities in Tanzania (June 2011).
Human Rights Watch, Children of the Dust: Abuse of Hanoi Street Children in Detention (2009).
UNICEF, The Development of Juvenile Justice Systems in Eastern Europe and Central Asia: Lessons
from Albania, Azerbaijan, Kazakhstan, Turkey and Ukraine (2009).
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